HomeMy WebLinkAboutWKE ENGINEERS & PLANNERS (2)-2013INSURANCE ON IILk
WORK MAY PROCEED
CLERK
'UNTIL INSURANCE EXPIRES
C QUNCIL
C ra DATE: '1 a " CONSULTANT AGREEMENT
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THIS AGREEMENT, made and entered into this :k L day of Nq)wnber, 2013 by and between
rA LJ WKE Engineers & Planners, a California corporation, (hereinafter "Consultant"), and the City of Santa
Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of
the State of California (hereinafter "City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
engineering, to provide structural feasibility analysis of projects submitted for City plan check.
B. Consultant represents that Consultant is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this Agreement
will be performed in compliance with such standards as may reasonably be expected from a
professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms
and conditions hereinafter set forth, the parties agree as follows:
11 SCOPE OF SERVICES
Consultant shall, at the written request of the Executive Director of Public Works, provide
structural engineering services including, structural feasibility analysis, structural calculations of projects
submitted to the City for plan check review, prepare structural calculations for City owned bridge
structures. Additionally, Consultant may assist in the development of a preventative maintenance plan for
City owned bridges.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the
following rates and charges:
Project Principal
$ 200.00/ Hr.
Proj ect :Manager
$ 175.00/ Hr.
Senior Engineer
$ 170.00/Hr.
Project Engineer
$ 125.00/ Hr.
Associate Engineer
$ 100.00/ Hr.
CAD Tech
$ 90.00/ Hr.
The total sum to be expended under this Agreement shall not exceed $25,000 during the term of
this Agreement.
b. Payment by City shall be made within thirty (30) days following receipt of proper invoice
evidencing work performed, subject to City accounting procedures. Payment need not be made for work
which fails to meet the standards of performance set forth in the Recitals which may reasonably be
expected by City.
3. DELIVERY OF WORK PRODUCT - OWNERSHIP
Consultant warrants and represents that it has the absolute right to enter into and perform this
Agreement and will perform its obligations hereunder in accordance with standards and practices
prevailing in the industry. Consultant's contribution to the Project, including works to be produced by
Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third
person or party. Consultant shall deliver to City any work product which results from the services
provided. Said work product shall be submitted in hard copy and produced in a form compatible with
City's information systems, as agreed between the Project Manager and Consultant.
In regard to all material produced as a deliverable under this Agreement, including but not limited
to records, papers, drawings, specifications, programs, systems and other materials prepared by
Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and
volunteer workers, that (a) other such material shall be the property of the City, and may not be
copyrighted without prior review from the City, and (b) the authors of all such material, whether
copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of
their official duties, as a condition of payment to the Consultant, a royalty -free, nonexclusive, irrevocable
license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use
such materials.
4. TERM
This Agreement shall commence on the date first written above and terminate on September 30,
2014, unless terminated earlier in accordance with Section 13, below. The term of this Agreement may
be extended upon a writing executed by the Executive Director of the Public Works Agency and the City
Attorney.
5. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent
contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to
create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise
discretion or control over the professional manner in which Consultant performs the services which are
the subject matter of this Agreement; however, the services to be provided by Consultant shall be
provided in a manner consistent with all applicable standards and regulations governing such services.
Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and
similar taxes relating to employees and shall be responsible for all applicable withholding taxes.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial general
liability insurance naming the City, its officers, employees, agents, volunteers and representatives as
additional insured(s) and shall include, but not be limited to protection against claims arising from bodily
and personal injury, including death resulting therefrom and damage to property, resulting from any act or
occurrence arising out of Consultant's operations in the performance of this Agreement, including,
without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following:
single limit coverage applying to bodily and personal injury, including death resulting therefrom, and
property damage, in the total amount of $1,000,000 per occurrence. Such insurance shall (a) name the
City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be
primary and not contributory with respect to insurance or self-insurance programs maintained by the City;
and (c) contain standard separation of insureds provisions.
b. Business automobile liability insurance, or equivalent form, with a combined single limit of
not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and
non -owned automobiles.
c. Worker's Compensation Insurance. hi accordance with the provisions of Section 3700 of the
Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for
worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work
under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with
limits not less than $1,000,000 per accident.
d. Professional liability (errors and omissions) insurance, with a combined single limit of not less
than $1,000,000 per claim.
e. The following requirements apply to the insurance to be provided by Consultant pursuant to
this section:
(i) Consultant shall maintain all insurance required above in full force and effect for
the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of this
Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled or
reduced in coverage or changed in any other material aspect without thirty (30)
days prior written notice to the City.
(iv) Certificates and renewals shall be sent to: Mindy Ly, Public Works Agency —
Design Engineering, City of Santa Ana, 20 Civic Center Plaza (M-36), Santa
Ana, CA 92701.
f If Consultant fails or refuses to produce or maintain the insurance required by this section or
fails or refuses to furnish the City with required proof that insurance has been procured and is in force and
paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such
termination shall not effect Consultant's right to be paid for its time and materials expended prior to
notification of termination. Consultant waives the right to receive compensation and agrees to indemnify
the City for any work performed prior to approval of insurance by the City.
7. INDEMNIFICATION
To the fullest extent permitted by law Consultant shall indemnify and hold harmless the City, its
officers, agents, employees, consultants, special counsel, and representatives from and against any and all
claims, demands, damages, losses, suits, judgments, liabilities, costs and expenses, including reasonable
attorney's fees, collectively `Claims', to the extent such Claims are caused by the negligent act, error or
omission of Consultant or Consultant's officers, directors, partners, employees or consultants, in the
performance of services under this Agreement.
8. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such information is
reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or
disclose such information except in the performance of this Agreement, and further agrees to exercise the
same degree of care it uses to protect its own information of like importance, but in no event less than
reasonable care. "Confidential Information" shall include all nonpublic information. Confidential
information includes not only written information, but also information transferred orally, visually,
electronically, or by other means. Confidential information disclosed to either party by any subsidiary
and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and
nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources;
(b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by
operation of law; or (e) is independently developed by the Consultant without reference to information
disclosed by the City.
9. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance of services specified under this
Agreement.
10. NOTICE
With the exception of insurance certificates and renewals covered by Section 5.e.iv, above, any
notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing
and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail,
postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in
this Section, to the following persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax 714- 647-6956
With courtesy copies to:
Public Works Agency — Design Engineering
City of Santa Ana
20 Civic Center Plaza (M-36)
P.O. Box 1988
Santa Ana, California 92702
Fax 714- 647-5635
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Fax 714- 647-6515
To Consultant: WKE Engineers & Planners
400 N. Tustin Avenue, Suite 275
Santa Ana, California 92705
A party may change its address by giving notice in writing to the other party. Thereafter, any
communication shall be addressed and transmitted to the new address. If sent by mail, communication
shall be effective or deemed to have been given three (3) days after it has been deposited in the United
States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by
telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours
after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed
as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City
holidays shall be excluded.
11. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event
of a conflict between the terms of this Agreement and any attachments hereto, the terms of this
Agreement shall prevail. This Agreement may not be modified except by written instrument signed by
the City and by an authorized representative of Consultant. The parties agree that any terms or conditions
of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and
conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement
acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not embodied herein.
12. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written
consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior
written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit
the City's ability to have any of the services which are the subject to this Agreement performed by City
personnel or by other consultants retained by City.
13. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. hi such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of termination, subject
to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to deliver to the
City all work product completed as of such date, and in such case such work product shall be the property of
the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the
City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified in
the Recitals of this Agreement.
14. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual
orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the
recruitment, selection, training, utilization, promotion, termination or other employment related activities.
Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal,
state and local laws and regulations.
15. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined
and governed by the laws of the State of California. Both parties further agree that Orange County,
California, shall be the venue for any action or proceeding that may be brought or arise out of, in
connection with or by reason of this Agreement.
16. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits,
approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by
the laws and regulations of the United States, the State of California, the City of Santa Ana and all other
governmental agencies. Consultant shall notify the City immediately and in writing of its inability to
obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be
cause for termination of this Agreement.
17. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority
and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City
fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such
authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the
body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above
written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
La d Sheedy
Assistant City Attorney
RECOMMENDED
EDWIN "WILLIAM"
Executive Director — I
AL:
VEZ, P.E.
Works Agency
CITY OF SANTA AN
DAVID CAVAZOS
City Manager
CONSULTANT
AME)47
(Title)
�,r-�alr1 WKEINCO-01 GOMEZB
CERTIFICATE OF LIABILITY INSURANCE DATE�(MMIOR'YYYY]
14....--'"` 1112212013
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder In lieu of such endorsement(s).
CONTACT
PRODUCER License #CE6776B NAME: All Smith
IDA Insurance Services -SD PHONE ( (uc Nel, (S19) 574-6288
4350 La Jolla Village Drive, Suite 900 AIc No er _ 619) 574.6220
I INSLARER15T AFFORDING COVERAGE NAIL# I
WKE, Inc.
400 N. Tustin Ave., 0285
Tustin, CA 92705
COVERAGES_ CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO TH E INSURED NAMED ABOVE FOR TH E POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTH ER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALLTHE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
ILIR TYPE OF INSURANCE INSft YWD POLICY NUMBER IMM(DDAYYYY „(MMIDOfYYYY) LIMITS
GENERAL LIABILITY EACH OCCURRENCE $^ 2,000,0
A X COMMOIECtAL GENERAL UABILITY X X PSB0001793 10!9112013 1011112014 DAMACA FO PREMISES BIEN� rrencat $ 1,000,0
CLAiMS-6AADE ® OC,'.U1R MED EXIT (Arty once person) $ 10,0
X Contractual Liab. PERSONAL S ADD INJURY $ 2,000,0
X No Co. Owned Autos GENERAL AGGREGATE $ 4,000,0
GEHL AGGPEGATF LIMIT APPLIES PER PRODUCTS-COMP/OP AGO $ 4,000,0
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
Re: Fifth Street Bridge at Santa Ana River
City of Santa Ana, its officers, employees, agents, volunteers and representatives are Additional Insurod with respect to General/Hired & Non -Owned Auto
Liability par the attached endorsement as required by written contract. Insurance is Primary and Non -Contributory. Wavier of Subrogation applies to General
Liability and Workers Compensation.
Days Notice of Cancellation with 10 Days Notice for Non -Payment of Premium in accordance with the policy provisions.
4
U SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
>P .__.,._._ THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
�`
Laura Sri ShI edy ACCORDANCE WITH THE POLICY PROVISIONS.
City of Santa Ana Assistant City Fsttorney
ATTN: Mindy Ly AUTHORIZED REPRESENTATIVE
20 Civic Center Plaza
Ross Annex (M36)
IS_,anta Ana CA 92709
O 1988-2010 ACORD CORPORATION. All rights reserved.
ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD
LIABILITY
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AANY
AUTO X
PSB0001793
10/11/2013
10/1112014
BODILY INJURY(Perperson)
$
ALL OYNED SCHEDULED
BODILY IN,;URY(PorecclderINAUTOS
HAUTOMOSILE,
AUTOSRNON-OVMIED
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PPERACCIDRNTAGEHIRED
AU70G AUTOS
P
RELLA LIAR X OCCUR
EACH OCCURRENCE
$
2,000,000
A
EXCESS LIAB CLAIMS-rTADE
IDEC011:1
SE0001694
1421112013
1011912014
AGGREGATE
$
2,000,00
RETENTI`)N $
.$
WORKERS COMPENSATION
ILIO STATU- OTFI-
ANDEMPLOYERS'UABILnY
TORY LIINITS ER
A
ANY PROFRIFTORIPARTNERIE(ECUT VEY�NIA
X
PSW00011314
10111/2013
90/1112014
Et. EACH ACCIDENT
$
1,000,000
OFFIGERMIEMBER EXCLUDED?
1,000,000
(Mandatory In NH)
E.L. DISEASE - EA EMPLOYEE
$
fm describe under
DESCRIPTION OF OPERATIONS below
E.L. DISEASE -POLICY LIMIT
$
1,000,000
B
Prof Llab/Clens Made
DPL274413
10/1112013
10/11/2014
Per Claim
2,000,000
B
Ded.:$15k Chns Made
DPL274413
10/11/2013
10/91/2014
Aggregate
2,000,000
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
Re: Fifth Street Bridge at Santa Ana River
City of Santa Ana, its officers, employees, agents, volunteers and representatives are Additional Insurod with respect to General/Hired & Non -Owned Auto
Liability par the attached endorsement as required by written contract. Insurance is Primary and Non -Contributory. Wavier of Subrogation applies to General
Liability and Workers Compensation.
Days Notice of Cancellation with 10 Days Notice for Non -Payment of Premium in accordance with the policy provisions.
4
U SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
>P .__.,._._ THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
�`
Laura Sri ShI edy ACCORDANCE WITH THE POLICY PROVISIONS.
City of Santa Ana Assistant City Fsttorney
ATTN: Mindy Ly AUTHORIZED REPRESENTATIVE
20 Civic Center Plaza
Ross Annex (M36)
IS_,anta Ana CA 92709
O 1988-2010 ACORD CORPORATION. All rights reserved.
ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD
I
Named Insured: tNKE Inc. RLI Insurance Company
Policy Number; PSB0001793
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
I?LIPaek° FOR. DESIGN PROFESSIONALS
BLANKET ADDITIONAL INSURED ENDORSEMENT
This endorsement modifies insurance provided under the following;
BUSINESSOWNERS COVERAGE FORM- SECTION II - LIABILITY
1. C. WHO IS AN INSURED is amended to include as
an additional insured any person or organization that
you ,agree in a contract or agreement requiring
insurance to include as an additional insured on this
policy, but only with respect to liability for "bodily
injury", property damage" or "personal and
advertising injury' caused in whole or in part by you
or those acting on your behalf:
a. In the performance of your ongoing operations;
b. In connection with premises owned by or rented
to you, or
c. In connection with "your work" and included
within the product -completed operations
hazard".
2. The insurance provided to the additional insured by
this endorsement is limited as follows:
a. This insurance does not apply on any basis to
any person or organization for which coverage
as an additional insured specifically is added by
another endorsement to this policy.
b. This insurance does not apply to the rendering
of or failure to render any "professional
services".
c. This endorsement does not increase any of the
limits of insurance stated in D. Liability And
Medical Expenses Limits of Insurance.
3. The following is added to SECTION III H.2. Other
Insurance - COMMON POLICY CONDITIONS
(BUT APPLICABLE ONLY TO SECTION II -
LIABiLITY)
However, if you specifically agree in a contract or
agreement that the insurance provided to an
additional insured under this policy must apply on a
primary basis, or a primary and non-contributory
basis, this insurance is primary to other insurance
that is available to such additional insured which
covers such additional insured as;a named insured,
and we will not share with that other insurance,
provided that:
a. The bodily injury" or property damage" for
which coverage is sought occurs after you have
entered into that contract or agreement; or
b. The 'personal and advertising injuryfor which
coverage is sought arises out of an offense
committed after you have entered into that
contract oragreement.
4. The following Is added to SECTION III K. 2.
Transfer of Rights of Recovery Against Others to
Us - COMMON POLICY CONDITIONS (BUT
APPLICABLE TO ONLY TO SECTION II -
LIABILITY)
We waive any rights of recovery we may have
against any person or organization because of
payments we make for 'bodily injury", "property
damage" or "personal and advertising injury" arising
out of your work performed by you, or on your
behalf, under a contract or agreement with that
person or organization We waive these rights only
where you have agreed to do so as part of a
contract or agreement with such person or
organization entered into by you before the "bodily
injury" or "property damage occurs, or the 'personal
and advertising injury" offense is committed.
ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED.
PPB 304 06 10 Page 1 of 1
Named Insured: WKE, Inc. Policy Number: PSW0001614
WORKERS' COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 040306
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT—CALIFORNIA
our payments from
:ation named in the
undei`,a written contract that';requires you;to obtain this agreenrient,from us.)
You must maintain payroll records accurately segregating the rernunerabon, of your ,employees whiie engaged in the work
deedri,bad In the Schedule.
The additional premium for this endorsement shall be—Vo of;theCaliforniawqrkqrg'PoMp)ehsafion premium otherwise due
onsuch remuneration.
Schedule
Person orbrpanization Job Description,
All persons or organizations that are party to a contract that Jobs performed for an' person or.organization
roqufres you to obtain this agreement, provided you that you have agreed with in a Written contract
executed the contract before the loss to provide this agreement