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Home My WebLink AboutC-3460 - PSA for Back Bay Science Center on Shellmaker IslandAMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH DOUGLAS G. BARNHART, INC. FOR BACK BAY SCIENCE CENTER ON SHELLMAKER ISLAND V THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this 2a" day of Ja+-1ue-+2Y 2cv:+ by and between the CITY OF NEWPORT BEACH, a municipal corporation ("City") and DOUGLAS E. BARNHART, INC., a California corporation, whose local address is 10760 Thornmint Road, San Diego, California 82127, ("Barnhart"), is made with reference to the following: RECITALS A. On February 28, 2006, City and Barnhart entered into a Construction Management at Risk Services Agreement, hereinafter referred to as the "Agreement", for construction management services for the Back Bay Science Center on Shellmaker Island in the UpperNewport Bay Ecological Reserve, hereinafter referred to as "Project". B. City desires to enter into this Amendment No. 1 to reflect additional services not included in the Agreement. C. City desires to compensate Barnhart for additional construction management at risk services as needed for Project. D. City and Barnhart mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 1 ", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Barnhart shall be compensated for services performed pursuant to this Amendment No. 1 according to "Exhibit A" dated August 10, 2006, attached hereto. 2. Total additional compensation to Barnhart for services performed pursuant to this Amendment No. 1 for all work performed in accordance with this Amendment, including all reimbursable items and subconsultant fees, shall not exceed Ninety Eight Thousand Three Hundred Sixteen Dollars ($98,316). 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: Z!6-� C..� Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH, A Mu i ' al Copo tion i) By: Mayor for the City of Newpo Bach DOUGLAS E. BARNHART, INC. A California Corpor tion By�8 By: LaVonne Harkless, (Corporate fficer) City Clerk Title: 1 ` Print Name: c� ,� rr►G'� ✓� Y� By: (Financial Officer) Title: I0liTii00117-3 Attachment: Exhibit A — Scope of Work f:\users\pbw\shared\agreements\fy 06-07\barnhart-back bay science center-1.doc Ah August 10, 2006 EXHIBIT A Barnhart, inc. Via Facsimile Ca) (949) 640 -9076 Mr. Gail Pickart, P.E. 3810 East Coast Hwy., Suite 4 Corona del Mar, CA 92625 Re: Newport Beach Back Bay Science Center CM Q Risk Services Dear Gail: We are pleased to have seen the successful fledging of the Osprey chicks, and excited to get started again on the BBSC construction. As we mobilized on the site prior to the birds' arrival, we have expended general conditions costs that will need to be addressed. Our contract allows for a total of $34,775 per month in general conditions costs. We have been able to reduce those costs during the delay period to a total of $24,579 per month per the attached breakdown. Therefore; .this letter shall,serve as our formal request for an extension of our general conditions for. four (4) months at $24,579 per month, for a total lump sum extension of $98,316. We have taken the liberty of preparing a draft Contract Amendment that includes this extension, as well as defines the final Guaranteed Maximum Price and deletes of the retention clause. Please review the attached draft amendment and advise of any requested edits or changes. If you would prefer to receive the document in electronic format for ease of editing, let me know and I'll send it right over. Again, we are pleased to move into the construction phase of this project, and look forward to its successful completion. Thanks for all of your assistance and guidance as we have moved through this process. Should you have any questions, please give me a call. Sincerely, barnhart, inc. — Hoy- Ir�J�v� GI ekstra Senior Vice President PC: DEB - mah.,office _ . DEB... -John Bernardy DEB = jobsite DEB — reads Post Office Box 270399, San Diego, California 92198 -2399, (858) 385 -8200, FAX (858) 385 -8201 Offices in Orange County, Palm Springs, Riverside, Central Valley, Ventura and San Diego, California License No. 439407 www.debinc.com 6002 Newport Beach Back Say Science Center UNIT PRICES EXTENSIONS QTY UNIT LABOR MAT'L EQUIP LABOR MAT'L EQUIP TOTAL Supervision 15 WKS 2,090.00 31,350 31,350 Project Management 15 WKS 2,713.50 40,703 40,703 Clerk 0 WKS - - - - Scheduler 151 WKS 75.00 1 1,125 1,125 Safety Manager 15 WKS 50.00 - 750 - - 750 Field Office Rental 4 MTH - - 419.00 - - 1,676 1,676 Field Office Supplies 15 WKS 75.00 - - 1,125 - 1,125 Field Telephone 4 MTH - 425.00 - - 1,700 1,700 Field Toilets 4 MTH - 450.00 - 1,800 1,800 Project Gas & Diesel 4 MTH - 450.00 - - 1,800 - 1,800 Dum ster Rental 4 MTH - - 128.00 - - 512 512 Construction Fence 2000 LF - 3.70 - - 7,400 7,400 Weekly Clean 15 WKS 75.00 - 1,1251 1,125 CM Equipment 4 MTH 1 1,812.00 - 7,248 7,248 TOTALS 73,928 2,925 21,461 1 98,314 • I� LJ CONSTRUCTION MANAGEMENT AT RISK SERVICES AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND DOUGLAS E. BARNHART, INC. This Construction Management At -Risk Services Agreement ( "Agreement') is entered into this Abtt day of February 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "CITY "), and DOUGLAS E. BARNHART, INC., a California corporation ( "BARNHART "). This Agreement is entered into with reference to the following recitals, all of which are incorporated herein by this reference. RECITALS WHEREAS, the CITY is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City; and WHEREAS, BARNHART is a California corporation duly organized and validly existing under the laws of the State of California; and WHEREAS, the CITY has obtained funding from various sources to design, install, and construct a new two- building wood framed facility and the foundation for a third building wood framed facility commonly known as the Newport Beach Back Bay Science Center which will be located on Shellmaker Island, in the Upper Newport Bay Ecological Reserve, as more particularly described and depicted in Exhibit "A" which is attached hereto and incorporated by this reference ( "the Project'); and WHEREAS, the CITY has retained Ron Yeo, FAIA, Architect, Inc., (hereinafter the "Architect") to provide and perform certain services in connection with the designing, bidding and construction of the Project; and WHEREAS, the Architect has completed preparation of the Plans and Specifications for the Project; and WHEREAS, the CITY has elected to bid construction of the Project to multiple contractors ( "Trade Contractors ") and to construct the Project by entering into separate contracts ( "Trade Contracts ") with the lowest responsible and responsive bidder for each Trade Contract; and WHEREAS, BARNHART previously provided CITY with preconstruction services and has expressed interest in providing construction management "At- Risk" services for the Project whereby BARNHART commits to complete the Project by a date certain and deliver the Project at a Guaranteed Maximum Price; and WHEREAS, the CITY desires to retain BARNHART to provide "At -Risk' construction management and additional services in connection with the Project including the Basic Services, as more particularly described in this Agreement, and BARNHART desires to provide such services; and WHEREAS, BARNHART is a professional construction manager, duly qualified and capable of providing the services described herein in accordance with the terms hereof. NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by the Parties, the Parties agree as follows: AGREEMENT ARTICLES 1. DEFINITIONS In addition to the definitions ascribed to certain words, phrases or terms in the Preamble or Recitals of this Agreement, the following words, phrases or terms shall have the following definitions: "Architect" shall have the meaning ascribed to the term in the Recitals of this Agreement. "BARNHART" shall have the meaning ascribed to the term in the Preamble of this Agreement. "BARNHART Contingency" the total amount of BARNHART's Contingency shall be Two Hundred and Twenty -Five Thousand Dollars and No /Cents ($225,000.00) and shall be included in the Trade Contracts for the exclusive use of BARNHART as provided herein. "Basic Services" means all services, except Additional Services, to be performed by BARNHART under this Agreement and which services are more particularly described in Articles 2, 4 and 5. "CITY" shall have the meaning ascribed to the term in the Preamble of this Agreement. "Completion Date" shall be eleven (11) months after the date set forth in the Notice to Proceed issued by the CITY to BARNHART. The Completion Date may be adjusted in accordance with the provisions of this Agreement. "Construction Cost Estimates" means estimate of the costs of labor, materials, equipment and services plus a reasonable allowance for the Trade Contractors' profit, overhead and administrative cost as necessary to complete construction of the Project in accordance with the Plans and Specifications. "Construction Cost Statement," "CCS" and "Guaranteed Maximum Price" each mean and refer to the fixed amount of FOUR MILLION FOUR HUNDRED NINETY - FOUR THOUSAND THIRTY -THREE DOLLARS and NO CENTS ($4,494,033.00), which is more particularly described in Exhibit "B," attached hereto and incorporated Pa • • by this reference, and which shall include the following: (a) the aggregate amount of all the Trade Contracts, less BARNHART's Contingency included in each Trade Contract, entered into by the CITY with the Trade Contractor's to construct the Project; (b) sales, use, gross receipts and similar taxes; (c) BARNHART's Contingency; and (d) all other Project costs not specifically excluded herein. The following costs are excluded from the CCS and BARNHART's Contingency shall not be used to pay the following costs: (a) a CITY directed change to a Trade Contract; (b) Differing Site Conditions; (c) changes to a Trade Contract directed by a governmental agency with jurisdiction over the Project or portions thereof; (d) changes to a Trade Contract caused by the CITY or a CITY's Consultant other than BARNHART; (e) changes to a Trade Contract necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by BARNHART at the time this Agreement was entered into; (f) costs, fees, or expenses paid to the Architect; (g) costs of salaries and benefits paid to CITY employees engaged in connection with the Project; (h) costs, fees or expenses paid to Test/inspection Service Providers; (i) costs or fees for obtaining permits or approvals (except to the extent included in the scope of a Trade Contract awarded by the CITY); (j) costs, expenses or fees of other consultants retained by the CITY in connection with the Project ( "CITY Consultants "); (k) The Percentage Payment and General Condition Payment to be paid under this Agreement; (1) any amount set aside by CITY as CITY Contingency; (m) site acquisition costs; and (n) the costs of furniture, furnishing and /or equipment for the Project which are not included in the scope of the Trade Contracts. The Parties agree that BARNHART's Contingency shall be for the exclusive use of BARNHART and used to pay the following costs, if any: (a) scope gaps and/or omissions in the division of work between the Trade Contractor(s); (b) constructability errors in the Plans and /or Specifications; (c) those conditions not included and /or wrongly included in the Plans and Specifications; and /or (d) any delay attributable to BARNHART, except that BARNHART shall not be responsible and/or liable and /or required to use the BARNHART Contingency to pay for design errors and /or other errors in the Design Documents attributable to the Architect, Engineer and /or design team. Where applicable, the terms "Construction Cost Statement," "CCS" and "Guaranteed Maximum Price" shall each include adjustments made in accordance with this Agreement. "Construction Schedule" means the written or graphic description of the scheduling, sequencing and interrelationships of activities necessary to complete a Trade Contract. Construction Schedules are prepared by the Trade Contractors for review by BARNHART and acceptance by the CITY and for incorporation into the Master Project Schedule by BARNHART. "Day" means a calendar day unless otherwise specifically designated. "Design Documents" means the drawings, specifications, calculations and other work product and Instruments of Service prepared by or on behalf of the Architect for the Project. Design Documents include surveys, soils reports and other documents prepared for the Project by a licensed Architect or Registered Engineer, whether under 3 contract to the Architect or CITY. "Designated CITY Representative" means the Public Works Director or his /her designee as set forth in writing to BARNHART. The Designated CITY Representative shall be authorized to render decisions on behalf of the CITY and to carry out the CITY's responsibilities under this Agreement, all of which shall be discharged or performed in a manner so as to avoid unreasonable delay in the orderly and sequential progress of BARNHART's performance of services and other obligations hereunder. "Differing Site Conditions" are subsurface or latent physical conditions at the Project Site differing materially from those conditions indicated or reasonably inferable from a reasonable evaluation in accordance with industry custom or unknown or unforeseen physical conditions at the Project Site of an unusual nature, differing materially from conditions normally encountered and generally recognized as inherent in work of the nature provided for in the Plans and Specifications. "Final Completion" means the time when all of the work of a Trade Contract has been completed and installed (including items noted for correction, repair or modification upon Substantial Completion) and the Trade Contractor has completed all other obligations to be performed on its part under the Trade Contract. "Master Project Schedule" means and refers to the schedule for the performance of this Agreement which incorporates the Trade Contractor's separate Construction Schedules. The Master Project Schedule, and any revisions thereto, must be reviewed and approved by the CITY. "Parties" means and refers, collectively, to the CITY and BARNHART. "Party" means and refers, individually, to either the CITY or BARNHART, as applicable. "Permissible Delay" means a delay that impacts a critical path item set forth in the Master Project Schedule and which is caused by any of the following: (a) a CITY directed change to a Trade Contract; (b) Differing Site Conditions; (c) changes to a Trade Contract directed by a governmental agency with jurisdiction over the Project or portions thereof; (d) changes to a Trade Contract caused by the CITY or its consultants, including, but not limited to, the Architect; (e) changes to a Trade Contract necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by BARNHART at the time this Agreement was entered into; and (f) delays arising out of environmental site conditions known or unknown to the Parties including, but not limited to, flora, fauna, wildlife, endangered species, nesting or mating of species and/or related to the existing ecological preserve. 0 2. "Plans and Specifications" means and refers to all plans and specifications for soliciting bids for the construction and installation of the Project on the Project Site as approved by the City's Public Works Director or City Engineer, in his/her sole and absolute discretion, prior to any bid solicitation or construction. "Project" shall have the meaning ascribed to the term in the Recitals of this Agreement. "Project Site" means the physical area for construction and activities relating to construction of the Project, on Shellmaker Island, in the Upper Newport Bay Ecological Reserve, in Newport Beach, California, as more particularly described and depicted in Exhibit "A ". "Submittals" means shop drawings, product data, documents, or samples prepared or provided by a Trade Contractor or a subcontractor to a Trade Contractor or suppliers illustrating or relating to the work of the Project. "Substantial Completion" means the time when all work of a Trade Contract has been completed and installed and the work can be used or occupied for its intended purposes, subject only to minor corrections, repairs or modifications. "Test/inspection Service Providers" means the consultant(s) hired by the CITY to test and /or inspect the Project work. "Trade Contract" means a construction contract awarded by the CITY to a Trade Contractor for the construction of a portion of the Project. "Trade Contractor" means a contractor who has been awarded a Trade Contract by the CITY for construction of a portion of the Project. BASIC SERVICES 2.1 General: Phases of Basic Services. BARNHART shall provide and perform the Basic Services more particularly described in this Agreement. The Basic Services shall be performed and completed in a series of sequential Phases generally described as: (a) Construction Phase, as set forth in detail in Article 4 below; and (b) Post - Construction Phase, as set forth in detail in Article 5 below. The scope of BARNHART's Basic Services and obligations during each Phase of the Basic Services shall be as set forth herein. 2.2 Relationship of BARNHART to Other Project Participants. BARNHART's services hereunder shall be provided in conjunction with contracts between the CITY and: (a) the Architect; (b) the Trade Contractors; (c) Test/Inspection Service Providers; and (d) others providing services in connection with bidding and /or construction of the Project. The Architect is responsible for the adequacy and sufficiency of the Project design and the contents of Design Documents for the Project. The Architect shall perform its duties in accordance with its contract(s) with the CITY. Except as expressly set forth herein, neither this Agreement, nor BARNHART's rendition of services hereunder shall be deemed BARNHART's assumption of responsibility for the adequacy or sufficiency of the Project design or the Design Documents for the Project, which are and remain that of the Architect. In accordance with the scope of Basic Services described herein, BARNHART shall be responsible for assisting the CITY in the selection and retention of Test/Inspection Service Providers and generally coordinating the services of the Test/inspection Service Providers during the Construction Phase. BARNHART is not, however, responsible for the completeness or accuracy of the work product or services provided by Test/inspection Service Providers. BARNHART shall be responsible for coordinating project inspection with the City's Building Department. BARNHART shall review the work of the Trade Contractors and request building inspections when appropriate. 2.3 BARNHART Standard of Care. BARNHART shall provide the Basic Services and authorized Additional Services using its best professional skill and judgment, acting with due care and in accordance with professional standards of care, the terms hereof and applicable law, ordinance, rule or regulation. BARNHART's services hereunder shall be provided and completed promptly and in such a manner as to avoid hindrance, interruption or delay to the orderly progress and timely completion of Project bidding and construction. 3. CITY RESPONSIBILITIES 3.1 CITY Information. The CITY shall provide full information regarding the Project, including the CITY's objectives, financing, schedule requirements and other constraints and requirements which may affect the budget for the Project, time for completion of the Project or the scope of the Project work. 3.2 Tests /Inspections. In accordance with applicable law, ordinance, rule or regulation, the CITY shall retain Test /inspection Service Providers to conduct Construction Phase tests /inspections of materials /equipment forming a part of the Project, as required by applicable law, ordinance, rule or regulation. The foregoing notwithstanding, as set forth below, the Basic Services of BARNHART include assistance to the CITY in identifying, selecting and retaining Test/inspection Service Providers. The City's Building Department will be responsible for inspecting the work with respect to applicable Building code compliance. 3.3 CITY Consultants. CITY reserves the right to employ other consultants in connection with the Project. Except for consultants retained by the Architect, other consultants required or desired by the CITY in connection with the Project shall be retained and paid for by the CITY. Such other consultants include, without limitation, the Designated CITY Representative, legal counsel, materials i 0 testing, geotechnical, special inspection, or insurance /surety consultants. 4. CONSTRUCTION PHASE 4.1 Administration and Coordination of Trade Contracts and Construction. BARNHART will provide administrative, management and related services necessary to administer the Trade Contracts and to schedule, sequence and coordinate the Project work of the Trade Contractors during the Construction Phase of the Project including, but not limited to, the following: (a) receive, review and forward to the CITY and the Architect the Trade Contractors' Certificates of Insurance and Bonds along with commentary as to the extent to which the same comply with requirements of each Trade Contract; (b) advise and make recommendations to the CITY regarding the issuance of Notice to Proceed directing the Trade Contractors to commence of work under the Trade Contracts; (c) scheduling, coordinating and conducting pre - construction and construction meetings; recording, maintaining and distributing minutes thereof; (d) in consultation with the Architect, develop and implement procedures for the submittal and processing of Submittals required by each Trade Contract; (e) in consultation with the CITY and the Architect, develop and implement procedures for the handling and disposition of the Trade Contractors' requests for information or clarifications; (f) establish and implement procedures for the transmittal and receipt of communications, drawings and other information between BARNHART, Architect and the Trade Contractors relating to Project construction; (g) assist the CITY in selection and retention of Test/Inspection Service Providers; (h) schedule, sequence and coordinate activities of the Trade Contractors; (i) request and coordinate inspections by the Building Department; and (j) allocate Site staging and storage areas. 4.2 Monitoring of Construction Costs. BARNHART will monitor on -going actual construction costs and advise the CITY of the financial condition of the Project by: (a) development of Project cash flow reports, forecasts and other financial reports to the CITY, including those reflecting variations between actual construction costs and the estimated costs of unperformed Project activities; (b) maintaining records reflecting the actual costs for activities completed or in progress, including records relating to work performed on a unit cost basis and additional work performed by the Trade Contractors on a time and materials basis; (c) monitor and advise the CITY of costs pertaining to potential, pending and completed changes to any Trade Contract; and (d) advising and making recommendations to the CITY for adjustments to CITY's budget for the Project relative to actual or anticipated construction costs. BARNHART shall prepare and submit cost reports to the Designated CITY Representative on a monthly basis; provided that if the Designated CITY Representative reasonably determines that more frequent cost reports are required, BARNHART shall comply with the directive(s) of the Designated CITY Representative. The information compiled by BARNHART and reports generated by BARNHART relating to actual construction costs shall be in such detail and format as ►1 required by the Designated CITY Representative. In addition the extent of detail and the nature of the format of such reports, the information compiled by BARNHART and reports generated by BARNHART shall specifically indicate the original Contract Price of each Trade Contract, the extent of adjustment of the Contract Price to each Trade Contract by CITY approved Change Orders and the extent of potential further adjustment of the Contract Price of each Trade Contract as of the date of BARNHART's report based upon the Change or potential Changes known at the time of BARNHART's preparation of a cost report for a Trade Contract. 4.3 Applications for Progress Payments. BARNHART will participate in the review and disbursement of Progress Payments to the Trade Contractors and in consultation with the CITY and the Architect, make recommendations for the disbursement of Progress Payments to the Trade Contractors as follows: (a) BARNHART will assist in the development of procedures for submittal, review, processing and disbursement of Progress Payments to Trade Contractors, along with associated forms and reporting systems; (b) based upon BARNHART's observations and evaluations of each Application for Progress Payment, BARNHART will review and certify to the CITY the amount due on each such Application for Progress Payment; BARNHART's certifications constitute a representation to the CITY that, based on BARNHART's observations at the Project Site, the data in each Application for Progress Payment, and to the best of BARNHART's knowledge, information and belief, the work has progressed to the point indicated in the Application for Progress Payment and the quality of the work is in generally in accordance with the Plans and Specifications for the Trade Contract; and (c) BARNHART's representations relative to Applications for Progress Payment are subject to an evaluation of the work for conformity with the requirements of the applicable Trade Contract for the Substantial Completion of each Trade Contract, results of subsequent tests, inspections and other procedures, minor deviations from requirements of the Trade Contracts correctable prior to completion and any specific qualifications expressed by BARNHART in its certification. BARNHART's issuance of a Certificate pursuant to the preceding procedures shall be a representation that the Trade Contractor is entitled to payment in the amount so certified. BARNHART's review of Applications for Progress Payment shall be undertaken and completed in a timely manner so that the CITY can meet its obligations to make Progress Payment due each Trade Contractor within the time permitted by the Trade Contract and /or applicable law without incurring interest liability or other penalties /liabilities. 4.4 Substantial Completion: Punchlist. In consultation with the Architect and the CITY, BARNHART will assist in ascertaining the achievement of Substantial Completion of the work of each Trade Contract. If upon inspection of the work of a Trade Contractor, BARNHART determines that Substantial Completion has not been achieved, BARNHART will assist the Architect in noting the conditions of the work and the measures necessary for the Trade Contractor to achieve M n L. 0 Substantial Completion of its portion of Project construction. Upon each Trade Contractor achieving Substantial Completion, BARNHART will participate with the CITY and the Architect to inspect the work completed by each Trade Contractor to note punchlist items to be completed by the Trade Contractor as a condition to achieving Final Completion of the Trade Contract. 4.5 Project Progress. 4.5.1 Master Project Schedule. BARNHART will, in consultation with the CITY, develop an overall comprehensive Master Project Schedule for construction of the Project showing the activities of each of the Trade Contractors necessary for completion of Project construction. BARNHART will incorporate the Trade Contractors' separate Construction Schedules into the Master Project Schedule. The Master Project Schedule shall be subject to review and approval by the CITY. During the course of Project construction and based upon Trade Contractors' updated Construction Schedules, BARNHART shall monitor and update the Master Project Schedule on a monthly basis or more frequently as may be requested from time -to -time by the CITY so that the CITY is kept fully informed at all times of the status and progress of overall Project construction and the status of each Trade Contractors' construction progress. Any updates to the Master Project Schedule shall be subject to review and approval by the CITY. Where the actual rate of Project construction progress is behind that indicated by the Master Project Schedule, BARNHART shall advise and make recommendations to the CITY for remedial action. 4.5.2 Trade Contractors' Schedules. BARNHART shall review the Trade Contractors' Construction Schedules and updates thereof, advising the CITY of compliance with the terms of the Trade Contract along with measures appropriate to obtain compliance if necessary. 4.5.3 Coordination of Construction Activities. BARNHART shall coordinate the activities of the Trade Contractors with each other and those of BARNHART, the Architect, Test/Inspection Service Providers and the CITY in conformity with the Master Project Schedule, including the coordination and sequencing of Trade Contractors' construction activities so that Site space is appropriately allocated and the Master Project Schedule is maintained. A material obligation of BARNHART under this Agreement is the scheduling, coordination and sequencing the activities of the Trade Contractors in a manner so that Project construction is completed in accordance with the Master Project Schedule, by the Completion Date and for the Guaranteed Maximum Price, as may be adjusted in accordance with the provisions contained in this Agreement. 4.5.4 Progress Records. BARNHART will maintain records of the progress of Project construction, including written progress reports and photographs reflecting the status of Project construction and percentage completion. BARNHART will maintain daily records during Project construction showing weather conditions, Trade Contractors and their subcontractors at the Project Site, work accomplished under each Trade Contract, problems encountered and other matters materially affecting the Project, completion of the Project or actual construction costs. BARNHART and CITY shall meet at regular mutually agreed intervals to discuss Project progress, problems encountered, and other matters materially affecting the Project, schedule, completion of the Project or actual construction costs. 4.5.5 Substantial Completion and Final Completion. Upon request of a Trade Contractor, BARNHART will, in conjunction with the Designated CITY Representative, and the Architect, determine that Substantial Completion and Final Completion have been achieved under that Trade Contractors' Trade Contract. Upon determining that Substantial Completion /Final Completion of a Trade Contact has been achieved, BARNHART, after obtaining CITY's approval, shall issue Certificates of Substantial Completion and Final Completion for that Trade Contract, as applicable. Except as provided herein, BARNHART shall ensure that the Project is completed by the Completion Date. 4.6 Site Observations. 4.6.1 BARNHART On -Site. During Project construction and at substantially all times during which there are construction activities under the Trade Contracts, BARNHART shall have its Project Manager, Field Superintendent or other authorized representative at the Project Site, to observe Site construction activities and to coordinate the activities of the Trade Contractors. The foregoing notwithstanding, upon prior request of BARNHART, the CITY may consent to Trade Contractors' performance of Project Site construction activities without the Project Manager, Field Superintendent or other authorized representative of BARNHART present at the Project Site; the CITY's consent may be granted, denied, limited or conditioned in the sole absolute discretion of the CITY. BARNHART shall maintain at the Project Site the Trade Contracts, Drawings, Specifications, approved Change Orders, Submittals, applicable codes, rules and regulations and other written or electronic materials relating to the Project. 4.6.2 Construction Quality. BARNHART will endeavor to guard the CITY against defects and deficiencies in construction and workmanship on the basis of its Project Site observations, and a quality control program established and implemented hereunder to monitor the workmanship of iu# the Trade Contractors for conformity with: (a) accepted industry standards; (b) applicable laws, ordinances, regulations, ordinances or rules; (c) the requirements of the Trade Contracts; and (d) the Project Plans and Specifications. 4.6.3 Rejection of Work. Whenever in the ordinary course of discharging its services hereunder BARNHART shall upon the discovery or observation of patent conditions of defective or deficient construction or workmanship which has or may have an adverse impact upon building life- safety systems or operations, structural elements or integrity or the safety of persons or property, BARNHART shall take immediate action appropriate under the circumstances, including stopping the work and thereupon notifying the CITY in writing. In other circumstances where defective or deficient construction or workmanship is observed by BARNHART, the CITY shall be notified immediately in writing by BARNHART of such conditions and if directed by the CITY, BARNHART shall stop or reject such Work. BARNHART's responsibilities hereunder shall be limited to defective or deficient work of an apparent and patent nature. 4.7 Site Safetv. 4.7.1 CITY Safety Program. If applicable, prior to any Trade Contractors' performance of Work at the Site, BARNHART shall review the CITY's safety program, meet and confer with the CITY Representative to review the CITY's safety program and to address measures to be implemented by BARNHART to coordinate the safety programs of each Trade Contractor with the CITY's safety program. 4.7.2 Trade Contractors' Safety Programs. BARNHART shall review the safety programs developed by each of the Trade Contractors for purposes of coordinating the safety programs with those of the other Trade Contractors. BARNHART's responsibilities for coordination of safety programs shall not extend to direct control over or charge of, the acts or omissions of the Trade Contractors, or the subcontractors, agents or employees of the Trade Contractors or any other persons employed to perform portions of the Project. 4.7.3 Safety Violations: Safety Conditions. BARNHART shall promptly notify the Designated CITY Representative in writing of all BARNHART's observed instances of a Trade Contractors' failure to comply with applicable safety requirements. In the event of a safety violation or other unsafe conditions on or about the Project Site which have an immediate potential or actual adverse effect on life or property, BARNHART is authorized, without prior notice to the CITY or prior directive of the CITY, to take all actions deemed necessary and appropriate by BARNHART 11 under the then existing circumstances to prevent such actual or potential adverse effect. 4.8 Site General Conditions. At all times during construction activities at the Project Site, BARNHART shall provide or cause to be provided the items of personal property and services identified in Exhibit "C" (General Conditions Items) which is attached hereto and incorporated by this reference. 4.9 Chances and Claims. 4.9.1 Coordination of Chances. BARNHART will coordinate and disseminate correspondence, drawings and other written materials by and between the Trade Contractors, the CITY, Test/Inspection Service Providers and the Architect relating to Changes to the Trade Contracts. BARNHART will coordinate the Trade Contractors' performance of Changes authorized by the CITY. BARNHART will maintain a log or other written records to monitor the pendency and disposition of Changes and Change Orders to keep the CITY advised of the status of the same and the actual or potential impact of any particular Change or Change Order or the cumulative effects thereof on Construction Costs or time for completion of Project construction. 4.9.2 Processing of Changes and Chance Orders. BARNHART will assist the CITY and the Architect in evaluation of requests by Trade Contractors for issuance of Change Orders, assist in negotiations with Trade Contractors relative to Change Orders proposals and the adjustment of Contract Price or Contract Time under the Trade Contracts. BARNHART will make recommendations to the CITY and the Architect for handling and disposition of the Trade Contractors' proposals relative to Change Orders. If a Change to a Trade Contract is approved or authorized by the CITY, BARNHART will assist the CITY and the Architect in the preparation of a Change Order reflecting such approved or authorized change to the Trade Contracts. For all Change Orders that result in a change in the scope of work for any Trade Contract and/or that are required to be paid with CITY funds, BARNHART shall obtain the CITY's written consent and approval prior to effectuating or authorizing said Change Order. 4.9.3 Claims Handling. BARNHART will assist the Architect in the review, evaluation and processing of claims asserted by Trade Contractors; BARNHART will make recommendations to the CITY as to merit, handling and disposition of Trade Contractors' claims. 5. POST - CONSTRUCTION PHASE 5.1 Review and Transmittal of Trade Contractors' Close -Out Documents. 12 0 ! BARNHART shall receive from the Trade Contractors' Close -Out Documents and items to be submitted by each Trade Contractor under the terms of its Trade Contract upon completion of its obligations under the Trade Contract. BARNHART shall review each Trade Contractors' Close -Out Documents to determine conformity with requirements of each Trade Contract; if BARNHART determines that any Trade Contractors' Close -Out Documents are not in conformity with requirements of the Trade Contract, BARNHART shall make recommendations to the CITY for measures to secure compliance with the requirements of the Trade Contract. BARNHART shall deliver to the CITY Representative all of the Trade Contractors' Close -Out Documents, except for the Trade Contractors' as -built drawings which BARNHART shall transmit to the Architect for preparation of the Record Drawings. BARNHART shall monitor the Architect's preparation and completion the Project Record Drawings. 5.2 BARNHART Project Records. Within thirty (30) days of the date of issuance of a Certificate of Final Completion for a Trade Contract, BARNHART shall assemble and deliver to the CITY all of the Project Records maintained during the Construction Phase by BARNHART relating to the Trade Contract. 5.3 Trade Contractors' Post - Construction Obligations. If any Trade Contractor is obligated under the terms of its Trade Contract to provide work, labor materials or services after completion of Project construction, BARNHART shall monitor Trade Contractors' post- construction obligations for conformity with requirements of the Trade Contract. BARNHART shall make recommendations, as necessary, for securing Trade Contractors' compliance with its post- construction obligations. 6. GUARANTEED MAXIMUM PRICE 6.1 Guaranteed Maximum Price. The Guaranteed Maximum Price for the Project work is FOUR MILLION FOUR HUNDRED NINETY -FOUR THOUSAND THIRTY -THREE DOLLARS and NO CENTS ($4,494,033.00). The Guaranteed Maximum Price may only be adjusted by the following: (a) a CITY directed change to a Trade Contract; (b) Differing Site Conditions; (c) changes to a Trade Contract directed by a governmental agency with jurisdiction over the Project or portions thereof; (d) changes to a Trade Contract caused by the CITY or a CITY's Consultant other than BARNHART; (e) changes to a Trade Contract necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by BARNHART at the time this Agreement was entered into; (f) the total aggregate amount of the Trade Contracts for: (1) casework, (2) flooring, (3) specialties, and /or (4) ceramic tile less the total aggregate amount of Barnhart's Contingency included in these four Trade Contracts, which have not been awarded at the time this Agreement is entered into; (g) CITY deletions of Project work to be performed under a Trade Contract and /or (h) additional costs arising out of Permissible Delays, as 13 0 0 provided herein. In the event changes are caused in whole or in part by the acts, omissions or other conduct of BARNHART or its employees, agents or representatives, BARNHART's responsibility shall be equitably apportioned. Adjustments to the Guaranteed Maximum Price shall be reflected in a written amendment duly executed by the CITY and BARNHART ( "CCS Adjustment Amendments'). 6.2 BARNHART At -Risk. The Parties agree that: (a) BARNHART shall be responsible for ensuring that the Guaranteed Maximum Price, is not exceeded; (b) the CITY will not be responsible to expend any amount for the Project work in excess of the Guaranteed Maximum Price; and (c) any amount for the Project work over the adjusted Guaranteed Maximum Price shall be the full responsibility of BARNHART and BARNHART shall proceed with the Project as approved and pay with its own funds (after exhaustion of BARNHART's Contingency) all costs in excess of the Guaranteed Maximum Price. The Parties agree that the City shall have the right to not make a payment to BARNHART and shall have the right to retain any portion of the Contract Price necessary to complete the Project work if the total aggregate amount of the cost to complete the Project work exceeds the Guaranteed Maximum Price. BARNHART agrees that it shall be at risk for costs due to: (a) scope gaps and/or omissions in the division of work between the Trade Contractor(s); (b) constructability errors in the Plans and Specifications; (c) those conditions not included and /or wrongly included in the Plans and Specifications; and /or (d) any delay attributable to BARNHART, except that BARNHART shall not be responsible and /or liable for design errors and /or other errors in the Design Documents attributable to the Architect, Engineer and /or design team. 7. BARNHART COMPENSATION 7.1 Contract Price for Basic Services. The Contract Price for BARNHART's performance of the Basic Services under this Agreement shall consist of the following components: (a) a fixed fee in the amount ONE HUNDRED NINETY - TWO THOUSAND ONE HUNDRED AND SIX DOLLARS AND NO CENTS ($192,106.00), which is four and one -half percent (4.5 %) of the Guaranteed Maximum Price, excluding BARNHART's Contingency ( "Percentage Payment "); and (b) a fixed amount of THIRTY -FOUR THOUSAND SEVEN HUNDRED SEVENTY -FIVE DOLLARS AND NO CENTS ($34,775.00) per month for the costs of the items and services for the General Conditions which are set forth in Exhibit C, during the Construction Phase of the Project ( "General Condition Payment "). In no event shall the General Condition Payment exceed THREE HUNDRED EIGHTY -TWO THOUSAND FIVE HUNDRED AND TWENTY -FIVE DOLLARS AND NO CENTS ($382,525.00) without additional written authorization from the CITY. The Parties agree that the Percentage Payment shall be increased by four and one -half percent (4.5 %) of the total aggregate amount of the Trade Contracts for: (1) casework, (2) flooring, (3) specialties, and /or (4) ceramic tile less the total aggregate amount of Barnhart's 14 0 0 Contingency included in these four Trade Contracts, which have not been awarded at the time this Agreement is entered into. The Percentage Payment and General Condition Payment shall be collectively referred to as the "Contract Price ". The Contract Price includes, but is not limited to, the personnel expenses (inclusive of all benefits and burdens), fees and personnel expenses of any sub - consultant or subcontractor to BARNHART, travel for personnel to and from the Project Site, travel within the Counties of San Diego and Orange, insurance and all other overhead /administrative expenses or costs associated with performance of the Basic Services. The CITY shall have the right to renegotiate the Contract Price if it deletes Project work that, in the aggregate, results in a reduction of the combined value of all the Trade Contracts for the Project (excluding BARNHART's Contingency) by ten percent (10 %) or more. 7.2 Changes affecting BARNHART. BARNHART shall have a claim for additional compensation in excess of the Contract Price for additional services provided to the CITY in the event that additional services are required or are necessary due to: (a) Change Orders that, in the aggregate, results in an increase in the combined value of all the Trade Contracts for the Project (excluding BARNHART's Contingency) by ten percent (10 %) or more; (b) the default or termination of the Architect or a Trade Contractor; (c) damage to the Project prior to completion by fire or other casualty, except to the extent caused by BARNHART; (d) the addition of future systems, facilities or equipment not included within the scope of the Project as reflected in the cumulative Trade Contracts awarded by the CITY for Project Construction, unless the failure to include these items is attributable to BARNHART; (e) the need to conduct significant investigation of existing conditions or facilities or to provide measured drawings thereof; (f) the CITY's selection, procurement or installation of furniture, furnishing or equipment not included within the scope of the Project as reflected in the cumulative Trade Contracts awarded by the CITY for Project construction; and /or (g) arising out of Permissible Delays. BARNHART shall not provide any additional services prior to receiving written permission from the Designated CITY Representative. 7.3 CITY Payment of the Contract Price. 7.3.1 BARNHART Monthly Billing Statements. BARNHART shall submit monthly billing invoices to the CITY for payment of the Contract Price for Basic Services, and authorized Additional Services performed or incurred in the immediately prior month. The Parties agree that: (a) the Percentage Payment shall be paid as the Project work proceeds based on the percentage of work performed; and (b) after issuance of the Notice to Proceed, the General Condition Payment shall be paid in equal monthly installments. 15 0 0 7.3.2 CITY Payments of Contract Price. Within thirty (30) days of the date of the CITY's receipt of BARNHART's billing invoices, CITY will make payment to BARNHART of undisputed amounts of the Contract Price due for Basic Services, authorized Additional Services, and General Conditions' costs. Five percent (5 %) of all payments will be retained by the CITY. Provided that the CITY does not have any claim thereto, the CITY shall authorize release of any retained funds within thirty (30) days of BARNHART's completion of all its obligations under this Agreement. No deductions shall be made or withheld from payments due BARNHART hereunder on account of any penalty, assessment, liquidated damages or other amounts withheld by the CITY from payment to the Architect or any Trade Contractor. 7.4 CCS Contingency Shared Savings. To the extent the BARNHART Contingency set forth in the CCS is unexpended at the completion of the Project, the remaining BARNHART Contingency shall be shared between the CITY and BARNHART in the following percentage: the CITY seventy percent (70 %) and BARNHART thirty percent (30 %). Any payment due BARNHART hereunder, to which the City does not have a claim, will be paid thirty (30) days after BARNHART's completion of all terms of this Agreement. 7.5 Construction Costs Less Than Guaranteed Maximum Price. If upon Final Completion of each and every Trade Contract, the actual cost of constructing the Project which shall include: (a) the amount actually paid to the Trade Contractors for labor, materials, equipment, administrative costs, overhead, and profit under the Trade Contracts; and (b) sales, use, gross receipts and similar taxes, is less than the Guaranteed Maximum Price, as adjusted by CCS Adjustment Amendments and excluding BARNHART'S Contingency, the difference between the total actual cost of constructing the Project and the adjusted Guaranteed Maximum Price shall be retained in full by the CITY. 8. DELAYS 8.1 Permissible Delays. If a Permissible Delay occurs, the Completion Date shall be extended for the period of time caused by such Permissible Delay. If the CITY and BARNHART agree that a Permissible Delay has occurred and the period of time that the Completion Date should be extended as a result of the Permissible Delay, the Completion Date shall be extended by written agreement of the Parties. 8.2 BARNHART's Responsibility for Delays. In the event of a delay other than a Permissible Delay, damages will be sustained .by the CITY. Execution of this Agreement shall constitute agreement by the Parties that if the Project is not substantially completed by the Completion Date, the CITY will suffer damages, the actual amount of which is impractical and infeasible to determine. Therefore, the CITY and BARNHART agree that BARNHART shall pay to the W. 0 CITY as liquidated damages, and not as a penalty, the sum of Five Hundred Dollars ($500.00) per day for each and every day of delay beyond the Completion Date, as adjusted for Permissible Delays, that the Project is not substantially completed. If BARNHART fails to pay such liquidated damages, the CITY may deduct the amount thereof from any money due or that may become due to BARNHART under this Agreement. The Parties expressly agree that this liquidated damage provision is not intended to and does not cover claims by Trade Contractors, their subcontractors or suppliers for damages caused by delays attributable to BARNHART. The Parties also agree that this liquidated damage provision does not: (a) waive or release BARNHART from liability for said claims, if any, and/or (b) relieve BARNHART of its obligation to indemnify, defend and hold harmless the CITY from said claims. 9. INSURANCE AND INDEMNITY 9.1 Without limiting BARNHART's indemnification of CITY, and prior to commencement of work, BARNHART shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to CITY. 9.1.1 Certificates of Insurance. BARNHART shall provide Certificates of Insurance with original endorsements to CITY as evidence of the insurance coverage required herein. Insurance certificates must be approved by the CITY's Risk Manager prior to commencement of performance of this Agreement. Current Certification of Insurance shall be kept on file with the CITY at all times during the term of this Agreement. 9.1.2 Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. 9.1.3 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the CITY's Risk Manager. 9.1.4 Coverage Requirements. 9.1.4.1 Workers' Compensation Coverage. BARNHART shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for its employees in accordance with the laws of the 17 State of California. In addition, BARNHART shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by the CITY at least thirty (30) days prior to such change (10 day written notice for nonpayment of premium). The insurer shall agree to waive all rights of subrogation against CITY, its officers, agents, employees and volunteers for losses arising from work performed by BARNHART for CITY. 9.1.4.2 Commercial General Liability Coverage. BARNHART shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 9.1.4.3 Automobile Liability Coverage. BARNHART shall maintain automobile insurance covering bodily injury and property damage for all activities of BARNHART arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 9.1.4.4 Professional Errors and Omissions Insurance. BARNHART shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). 9.1.5 Endorsements. Each commercial general liability and automobile liability insurance policy shall be endorsed with the following specific language: 9.1.5.1 The CITY, it's elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, Architects and Engineers, are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of BARNHART. 9.1.5.2 This policy shall be considered primary insurance as respects to CITY, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or M. • • liability arising directly or indirectly from BARNHART's operations or services provided to CITY. Any insurance maintained by CITY, including any self- insured retention CITY may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 9.1.5.3 This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 9.1.5.4 The insurer waives all rights of subrogation against CITY, its elected or appointed officers, officials, employees, agents and volunteers. 9.1.5.5 Any failure to comply with reporting provisions of the policies shall not affect coverage provided to CITY, its elected or appointed officers, officials, employees, agents or volunteers. 9.1.5.6 The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by CITY (10 day written notice for nonpayment of premium). 9.1.6 Timely Notice of Claims. BARNHART shall give CITY immediate and timely notice of claims made or suit instituted arising out of or resulting from BARNHART's performance under this Agreement. 9.1.7 Additional Insurance. BARNHART shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Project work. 9.1.8 Builder's Risk Completed Value Insurance. During the progress of construction of the Project, the CITY shall obtain and maintain one or more policies of Builder's Risk Completed Value Insurance covering all insurable work of the Project, including extended coverage and insurance against vandalism and malicious mischief, perils of fire, sprinkler leakage, acts of civil authorities, collapse and flood, to the full insurable value of the work of the Project and coverage for work of the Project whether in progress or completed. The CITY and BARNHART waive all rights against the other, the Architect, and the Trade Contractors for damages caused by perils covered by insurance obtained under this provision. The policy(ies) of Builder's Risk Completed Value Insurance shall contain express waivers of subrogation ILO 0 9 by the insurer(s) issuing such policy(ies) to the extent of damages or losses covered thereunder. 9.2 Indemnitv. 9.2.1 BARNHART Indemnity of CITY. To the fullest extent permitted by law, BARNHART shall indemnify, defend and hold harmless CITY, its City Council, boards and commissions, officers, agents, representatives and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property [other than to the work of the Project itself and property damage covered by the Builder's Risk Completed Value Insurance obtained by the CITY, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement by BARNHART including, but not limited to, claims that BARNHART caused any Trade Contractor delay and /or damage; and/or BARNHART's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and /or omissions of BARNHART, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require BARNHART to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties or caused by the actions or inactions of the separate consultants of the Indemnified Parties, including, but not limited to the Architect and Engineers. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by BARNHART. 9.2.2 BARNHART as Additional Insured. CITY shall require its Trade Contractors, for the construction of the Project, to indemnify BARNHART and to add BARNHART as an additional insured on such Trade Contractor's general liability insurance policy required under its Trade Contract. 20 0 0 10. TERMINATION; SUSPENSION 10.1 Termination for Default. Either the CITY or BARNHART may terminate this Agreement upon seven (7) days advance written notice to the other if there is a default by the other Party in its performance of a material obligation hereunder and such default in performance is not caused by the Party initiating the termination. Such termination shall be deemed effective the seventh (7th) day following the date of the written termination notice, unless during such seven (7) day period, the Party receiving the written termination notice shall commence to cure it default(s) and diligently thereafter prosecute such cure to completion. In addition to the CITY's right to terminate this Agreement pursuant to the foregoing, the CITY may terminate this Agreement upon written notice to BARNHART if: (a) BARNHART becomes bankrupt or insolvent, which shall include without limitation, a general assignment for the benefit of creditors or the filing by BARNHART or a third party of a petition to reorganize debts or for protection under any bankruptcy or similar law or if a trustee or receiver is appointed for BARNHART or any of BARNHART's property on account of BARNHART's insolvency; or (b) if BARNHART disregards applicable laws, ordinances, rules or regulations. If the CITY exercises the right of termination hereunder, the amount due to BARNHART, if any, shall be based upon Basic Services, authorized Additional Services and authorized allowable Reimbursable Expenses incurred or provided prior the effective date of the CITY's termination of this Agreement, reduced by losses, damages, or other costs sustained by the CITY arising out of the termination of this Agreement or the cause(s) for termination of this Agreement. Payment of the amount due, if any, shall be made by the CITY only after completion of the Construction Phase of the Project. BARNHART shall remain responsible and liable to the CITY for all losses, damages or other costs sustained by the CITY arising out of termination pursuant to the foregoing or otherwise arising out of BARNHART's default hereunder, to the extent that such losses, damages or other costs exceed any amount due to BARNHART hereunder for Basic Services, authorized allowable Reimbursable Expenses or authorized Additional Services. 10.2 CITY's Right to Suspend. The CITY may, in its discretion, suspend all or any part of the construction of the Project work under a Trade Contract or BARNHART's services hereunder; provided, however, that if the CITY shall suspend construction of the Project work under a Trade Contract or BARNHART's services hereunder for a period of sixty (60) consecutive days or more and such suspension is not caused by BARNHART or the acts or omissions of BARNHART, upon recession of such suspension, the Contract Price will be subject to be adjusted to provide for actual costs and expenses incurred by BARNHART as a direct result of the suspension and resumption of Project construction or construction under a Trade Contract or BARNHART's services hereunder. 21 0 0 10.3 CITY's Termination of Agreement for Convenience. The CITY may, at any time, upon seven (7) days advance written notice to BARNHART terminate this Agreement for the CITY's convenience and without fault, neglect or default on the part of BARNHART. In such event, the Agreement shall be deemed terminated seven (7) days after the date of the CITY's written notice to BARNHART or such other time as the CITY and BARNHART may mutually agree upon. In such event, the CITY shall make payment of the Contract Price to BARNHART for services provided through the date of termination plus actual costs incurred by BARNHART directly attributable to such termination plus reasonable demobilization costs. 10.4 BARNHART Suspension of Services. If the CITY shall fail to make payment of the Contract Price when due to BARNHART hereunder, BARNHART may, upon seven (7) days advance written notice to the CITY, suspend further performance of services hereunder until payment in full is received. In such event, BARNHART shall have no liability for any delays or additional costs of Project construction due to, or arising out of, such suspension. 11. GENERAL 11.1 Cooperation. BARNHART agrees to work closely and cooperate fully with CITY, its designated representative and any other agencies that may have jurisdiction or interest in the work to be performed. CITY agrees to cooperate with BARNHART on the Project. 11.2 City Direction. BARNHART shall discuss and review all matters relating to policy and Project direction with CITY in advance of all critical decision points to ensure the Project proceeds in a manner consistent with CITY goals and policies. 11.3 Marginal Headings: Captions. The titles of the various Paragraphs of this Agreement and the Articles of these Conditions are for convenience of reference only and are not intended to and in no way shall enlarge or diminish the rights or obligations of BARNHART and the CITY hereunder. 11.4 Cumulative Rights: No Waiver. Duties and obligations imposed by this Agreement and rights and obligations hereunder are in addition to and not in lieu of any imposed by or available at law or in equity. No action or failure to act by the CITY hereunder shall be deemed a waiver of any right or remedy afforded hereunder or acquiesce or approval of any breach or default by BARNHART. 11.5 Notices. Notices to BARNHART or the CITY are required or desire to serve on the other shall be valid only if addressed to the other as set forth below or as modified by notice hereunder from time to time. Notices shall be effective only if by personal delivery requiring signature acknowledging receipt or by United 22 0 0 States Mail, Certified, Return Receipt Requested, First Class, postage fully pre- paid. Notices effectuated by personal service shall be deemed effective as of delivery of such notices. Notices effectuated by United States Mail shall be deemed effective the third (3`d) working day after deposit in the United States Mail. Notices hereunder shall be addressed as follows: If to CITY: Attn: Steve Badum, Director Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3311 Fax: 949 -644 -3318 If to BARNHART: Eric Stenman General Counsel Douglas E. Barnhart, Inc. 10760 Thornmint Road San Diego, CA 92127 Phone: 858 - 385 -8200 Fax: 858 - 385 -8201 11.6 Disputes. 11.6.1 Continuation of BARNHART Services. Except in the event of the CITY's failure to make undisputed payment of the Contract Price due to BARNHART, notwithstanding any disputes between the CITY and BARNHART hereunder, BARNHART shall continue to provide and perform services hereunder pending a subsequent resolution of such disputes. 11.6.2 Mandatory Mediation. All claims, disputes and other matters in controversy between BARNHART and the CITY arising out of or pertaining to this Agreement shall be submitted for resolution by non- binding mediation conducted by a mutually agreeable mediator. The commencement and completion of mediation proceedings pursuant to the foregoing is a condition precedent to either the CITY or BARNHART commencing legal proceedings. 11.6.3 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 23 0 9 11.6.4 Execution in Counterpart s. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 11.7 Severabilitv. If any provision of this Agreement is deemed illegal, invalid unenforceable or void by any court of competent jurisdiction, such provision shall be deemed stricken and deleted herefrom, but all remaining provisions will remain and continue in full force and effect. 11.8 BARNHART Accounting Records. BARNHART shall maintain complete and accurate records of its personnel engaged in performing any service hereunder, personnel expenses, authorized allowable Reimbursable Expenses and other direct costs incurred in connection with performance under this Agreement. Records shall be maintained on the basis of generally accepted accounting principles applied consistently and shall be available for inspection or reproduction by the CITY upon reasonable request at any time during BARNHART's performance hereunder. Following completion of the Project and the Agreement or the termination of this Agreement, BARNHART shall maintain accounting records for three (3) years or such longer period required by applicable law, ordinance, rule or regulation, during which time such records shall be available to the CITY or as otherwise required by law, ordinance, rule or regulation for inspection or reproduction. 11.9 Equal Opportunity Employer. BARNHART represents that it is an equal opportunity employer and it shall not discriminate against the CITY, its employees, agents, or representatives, any subcontractor, Trade Contractors, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 11.10 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 11.11 Compliance with Laws. BARNHART shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 11.12 Conflicts of Interest: BARNHART or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, BARNHART shall conform to all requirements of the Act. Failure to do so 0 • • constitutes a material breach and is grounds for immediate termination of this Agreement by the CITY. BARNHART shall indemnify and hold harmless the CITY, its employees, agents or representatives for any and all claims for damages resulting from BARNHART's violation of this Section. 11.13 Subcontracting. The Parties recognize that a substantial inducement to the CITY for entering into this Agreement is the professional reputation, experience and competence of BARNHART. Assignments of any or all rights, duties or obligations of BARNHART under this Agreement will be permitted only with the express written consent of the CITY. BARNHART shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the CITY. 11.14 Prohibition against Assignments and Transfers. Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of the CITY, which approval shall not be unreasonable withheld. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of BARNHART, or of the interest of any general partner or joint venturer or syndicate member or cotenant if BARNHART is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of BARNHART. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 11.15 Independent Contractor. It is understood that the CITY retains BARNHART on an independent contractor basis and BARNHART is not an agent or employee of the CITY. The manner and means of conducting the work are under the control of BARNHART, except to the extent they are limited by statute, ordinance, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for BARNHART or any of BARNHART's employees or agents, to be the agents or employees of the CITY. BARNHART shall have the responsibility for and control over the means of performing the work, provided that BARNHART is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give the CITY the right to direct BARNHART as to the details of the performance or to exercise a measure of control over BARNHART shall mean only that BARNHART shall follow the desires of the CITY with respect to the results of the services. 11.16 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 25 • 11 11.17 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the CITY and BARNHART concerning the subject matter hereof, replacing and superseding all prior agreements or negotiations, whether written or verbal. No term or condition of this Agreement shall be modified or amended except by writing executed by the CITY and BARNHART. This Agreement and the following enumerated documents constitute the entirety of the Agreement: the RFP, the RFP Response, Exhibit A, Rate Schedule and Exhibit "B" General Conditions Items /Services. [SIGNATURES ON FOLLOWING PAGE] 26 IN WITNESS HEREOF, the Parties have executed this Agreement as of the date set forth above. APPROVED AS TO FORM: By: X C . c.✓ti- Aaron C. Harp Assistant City Attorney ATTEST: 4 1 -Y Y�nfY� i By: i Ln n 6_0 arkleJs, City Clerk SEW Pp�T u Cq<f FOtaPP Exhibit A - Project Description - Site Map Exhibit B - Construction Cost Statement Exhibit C — Site General Conditions f:\users\pbw\shared\agreements\barnhart-back bay-cmar.doc 27 CITY OF NEWPORT ACH, A Muni nalC ror ti By: Don b, M a y o r for the City of Newport Beach DOUGLAS E. BARNHART, INC. A California Corporation (Corporate Officer) Title: Cc 4 -"vs 1 Print Name: a gyell � z U ( Wi Oc�zUO e Ca r e all cw zzzOQ=w�V> 0¢� 3e EfQNA_ K c—a J¢c Q�z ¢3p c—¢ ¢3pm z �3F o- c= a wcU wOc a E as F to a yy g a B P $A i aEg 9 g C9 ccF- c5(9Q czz z �-'.,z o Ow= F-' Q=a H Q-WZ N L. gZEO ¢ 2m(D czZ� z Ow= a xp CL W Z W UF- 2c(,U¢ as cww N> hw-Z p�z o W ° N �a So Wx °5 F j ; � a egg N F X X w Z wU— w Z w � I < C9 LL' M WU—Xw WF- CO V5 Llj t- a) z a ¢ N LL os efi t i gg g Yao $fit 0 § $ L / t 0 t C/ / S m W OO v~i Z I V oV ZY � w Em U—r mL = \w }I jjj mgt YQtO u /� �a I e9� f f LU f �J P ag O w c 1 c w l \ o ja 5 a w c \ z cnm - - z� aU o a _ -' U r i ��• +avoN �. /� :*� U �• / \' c N35itiW1l3HS OGS \•�1 1m W . \ l S F ::•.:� LU LU 0 C c v, O�z ...\- .. w ...�... ...—.- — —=°a fn , - c z0 OQ 5 � ~ IL EXHIBIT A EXHIBIT B Construction Cost Statement 0 BID PKG N 1 NAME Site Work, Grading & Paving AMOUNT $ 682,000.00 2 Irrigation $ 65.000.00 3 Concrete & Masonry $ 998,000.00 4 Structural Steel $ 86,940.00 5 Rough Framing $ 702,000.00 7 Sheet Metal, Skylights 8 Roofing $ 151,000.00 8 Drywall, Paint & Acoustics $ 519,357.00 11 Plumbing & Site Utilities $ 517,936.00 12 Fire Sprinklers S 78,220.00 13 HVAC $ 175,000.00 14 Electrical $ 422,500.00 15 �' Steel Laborato Casework SUBTOTALTRAOEPACKA 7108000 CM PERCENTAGE PAYMENT AND GENERAL CONDITION PAYMENT EXHIBIT B City of Newport Beach BACK BAY SCIENCE CENTER General Conditions s Co --I sw E UNIT PRICES EXTENSIONS QTY UNIT LABOR MAIL EQUIP LABOR MAT -L EQUIP TOTAL GENERAL CONDITIONS Supervision 48 WKS 2,613.00 - - 125,424 - - 125,424 Project Management 48 WKS 2,713.50 - - 130,248 - - 130,248 Clerk 48 WKS 877.70 - - 42,130 - - 42,130 Scheduler 48 WKS 375.20 - - 18,010 - - 18,010 Safety Manager 11 MTH 107.20 - - 1,179 - - 1,179 Field Office Rental 11 MTH - 419.00 - - 4,609 4,609 Field Office Supplies 48 WKS 75.00 - - 3,600 - 3,600 Field Telephone 11 MTH - 425.00 - - 4,675 4,675 Field Toilets 11 MTH - 450.00 - - 4,950 4,950 Project Gas & Diesel 11 MTH 450.00 - - 4,950 4,950 Dumpster Rental 11 MTH - 128.00 - - 1,408 1,408 Construction Fence (ALLOWANCE) 2000 LF - - 3.70 - 7,400 7,400 Weekly Clean 48 WKS - - 75.00 - 3,600 3,600 Final Clean 9700 SF - - 0.35 - 3,395 3,395 CM Equipment 11 MTH - - 1,812.00 - 19,932 19,932 Temp Elect. Connection 100 LS - 30.00 - 3,000 3,000 Temp Elect Usage 11 MTH - - 275.00 - - 3,025 3,025 4Sig nage 1 LS 991.00 - - 991 991 T TA' 316,990 9,541 1 55,994 382,525 s Co --I sw E ACORDn DATE MT DO YY 01/06/06 UCIR THIS CERTIFICATE IS ISS AS A MATTER OF INFORMATION ONLY Risk Services, Inc of So CA Insurance Service 1901 Main Street AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS 190 suite 300 CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE Irvine CA 92614 USA COVERAGE AFFORDED BY THE POLICIES BELOW. PHONE 949 608 -6300 FAx- 949 608 -6451 INSURERS AFFORDING COVERAGE INSURED INSUReRA, Virginia Surety Company, Inc. Douglas E. Barnhart, Inc. 10760 Thornmint Road INSURER ar INSURER San Diego CA 92127 USA c • INSURE0. D' O INSURER E. COVFRAGFS THE Pul. u. -IES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REUUIRFNIEN'I, TERM OR( OND11ION OF ANY CONTRACT OR OTHER I%)CUMENT WITH RIESPBCT TO WHICH THIS CERTIFICATF. MAY HIS ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREM IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES A(RiRE(iA 11: LIMIIS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INCK ITR TYTE OF M. UKANCE POLICY NUMata POLICY EMCM1 DAt[ /MWDD)YY) POLICY EXPIRATION DATRCMRnDD)Yl) I.IMtTS N A GENERAL LIARILM % CUMFRCIAL GENERA LIABILITY M L. 2CG50134601 General Liability 04/04/05 04/04/06 EACH occ:uaREFICE S1,000,000 cc Ic FIREDAMAGINAW uec firt 5300,000 CLAIMS MADE ❑X OCCUR C MF3)FJ(P IAKy o,m pamml 55,000 PERSONAL & ADV INJURY S1,000,000 v GENERAL AGGREGATE 52.000.000 OENL AWRE. LIMIT APPLIES PER PRO. PINKY E jam [K] LOC ' PRODUCTS - COMPIOP AGO $2,000.000 n A AOTna06li2 LIARR,ITY X ANY ALTO 2650134701 Automobile 04/04/05 04/04/06 COMBD+EDSMGLEUMD' (1 .ccMmll 511000.000 c I s BODILY INJURY ALL OWNED AUTOS SCHEDULED AUTOS BODILY INMY X HIRED AUTOS x SON OW'NED AMOS (Pa �ccideRll PROPERTY DAMAGE (Pm PCCMmp ' GARAGE LIARILOY AUTO ONLY - EA A071 a ANY AUTO OTHER THAN EA ACC AUTO ONLY . AGO EXCESS LIABILIT' EACH OCCURRENCE OCCUR ❑ CLAIMS MADE AGGREGATE DEMCnKI.E RETENTION A nnxKEas LOMPRNS,Lnon ANU 2cwSO134501 workers compensation 04/04/05 04/04/06 % rORY srATV- 10eR El EACH ACCIDENT 51,000.000 EL DISEASE POLICY LMIT $1,000,000 EL DISEASE -EA EMPLOYEE $1,000,000 OTIFN DESCRRTMN OE O PERATMN SM1.(x'ATCK:SNEMCLF- /EXCLUSK)M ADDED BY ENDORSEMENTISPEOAL PROVISIONS 1! The city of Newport Beach and its elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, including but not limited to Architects and engineers are additional insured. The City of Newport Beach Public works Department SH(lI! IDN: YOFTHEAHOVBD® QB® POII ®BwCANCmIADBUI)RFTHF'ExPIMTON DATE THERFUF .TBE ISSUING COWANVWnL— MWVGNTO MAR Attn: Lloyd Dalton P.L. 3300 Newport Blvd Newport Beach CA 92663 USA WDAYS WRITEN NOTICETOTHECFIITTCATEHOLDER NAME) 1`0 THE LEFT, F ate. AImMRI ED REIPRESENTAT VE -5 -s 7197 C$ P R M Attachment to ACORD Certifie foroougl as E. Barnhart, Inc. The terms, conditions and provisions noted below are hereby attached to the captioned oertifictas additional description of the coverage afforded by the insurer(s). This attachment does not contain all terms, conditions, coverages or exclusions contained in the policy. INSURED Douglas E. Barnhart, Inc. 10760 Thornmint Road San Diego CA 92127 USA ADDITIONAL POLICIES If a policy below does not include limit information, refer to the corresponding policy on the ACORD certificate forth for policy limits. INSR LTR TYPEOFINSURANCE POLICY NUMaE0. POLICY DESCRIPTION POLICY EFFECTIVE DATE POLICY EXPIRATION DATE LIMITS DESCIMMON OF OPERATIONS/LOCATIONSIVEHICIES CLUSIONS ADDED BY ENDORSEMENT(SPECIAL PROVISIONS Re: Project No. 6002 - Newport Beach Backbay science Center. GL & Auto endorsement and GL, Auto, we waiver attached Certificate No : 570016300155 0 POLICY NUMBER 2CG50134601 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: The City of Newport Beach and its elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, including but not limited to Architects and engineers Re: Project No. 6002 - Newport Beach Backbay Science Center. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of ongoing operations performed for that insured by or for you. No Coverage applies to liability resulting from the negligence and /or willful misconduct of the Additional Insured. AI- Primary CG2010(11 -85) Company Virginia Surety Company, Inc. Policy Period :414105 TO 414106 Endorsement No. ATTACHED TO AND ENDORSEMENT EFFECTIVE FORMING PART OF (Standard Time) POLICY NUMBER 2CG50134601 Month /Day/Year 12:01 A.M. NOON 414105-414106 (x) INSURED douglas e. barnhart PRODUCER AND CODE CPG /SPEC. RISK RESOURCES INS AGCY, INC. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: COMMERCIAL GENERAL LIABILITY COVERAGE FORM ADDITIONAL INSURED PRIMARY WORDING The following changes are made to Section IV — Commercial General Liability Conditions: The following is added to Condition 4. Other Insurance As subparagraph d. Additional Insured: d. Additional Insured Where you have entered into a written contract or agreement to name a person or organization as an insured under this coverage part and that written contract or agreement required this insurance to be primary and noncontributory, we will not seek contribution from any other insurance unless the "Amendment of Other Insurance Condition" CG 00 55 03 97 endorsement applies. The City of Newport Beach and its elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, including but not limited to Architects and engineers. Re: Project No. 6002 - Newport Beach Backbay Science Center. r� 23Pn,ccvr� Authorized Representative GL CPG 32 (3 /02) 1/6/2006 DATE 0 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY CG 24 04 10 93 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Endorsement Effective: 4/4/05 - 414/06 Policy No.: 2CG50134601 12:01 A.M. standard time Named Insured: douglas e. bamhart, inc. Countersigned by: c �� (Authorized Representative) SCHEDULE Name of Person or Organization: The City of Newport Beach and its elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, including but not limited to Architects and engineers Re: Project No. 6002 - Newport Beach Backbay Science Center. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV— COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above 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 in the "products- completed operations hazard." This waiver applies only to the person or organization shown in the Schedule above. CL 675 (10 -93) CG 24 02 10 93 Copyright, Insurance Services Office, Inc., 1992 Page 1 of 1 `r Company Virginia Surety Company, Inc. Policy Period 414106 TO 414106 ATTACHED TO AND FORMING PART OF POLICY NUMBER 2CA60134701 _0 Endorsement No. ENDORSEMENT EFFECTIVE (Standard Time) Month /Day/Year 12:01 A.M. NOON 04/04104 - 04104105 (x) INSURED douglas e. barnhart PRODUCER AND CODE CPG /SPEC. RISK RESOURCES INS AGCY, INC. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: BUSINESS AUTO COVERAGE FORM ADDITIONAL INSURED WHERE REQUIRED UNDER CONTRACT OR AGREEMENT The following is added to Section II — Liability Coverage, A. — Coverage, 1. Who is An Insured: d. Any person or organization to whom you become obligated to include as an additional insured under this policy, as a result of any contract or agreement you enter into which requires you to furnish insurance to that person or organization of the type provided by this policy, but only with respect to liability arising out of your operations or premises owned by or rented to you. However, the insurance provided will not exceed the lesser of: 1. The coverage or limits of this policy, or 2. The coverage or limits required by said contract or agreement. The City of Newport Beach and its elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, including but not limited to Architects and engineers Re: Project No. 6002 - Newport Beach Backbay Science Center. AUTHORIZED REPRESENTATIVE CA CPG 4 (3/02) 1/6/2006 DATE * _ • Company Virginia Surety Company, Inc. Policy Period 414105 to 414106 Endorsement No. ATTACHED TO AND ENDORSEMENT EFFECTIVE INSURED FORMING PART OF (Standard Time) douglas e. barnhart POLICY NUMBER 2CA50134701 MonthlDayNear 1 12:01 A.M. NOON I PRODUCER AND CODE 414105 to 414106 (x) CPG /SPEC. RISK RESOURCES INS AGCY, INC. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: BUSINESS AUTO COVERAGE FORM WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US The following is added to Section IV — Business auto Conditions, A. — Loss Conditions, 5. — Transfer of Rights of Recovery Against Others to Us: However, we will waive any right of recovery we have against any person or organization with whom you have entered into a contract or agreement because of payments we make under this Coverage Form arising out of an "accident' or "loss" if:: (1) The "accident" or "loss" is due to operations undertaken in accordance with a written contract existing between you and such person or organization; and (2) The contract or agreement was entered into prior to any "accident" or "loss" No waiver of the right of recovery will directly or indirectly apply to your employees or employees of the person or organization, and we reserve our rights of lien to be reimbursed for any recovery funds obtained by any injured employee. Name of Person or Organization: The City of Newport Beach and its elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, including but not limited to Architects and engineers Re: Project No. 6002 - Newport Beach Backbay Science Center. C*1,6 Btk (ate AUTHORIZED REPRESENTATIVE CA CPG 6 (3102) 1/6/2006 DATE j 'L � • Company Virginia Surety Company, Inc. Policy Period 4/4105 TO 4/4106 Endorsement No. ATTACHED TO AND ENDORSEMENT EFFECTIVE INSURED FORMING PART OF (Standard Time) douglas e. barnhart POLICY NUMBER 2CW50134601 I Month /Day/Year I 12:01 A.M. I NOON I PRODUCER AND CODE 4/4105 - 414106 I` (x) CPG /SPEC. RISK RESOURCES INS AGCY, INC. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us. This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule Name of Person or Organization: The City of Newport Beach and its officers, agents, employees & volunteers Re: Project No. 6002 - Newport Beach Backbay Science Center. 1/6/06 AUTHORIZED REPRESENTATIVE WC CPG 7 (3102) DATE