2013/06/18 Esgil, LLC Amendment 2 FY11, change to term of services and compensation AMENDMENT No. 2 TO PROFESSIONAL SERVICES AGREEMENT
(Esgil Corporation)
THIS is Amendment No. 2 to that certain AGREEMENT for Professional Services
Agreement("Agreement") made July 1, 2011, by and between the City of Menifee ("City") and
Consultant ESGIL CORPORATION ("Consultant"), which Amendment is made and entered into
June 18, 2013 to extend the Term of Services of the contract.
1. Section 1.1, "Term of Services°' is amended to read,
Section 1A TERM OF SERVICES The term of this Agreement shall
begin on the Effective Date and shall end on June 30, 2014.
Consultant shall not begin any ordered work described in Exhibit A prior to that
date, unless the term of the Agreement is otherwise terminated or
extended as provided for in Section 8. The time provided the Consultant to
complete the services required by this Agreement shall not affect the City's
right to terminate the Agreement, as provided for in Section 8.
2. Section 2, "COMPENSATION" is amended to read,
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not
to exceed eighty-five thousand dollars($85,000) notwithstanding any contrary
indications that may be contained in Consultant's proposal, for services to be
performed and reimbursable costs incurred under this Agreement. In the event
of a conflict between this Agreement and Exhibit A, regarding the amount of
compensation,this Agreement shall prevail. City shall pay Consultant for
services rendered pursuant to this Agreement at the time and in the manner set
forth herein. The payments specified below shall be the only payments from City
to Consultant for services rendered pursuant to this Agreement. Consultant shall
submit all invoices to City in the manner specified herein. Except as specifically
authorized in advance by City, Consultant shall not bill City for duplicate services
performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following
information:
• Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first
invoice, etc.;
• The beginning and ending dates of the billing period;
• A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement,
and the percentage of completion;
• At City's option,for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person
doing the work, the hours spent by each person, a brief description of the
work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by
Consultant and each employee, agent, and subcontractor of Consultant
performing services hereunder necessary to complete the work described in
Exhibit A;
• Receipts for expenses to be reimbursed;
AMENDMENT No. 2 TO PROFESSIONAL SERVICES AGREEMENT
(Esgil Corporation)
• The Consultant's signature.
2_2 MonthlV Payment. City shall make monthly payments, based on invoices
received, for services satisfactorily performed, and for authorized
reimbursable costs incurred. City shall have thirty (30) days from the receipt
of an invoice that complies with all of the requirements above to pay
Consultant.
2_3 Final Payment. City shall pay the last ten percent(10%) of the total sum due
pursuant to this Agreement within sixty (60) days after completion of the
services and submittal to City of a final invoice, if all services required have
been satisfactorily performed.
2_4 Total Payment. City shall not pay any additional sum for any expense or
cost whatsoever incurred by Consultant in rendering services pursuant to this
Agreement. City shall make no payment for any extra, further, or additional
service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of
the maximum amount of compensation provided above either for a task or for
the entire Agreement, unless the Agreement is modified in writing prior to the
submission of such an invoice.
2_5 Hourly Fees. Fees for work performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with
Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the
maximum amount of the contract.
2_7 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any federal or state
taxes.
2.8 Payment upon Termination. In the event that the City or Consultant
Terminates this Agreement pursuant to Section 8, the City shall compensate
the Consultant for all outstanding costs and reimbursable expenses incurred
for work satisfactorily completed as of the date of written notice of
termination. Consultant shall maintain adequate logs and timesheets in order
to verify costs incurred to that date.
3. Section 4.4.2, "Verification of coverage" is amended to read,
4.4.2 Verification of coverage. Prior to beginning any work under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional
insured endorsement or policy language granting additional insured status
complete certified copies of all policies, including complete certified copies of all
endorsements. All copies of policies and certified endorsements shall show the
signature of a person authorized by that insurer to bind coverage on its behalf.
The Certificate of Insurance must include the following reference: (Contract
number or project name). The name and address for Additional Insured
endorsements, Certificates of Insurance and Notice of Cancellation is: City of
Menifee, 29714 Haun Road, Menifee, CA 92586. The City must be endorsed as
AMENDMENT No. 2 TO PROFESSIONAL SERVICES AGREEMENT
(Esgil Corporation)
an additional insured for liability arising out of ongoing and completed
operations by or on behalf of the Consultant.
4. Section 5, "Indemnification" is amended to read,
5. INDEMNIFICATION.
Section 5. INDEMNIFICATION
(a) Indemnification for Professional Liability. Where the law establishes a
professional standard of care for Consultant's Services, to the fullest extent
permitted by law, Consultant shall indemnify, protect, defend and hold harmless
any and all losses, liabilities, damages, costs and expenses, including attorney's
fees and costs to the extent same are caused in whole or in part by any negligent
or wrongful act, error or omission of Consultant, its officers, agents, employees or
sub-consultants (or any entity or individual that Consultant shall bear the legal
liability thereof) in the performance of professional services under this
Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law,
Consultant shall indemnify, protect, defend and hold harmless the City of
Menifee, and any and all of its employees, officials and agents from and against
any liability(including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of
any kind,whether actual, alleged or threatened, including attorneys fees and
costs, court costs, interest, defense costs, and expert witness fees), where the
same arise out of, are a consequence of, or are in any way attributable to, in
whole or in part, the performance of this Agreement by Consultant or by any
individual or entity for which Consultant is legally liable, including but not limited
to officers, agents, employees or sub-contractors of Consultant.
(c) Limitation of Indemnification. Notwithstanding any provision of this Section 5,
Indemnification to the contrary, design professionals are required to defend and
indemnify the City of Menifee only to the extent permitted by Civil Code Section
2782.8, which limits the liability of a design professional to claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs that arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the design professional. The term "design
professional" as defined in Section 2782.8, is limited to licensed architects,
licensed landscape architects, registered professional engineers, professional
land surveyors, and the business entities that offer such services in accordance
with the applicable provisions of the California Business and Professions Code.
(b) The provisions of this section do not apply to claims occurring as a
result of City's sole or active negligence. The provisions of this section
shall not release City from liability arising from gross negligence or willful
acts or omissions of City or any and all of its officials, employees and
agents.
6. Section 10.9 "Integration' is amended to read,
AMENDMENT No. 2 TO PROFESSIONAL SERVICES AGREEMENT
(Esgil Corporation)
10.9 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design
specifications, and each page of construction drawings shall be stamped/sealed
and signed by the licensed professional responsible for the report/design
preparation. The stamp/seal shall be in a block entitled "Seal and Signature of
Registered Professional with report/design responsibility," as in the following
example.
7. Section 10.10 "Counterparts" is amended to read,
10.10 Integration. This Agreement, including the scope of work attached hereto
and incorporated herein as Exhibit A, represents the entire and integrated
agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
8. Section 10 is amended to add,
10_11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one agreement.
10.12 Nondiscrimination. Consultant shall not discriminate in anyway, against
any person n the basis of race, color, religious creed, national origin, ancestry,
sex, age, physical handicap, medical condition or marital status in connection
with or related to the performance of this Agreement.
9. All other terms and conditions shall remain the same
The parties have executed this amendment No. 2 as of June 18, 2013.
OF E ESGIL CORPORATION
CITY F I
Scott A. Mann , Mayor Kurt Culver, President
Attest:
��fi`f UI UY l�
Kathy Bennett, City Clerk Charles Mendenhall
Corporate Secretary
Ju ie Hayward-Biggs, li City Attorney