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HomeMy WebLinkAbout04690 - DUDEK ASSOCIATES SKATE PARK CP02-23 Dudek & Associates Skate Park CP02-23 AGREEMENT #4690 CITY OF PALM SPRINGS CM signed 5-2-03 Public Works and Engineering Department -- - - - — - — -- CONTRACT SERVICES AGREEMENT FOR PALM SPRINGS SKATE PARK CONSTRUCTION CIVIL ENGINEERING DESIGN SERVICES CITY PROJECT NO. 02-23 THIS CONTRACT SERVICES AGREEMENT (herein "Agreement") is made and entered into this "`j" day of APei � , 2003, by and between the CITY OF PALM SPRINGS, a municipal corporation (herein " ity") and Dudek & Associates, Inc., (herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity). NOW, THEREFORE, the parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all of the terms and conditions of this Agreement, the Contractor shall perform the work or services set forth in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by reference. Contractor warrants that all work and services set forth in the Scope of Services will be performed in a competent, professional and satisfactory manner. 1.2 Compliance With Law_. All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency of competent jurisdiction. 1.3 Licenses, Permits. Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, Contractor shall be compensated in accordance with the Schedule of Compensation attached hereto as Exhibit B and incorporated herein by this reference, but not exceeding the maximum contract amount of Eight Thousand Eight Hundred Forty Dollars t$8.840.00) ("Contract Sum"). 2.2 Method of Payment. Provided that Contractor is not in default under the terms of this Agreement, Contractor shall be paid in accordance with Exhibit "B", Schedule of Compensation. 3.0 COORDINATION OF WORK 3.1 Representative of Contractor. Brian King is hereby designated as being the principal and representative of Contractor authorized to act in its behalf with respect to the work and services specified herein and make all decisions in connection therewith. 3.2 Contract Officer. Marcus Fuller is hereby designated as being the representative the City authorized to act in its behalf with respect to the work and services FS4276\099999-3000\20226932 m08/22/95 Revised 09/01/98 i1 t'»;Y,➢l E'IJ'Af, IC'tL specified herein and make all decisions in connection therewith ("Contract Officer"). The City Manager of City shall have the right to designate another Contract Officer by providing written notice to Contractor. 3.3 Prohibition Against Subcontracting or Assignment. Contractor shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Any such prohibited assignment or transfer shall be void. 3.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth. Contractor shall perform all services required herein as an independent contractor of City and shall remain under only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 4.0 INSURANCE, INDEMNIFICATION AND BONDS 4.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broadform property damage, products and completed operations. The General Liability Policy shall name the City of Palm Springs, its officers, employees, and agents, as additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185) or equivalent language. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which will include $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of $1,000,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Policies of such other insurance, including professional liability insurance in a minimal amount of $1,000,000 if contract has professional liability exposure, as may be required in Exhibit "A", Scope of Services. All of the above policies of insurance shall be primary insurance. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4.1 to the Contract Officer. No work or F52\276\099999-3000\2022693.2 m08/22/95 Revised 09/01/98 services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. The contractor agrees that the provisions of this Section 4.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or person for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 3.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 4.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.0 TERM 5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this Agreement shall continue in full force until June 30, 2004. F52\276\099999-3000\2022693.2 .09122/95 Revised 09/01/98 5.2 Termination Prior to Expiration of Term. Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other party. Upon receipt of the notice of termination, the Contractor shall immediately cease all work or services hereunder except as may be specifically approved by the Contract Officer. In the event of termination by the City, Contractor shall be entitled to compensation for all services rendered prior to the effectiveness of the notice of termination and for such additional services specifically authorized by the Contract Officer and City shall be entitled to reimbursement for any compensation paid in excess of the services rendered. 6.0 MISCELLANEOUS 6.1 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry. 6.2 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 6.3 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 6.4 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. 6.5 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. 6.6 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. FS2\276\09999M000\2022693.2 .06/22/95 Revised 09/01/98 6.7 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 6.8 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 6.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter proceeds to judgment. 6.10 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. FS2\276\099999-3000\2022693.2 .08/22195 Rovised 09/01/98 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS, a municipal corporation By: City Manager �! ATTEST: )) By: 7Zoify Clerk FS2\276\099999-3000\2022693.2 m08/22195 Revised 09/01/98 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT l( bH In State of California to It; ss. tSi County of /�('� i p On9Y 1 �'I �i(�L7 before me, y�<e��s �7vt to 1 r, n C; Cola h, f�Nnme antl Wile of Ofllc¢r g."den Coe.Nolary Puhho^) It> l� personally appeared _`t" 1 rf�{'1 �-c-�• DkCte1�- 9�_f��i//✓�� C l'�C,f'"S. (�l Noma)s)of Signer(s) [(> ,personally known to me I<<� ❑ proved to me on the basis of satisfactory <f> y evidence dl J.SKEENS to be the persons) whose name(s) •is9`are �n Commlulon#1409699 subscribed to the within instrument and h .� Nokwy Rift-California _ acknowledged to me that-he, executed %) ,) San DiegoCamN the same in .his7�erfthelr authorized �) r6; My Comm.Expires Apr 7,2007 capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the persorr acted, executed the Instrument jI WITNESS my hand and official seal. -" <riI l l' Slgnalure of Nolary PobLo r') t(' OPTIONAL Though ilia information below is not required by law,It may prove valuable to persons relying on the document and could prevent )7 i fraudulent removal and reattachment of this form to another document s Description of Attached Document °S (712$Y�iC I �6�1 Ge S ATlrrem e��it Title or Type of Document: i C f <<� Document Date:� �Li/ � Number of Pages: 'j in Signer(s) Other Than Named Above: )> I( bn Capacity(ies) Claimed by Signer )I c fai m upl n 7� Signer's Name: zl ❑ Individual reP of humb here )I z ❑ Corporate Officer—Tltle(s): 7�I ❑ Partner—❑ Limited ❑ General J) ❑ Attorney-in-Fact ly3 ISj ❑ Trustee )(Ip ❑ Guardian or Conservator gn ufhl ❑ Other: ot IC1 )I I`[ Signer Is Representing: jl 01999 National NOla,y Association•93501 SoloAe,PO Box 24o2•GM1alsworlM1,CA 91313Q402•www naLonalnolaryor9 Prod No 5907 Reorder Call Toll-Free 1-800-876-6827 CONTRACTOR, Dudek & Associates, Inc. (Check one: _In 'vidual_Partnership X Corporation) By: gn ure (Nab ri d) DudehlWAss6cimites, Inc, Frank J. Dudek 'resident By: -- - 1' 2ture tarized) I'r A9enC Print Name&Title Mailing Address: 10 East Vine Street, Suite 214 Redlands, CA 92373 (END OF SIGNATURES) (Corporations require two signatures: One from each of the Following: A. Chairman of Board, President, any Vice President:AND B. Secretary,Assistant Secretary, Treasurer,Assistant Treasurer, or Chief Financial Officer). M\276\099999-30W2022693.2 m08/22/95 Revised 09/01/98 EXHIBIT "A" SCOPE OF SERVICES Contractor shall provide civil engineering design services to prepare the necessary plans required to revise the location of the Palm Springs Skate Park. The following scope of services shall be provided: Task 1 - Review Site Constraints: Contractor shall review the project site, along with existing topography, and determine additional project constraints, limitations, and other miscellaneous items that may or may not be currently reflected in the approved skate park Precise Grading Plan. Contractor shall identify utility impacts and coordinate with affected utility companies. Task 2 - Revise Site Layout: Contractor shall coordinate with City staff on revising the exterior of the skate park to minimize the impact to off-site (Palm Springs High School) property, and to limit the extent to which the relocation or "offset" of the skate park project is required in order to clear the existing swim center bathroom/locker room building. Contractor shall coordinate with City staff on revising the skate park entry plaza. No revisions to the interior layout and configuration of the skate park itself are anticipated. Task 3 - Demolition/Relocation Plan: Contractor shall prepare a plan showing demolition, clearing, grubbing, utility relocations and other removals as necessary for the revised location of the skate park project. Task does not include design of any utility relocations other than that specifically listed in Task 5. Task 4 - Precise Grading Plan: Contractor shall prepare a revised Precise Grading Plan that shows all new construction, including revised grades and elevations as required. Task 5 - Sewer Relocation Plan: Contractor shall prepare a sewer relocation plan as required to clear revised location of skate park project. Task 6 - Meetings: Contractor shall meet with City staff at City Hall or the Project Site; task includes a total of 3 meetings. Exclusions: Offsite utilities (if needed) are to be designed by others or will be by separate contract; no boundary calculations or design is included; and no construction staking is included. Special Requirements: A. The Contractor shall procure and maintain professional liability insurance in a minimal amount of $1,000,000 in conformance with the provisions of Section 4.0 of this Agreement. B. Task 1 shall be completed within 5 working days following Notice to Proceed issued by the City; Task 2, shall be completed within 10 working days following Notice to Proceed; Tasks 3, 4, and 5 shall be completed within 20 working days following Notice to Proceed issued by the City; and Task 6 shall be provided as required. F52\276\099999-3000\2022693.2 m08/22/95 Revised 09/01/98 EXHIBIT "B" SCHEDULE OF COMPENSATION Scope of Work Lump Sum Fee Task 1; Revise Site Constraints $560.00 Task 2; Revise Site Layout $1,800.00 Task 3; Demolition/Relocation Plan $820.00 Task 4; Precise Grading Plan $3,020.00 Task 5; Sewer Relocation Plan $1,380.00 Task6; Meetings $1,260.00 Total Not to Exceed $8,840.00 Progress payments may be made, upon approval of invoices therefore, for amounts up to a total maximum of 75% of the lump sum fee, prior to completion of the required services. Progress payments may be made no more than monthly, upon approval of invoices by the Contract Officer. FS2\276\099999-3000\2022693.2 .08/22/95 Revised 09/01/98 ACORD CERTIFICATE OF LIABILITY INSURANCE DATEA(MIwOD 3) M. 22 PR DucER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION MI HAEL J.HALL&COMPANY AIE INSURANCE SERVICES ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 19578 II TH AVENUE N.E. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR POULSDO WA 98370 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PHONE: (360)590.3700 FAX; (360)590.1703 A Gnc LID#:0792445 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A; _GREENWICH INSURANCE DUDEK&ASSOCIATES,INC. INSURER B; AMERICAN MOTORISTS INSURANCE CO' E053110 STREET ENCINITA5 CA 92024 INSURER C: LUMBERMEN$M UTUAL CASUALTY CO' INSURER D; INSURER B; COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE SEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICYPERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY MO.ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONOMCNS OF SUCH POLICIES.AGOREOATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I4: TYPE OFINSUPlWCE POUCYNUMSEq YecTNE FQO�EE 1roX UNITS GENERAL LIABILITY 7RD82D906.00 AUG 28 02 AUG 20 03 EACH OCCURRENCE s 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMADE TO RENTED s 300.000 [REM9 ELnh CLAIMS MADE 51 OCCUR MED EXP(Any One PyNan) S 10,000 C PERSONAL€AOV INJURY S 1,000,000 GENERAL AGGREGATE E 1,000,000 GEN'L AGGREGATE LIMITAPPLIES PER PRODUCTB.COMPIOPAGG. S 1,000,000 POLICY AUTOMOBILE LIABILITY F3L000939.01 AUG 20 02 AUG 28 03 COMBINED SINGLE LIMB y 1,0130,000 X ANYAUTO (Oa fiNid"Q ALL OWNED AUTOS BODILY INJURY (Per pemcn) S C 60HEDULEDAUTOS X HIRED AUTOS BODILY INJURY X NON-CWNEDAUTOS (P.r„CCIdnnl) S PROPERTYOAMAGE S GARAGE LIABILITY AUTO ONLY-EA ACCIDENT s ANYAUTO OTHER THAN EA ACC s AUTO ONLY. AGO S EXCESS I UMBERELIA LIABILITY SSR 014976-01 AUG 29 02 AUG 2803 EACH OOCURRENCE s 5,000,000 X OCCUR CLAIMS MADE AGGREGATE S S,000.00 C s DEDUCTIBLE s RETENTION S S WORKERS COMPENSATION AND 7CW305330-04 AUG 2002 AUG 29 03 WCBTdT6 pp{R EMPLOYERS'LMBILITY E�L-EACH ACCIDENT s 1,DOO,000 B AHYn{pIRl61'OWPARTtEIMXKYIIVE OTPICEW A IXCLVDSDa E.L.DISEASE-EA EMPLOYEE S 1,000,000 TwI.dnedM.undo E.L.DISEASE-POUCYLIMR' s 1.000000 y�UTAL PnwNIDN9s.IP� I OTHER;PROFESSIONAL.LIABILITY PEC000520301 AUG 28 02 AUG 28 03 $5,000,000 PER CLAIM A POLLUTION LIABILITY $5,000,000 AGGREGATE CLAIMS MADE POLICY DESCRIPTION OF OPERATIONSILOCATIONfVEHICLESIEXCLUSIONS ADDED ENDORSEMENTI SPECIAL PROVISIONS SEE SUPPLEMENTAL CERTIFICATE INFORMATION CERTIFICATE H ADDITIONAL INSURED;INSURER LETTER: CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LQFT,BUT CITY OF PALM SPRINGS FAILURE TO DO SO$HALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY IUNO UPON THE 3200 E.TAHQUITZ CANYON WAY INSURER,IVS AGENTS OR REPRESENTATIVES, PALM SPRINGS,CA 92262 AUTHORIZED REPRESENTATIVE AHentlon: lip l j ACORD 25(200 10E) Certificate# 20232 ASHLEY HURD * 5-7 )L- Z 'd HN 'Old �Itl9p :L £002 u uy POLICY NUMBER: 7RD820906-00 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 fallowing: COMMERCIAL GENERAL LIABILITY SCHEDULE Name of Person or Organization; CITY OF PALM SPRINGS 3200 E. TAHQUITZ CANYON WAY PALM SPRINGS, CA 92262 (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"your work'for that insured by or for you CG 20 10 11 85 Copyright, Insurance Services Office, Inc., 1984 Certfflnfe# 20M d 9M *OK �IV9p 'L £002 6Z �dtl SUPPLEMENT TO CERTIFICATE OF LIABILITY INS #20232 PAR 2203 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS CERTIFICATE HOLDER IS AN ADDITIONAL INSURED ON THE COMMERCIAL GENERAL LIABILITY AS RESPECTS LIABILITY ARISING OUT OF ACTIVITIES BY,OR ON BEHALF OF THE NAMED INSURED. 'THE INSURER'S POLICY PAYMENT OBLIGATIONS ARE BACKED BY ACUT•THROUGH TO NATIONAL INDEMNITY COMPANY,AN A+ RATED 13ERKSHIRE HATHAWAY SUBSIDIARY. PLEASE SEE ATTACHED ENDORSEMENT CONFIRMING THIS ARRANGEMENT. THIS INSURANCE IS PRIMARY INSURANCE AND ANY OTHER INSURANCE MAINTAINED 6Y THE ADDITIONAL INSUREDS SHALL BE EXCESS ONLY AND NON CONTRIBUTING WITH THIS INSURANCE, A WAIVER OF SUBROGATION APPLIES TO THE GENERAL LIABILITY,AUTO LIABILITY,WORKERS COMPENSATION AND UMBRELLA/EXCESS LIABILITY POLICIES IN FAVOR OF THE ADDITIONAL INSURED. Certificate# 2U232 'd 99N 'ON RV9fi L Roz 'U, Wv 012-04050 (OKempelr _ �- InsuranceCc,mpanles V February 13, 2003 DUDEK & ASSOCIATES, INC. � EN f 3RD ST / ENCINITAS CA 92024-3513 Dear DUDEK &ASSOCIATES, INC. You recently received a letter from Kemper with a notice referring to a "cut-through" agreement we have reache with National Indemnity Company, an `A++' rated Berkshire Hathaway subsidiary. Our records indicate that yol. notice may not contain the inception date of the"cut-through:'To remedy this, enclosed is a revised notice for yo to keep with your insurance policy. Please disregard the previous notice_ The notice inception date for the cu` through is December 23,2002, which is properly displayed on the enclosed. Our original letter contained information related to the "cut-through." We ask that you keep the original letter as contains educational information that you may desire. Please accept our sincere apologies for this error. If yoi have any questions, please contact your professional insurance agent or call our toll free number (800-833-0355). Sincerely, o R� 4.1, David B. Duclos SBGCustLetter 2/1 M003 Z 'd HN 'M jgpy :n i S nnl A 'uy 1 \6 Insurraa conles IMPORTANT NOTICE CONCERNING.~ YOUR RIGHTS UNDER A CUT-THROUGH AGREEMENT NATIONAL INDEMNITY COMPANY Insurance Policy(the"Policy")to which this notice applies:7RDS20906-00 R Insurer(the "Company"): LUMBERMENS MUTUAL CASUALTY CO. Policy Inception Date;08/28/2002 i Policy No.:7RDS20906-00 _ /� y�✓. Named Insured(the "Insured'): DUDEK&ASSOCIATES, INC, The Notice Inception Date is 12/23/2002 f For value received, National Indemnity Company(hereinafter referred to as "National Indemnity") agrees that in tF event the Company does not pay amounts otherwise payable under the Policy as a result of a court of competer jurisdiction or the state insurance regulatory authority in the Company's domiciliary state ("insurance regulator authority") issuing an order finding such Company to be insolvent or entering an order to the Company whic legally prohibits the Company from paying Policy amounts otherwise payable because of the Company's finance condition, then National Indemnity will pay on behalf of the Company 100% of any amount payable by th Company under the Policy that has not been previously paid by the Company, subject always to the other term! conditions, exclusions and limitations of the Policy. National Indemnity will make such payment directly to th Insured (or to its mortgagees, assignees or loss payees, as their interests may appear) in the event of first-part coverages, or directly to the claimant or claimants to whom the Insured is legally liable in the event of third-part coverages. As a condition of National Indemnity's payment obligation, the Insured, after receiving actual notice c the receivership or insolvency of the Company, shall provide prompt written notice to National Indemnity, attentior Kemper Cut-Through, at its statutory Home Office as on record with the National Association of insuranc Commissioners, of any claim or suit for which National Indemnity may be liable by reason of this agreement herein As a condition precedent to payment hereunder, National Indemnity shall be deemed to have all the rights of the Company and be subrogated to all the rights of the Insured to the extent of such payment- In the case of third-party liability coverages, payment shall be due hereunder-only after any one of the follow* three conditions is met: (1) the claimant obtains a judgment against the Insured or the Company after actual trial b� a court of competent jurisdiction; or (2) the claimant enters into a settlement with the Insured or the Company approved by National Indemnity; or (3) the claimant enters into a settlement with the Insured or the Compan} approved by the Company prior to it being declared insolvent or prohibited from paying amounts due under the Policy. None of these.conditions shall apply to first-party coverages, including but not limited to any state workers compensation or similar federal compensation coverages that may be provided by the Policy. IL 80 38(Ed. 12 02) Page 1 of 2 Printed in U.S.A. E 'd NN 'Old 1vIi :0f W 'Of M Upon the Company being declared insolvent or being legally prohibited from paying Policy amounts othenvis payable because of the Company's financial condition by a court of competent jurisdiction or insurance regulator authority or upon any insurance regulator assuming any control over the Company's claims handling proces National Indemnity has the right, but not the duty, to assume any obligation the Company may have to provide defense to the Insured, if such an obligation is created by the Policy. If National Indemnity does not assume suc obligation, it will reimburse the Insured for the reasonable cost of such defense to the extent that the Compan would have been obliged to pay such cost under its obligation to defend, National Indemnity and the Insured wi cooperate in the selection of defense counsel at the commencement of litigation. Nothing herein shall mak National Indemnity the insurer under the Policy. National Indemnity's obligation hereunder is limited to th Company's obligations under the Policy and shall not include any payment arising under claims of bad faith, extr contractual obligations or payments in excess of policy limits. In the event the Notice Inception Date is later than the Policy Inception Date, then this Notice does not apply to an, damages, offense or loss of any nature for which coverage is otherwise provided under the Policy if such damages offense or loss "commences" in whole or In part prior to the Notice Inception Date, even if such damages, offense or loss continues, is alleged to continue, or is deemed to continue on or after the Notice Inception Date. For the purposes of.this Notice only, °commences"shall mean: (i) first occurs, is alleged to first occur or is deemed to firs occur; or (ii) incepts, is alleged to incept or is deemed to incept; or (iii) first manifests, is alleged to have firs! manifested, or is deemed to have first manifested. "Commence'is the earliest point in time of (f), (11) or(iii). Nationa Indemnity has no liability to make payments or reimburse any person for payments if the payments were incurred it connection with or were in any way related to such excluded damages, offense or loss. NATIONAL INDEMNITY COMPANY LUMBEFIMENS MUTUAL CASUALTY CO. President Chairman and Chief Executive Officer IL 80 38(Ed. 12 02) Page 2 of 2 Printed in U.S.A. fi 'd ZHZ 'ON WVVI E HE '0c WV Search Results -Page - - Best's Ratings and Analysis Page 1 of 1 April 23.2003 is 6ES-r • r Y amrbesT.com W a-mgs&Analysis w,P.eue�Pubhcemrns u Produc'E,&Services s In�uranc?R:enlrca; Company Search Pa •v Abcur A trl,Bes; Choose: I All Companies ► Rated Companies 1 Secure Rated Companies Ratlltt6 01�" 1 Rated or Unrated companies found, results sorted b Company Name (ascending) sBAECH P Y P Y � 9) Ratings Criteria Used: Company Name: Company names starting with american motorist C ccmpany Information To refine your search, please use our Advanced Search or view our Online Help for more in 1 Select the Company Name or Rating links below for additional information about each comf Enter Con,parry Non a access to reports, news and related products. or.Al,l BeLtNurnber Business r, Al Type n Company Name Rating Domicile Find 02274 P American Motorists Insurance B u United States: Min Iy:era:3aaroh�ip[ias - --- Company CONTACT u6 *Ratings as of 4123120037:08:01 PM E.S.T. p � iere n a Business Types: World I. P = Property/Casualtynon- e 4P4 A.M.BEST? (non-life) ) � Firri_our locations L = Life/Health f What do yamr think View the Current Guide to Best's Ratings for an in-depth explanation of Best's Ratings Sy ,,no us y our Corn meets Procedures. Accessing the pages Important Notice: Best's Ratings reflect our opinion based on a comprehensive on ambest.com qualitative evaluation of a company's balance sheet strength, operating performance and constitutes the user's These ratings are not a warranty of an insurer's current or future ability to meet its contra, agreement to our terms of use, View our entire notice for a complete details. Information collected via this Web site is protected by our Companies interested in placing a Best's Security Icons on their web site to promo privacy,statement strength may register,online. Comments or concerns should be directed to our customer service Customer Service I Product Support I Careers I Contact Info I About A.M. 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Best Company.Refer to our terms of use for additional details. http://www3.ainbest.coiTVratings/RatingsScarch.asp 4/23/2003 Search Results - Page - - Best's Ratings and Analysis Page 1 of 1 April 23,2003 <;�'BEST a mtbest.pom ry � Ro'inc�-3Prnalysls ' New&rablmaarne Pmduuas a Seraices " Insurance F:eeeume- Company Search Pa m Abc&n,I,A Bess Choose:1' All Companies ► Rated Companies ► Secure Rated Companies Rating 2 Rated or Unrated companies found, results sorted b Company Name (ascending) s E acing P Y p Y g) l: Rauncs Criteria Used: Company Name: Company names starting with lumbermen's mutual (` Ccmpamy Irformnden To refine your search, please use our Advanced Search or view our Online..Help for more in B Select the Company Name or Rating links below for additional information about each comf En'er company a access to reports, news and related products. orAld BeecNum,ber r Business AMB# Type Company Name Rating Domicile Find 02279 P Lumbermens Mutual Casualty B u United States: Illin fdlcne Saanrh Ip[i_nz Company - - ---- - -- - 86574 P Lumbermens Mutual Cas__ualty B,u Canada: Ontario CONTACT US Company CAB ':ihere in me *Ratings as of 4/23/2003 7:08:01 PM E.S.T. world I' A.M.I115ST'4 Find,ol.Ir locutions Business Types: P = Property/Casualty (non-life) What do L = Life/Health yw think,0 c'epr us onr commems View the Current Guide to Best's Ratings for an in-depth explanation of Best's Ratings Sy Procedures. Accessing the pages on ambest com constitutes the user's Important Notice: Best's Ratings reflect our opinion based on a comprehensive agreement to our qualitative evaluation of a company's balance sheet strength, operating performance and terms_of.use; These ratings are not a warranty of an insurer's current or future ability to meet its contra Information collected via this Web site is View our entire-notice for a complete details. protected by our privacy,statement; Comments orconcerns Companies interested in placing a Best's Security Icons on their web site to promo should be directed to strength may register online. our cuslomei service group,For other matters refer to our Customer Service j Product Support I Careers I Contact Info I About A.M. Be: contact us page Site Map I Privacy Policy I Security I Terms of Use I Legal &_Licensing Copyright©2003 by A.M.Best Company, Inc, ALL RIGHTS RESERVED No part of this report may be distributed in any electronic form or by any means,or stared in a database or retrieval syst written permission of the A.M.Best,Company.Refer to our terms of use for additional details. 1-ittp://www3.ambest.coin/ratings/RatingsScarch.asp 4/23/2003 Search Results - Page - -Best's Ratings and Analysis Page 1 of 1 April 23,2003 s , to BEST FAR - MWENIP-9 ambest.r:om 4 Raurrgs•S Anal:p_is • - u N;ee;s PuNiewims .a Prcduc'=&v Sor,%.=s lnsuranua Rcauurcez Company .Search Pa t hbco.kl`h Bes; �/ Choose:[' All Companies ► Rated Companies 1 Secure Rated Companies Rating C t,.T 2 Rated or Unrated companies found, results sorted b Company Name (ascending) sEnr.ctt, P Y P Y � 9) (0— Ratings Criteria Used: Company Name: Company names starting with Greenwich l' Ccmpo%Informadcri To refine your search, please use our Advanced Search or view our Online Help,for more in Select the Company Name or Rating links below for additional information about each comt Enhereumpany Name access to reports, news and related products. cr.A.ia.sent Nluraber Business ® AMB# Type Company Name �d Rating Domicile Find', 11095 P Greenwich Insurance Company A+ United States: Cal rocre Search nprb_ns - - 86950 Greenwich international Bermuda Reinsurance Ltd CONTACT US :';here *Ratings as of 412312003 7:08:01 PM E.S.T. in the %'rrodd Is %Vs A.M BEST? Business Types: Find cur I_„_❑.ion`' P = Property/Casualty (non-life) L = Life/Health Whatdo you tfriok,4') View the Current Guide to Best's Ratings for an in-depth explanation of Best's Ratings Sy _enc us;dour corn me ncs Procedures. Accessing the pages Important Notice Best's Ratings reflect our opinion based on a comprehensive on ambest.com P 9 P P constitutes the user's qualitative evaluation of a company's balance sheet strength, operating performance and agreement to our These ratings are not a warranty of an insurer's current or future ability to meet its contra, terms Information collected P pt use, Inform View our entire notice for a complete details. via this Web site is privacted by y statement; Companies interested in placing a Best's Security Icons on their web site to romo privacy statement; P P g Y P Comments or concerns strength may register„online. should be directed to our customer service group;For other Customer Service I Product Support I Careers I Contact Info I About A.M. Be: matters refer to our Site„Map 1 Privacy Policy Security Terms of„Use Legal & Licensing contact us page. Copyright©2003 by A.M,,Best Company,Inc. ALL RIGHTS RESERVED No part of this report may be distributed in any electronic form or by any means,or stored in a database or retrieval syst written permission of the A.M Best Company. Refer to our terms of use for additional details. http://www3.amhest.com/ratings/RatingsSearch.asp 4/23/2003