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HomeMy Public PortalAboutAgreement_ 2017-06-30 to 2018-06-30_Tess Eyrich_Communications Consultant_17-015FIRST AMENDMENT TO AGREEMENT FOR SERVICES by and between the CITY OF TEMPLE CITY and TESS R. EYRICH, a sole proprietor Dated June 30, 2017 FIRST AMENDMENT TO AGREEMENT FOR SERVICES This First Amendment to the Agreement ("First Amendment"), which is dated for reference as indicated on the cover page, is hereby entered into by and between the City of Temple City, a California charter city ("City"), and Tess R. Eyrich, a sole proprietor ("Service Provider"), as follows: RECITALS A. City and Service Provider entered in an agreement for services on September 29, 2016 ("Agreement"). The Agreement provides that Service Provider will perform on-call writing and communications advisory services. B. Section 1 of the Agreement provides a contractual term until June 30, 2017; Section 4 provides a total compensation amount not to exceed ten thousand dollars ($10,000); and Exhibit B provides for an hourly compensation cost of $40 per hour. C. This First Amendment amends: Section 1 of the Agreement to extend the contractual term until June 30, 2018; Section 4 of the Agreement to set a total compensation amount not to exceed twenty four thousand dollars ($24,000) for fiscal year 2017-18; and Exhibit B to provide an hourly compensation cost of $50 per hour. D. This First Amendment also amends Section 16 of the Agreement to modify the indemnification terms so that they will comply with new standards required of the City by its insurers. E. This First Amendment finally amends Section 17 of the Agreement to modify certain language related to insurance to better comply with standards required of the City by its insurers. However, it should be noted that Service Provider is exempt from certain provisions as identified in Resolution 17-5272. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the promises made and recited herein, the parties do hereby enter into this First Amendment, which modifies and amends the Agreement as follows: 1. AMENDMENT. The Agreement is hereby modified and amended as follows: SECTION 1. TERM OF AGREEMENT: Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement is until June 30, 201-7-2018 commencing on the date first ascribed above. SECTION 4. COMPENSATION AND METHOD OF PAYMENT: Subject to any limitations set forth in this Agreement, City agrees to pay Service Provider the amounts specified in Exhibit `B" "Compensation" and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed ten thousand dollars ($10,000) twenty four thousand dollars ($24,000) for fiscal -2- year 2017-18, unless additional compensation is approved in writing in accordance with Section 26 "Administration and Implementation" or Section 28 "Amendment" of this Agreement. EXHIBIT `B". COMPENSATION: Service Provider shall use the following rates of pay in the performance of the Services: All services shall be completed at a cost of $40-$50/hr., with a cumulative total not to exceed $10,000 $24,000 for fiscal year 2017-18 by June 30, 204 2018. 1.2 Indemnification. Section 16 of the Agreement is hereby amended to read as follows: (a) Indemnification for Professional Liability. Where the law establishes a professional standard of care for Service Provider's services, to the fullest extent permitted by law, Service Provider shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all 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) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omission of Service Provider, or by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents, employees or sub -Service Providers of Service Provider, 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, Service Provider shall indemnify, protect, defend and hold harmless City, 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 Service Provider or by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents, employees or sub -Service Providers of Service Provider. (c) Indemnification from Sub -Service Providers. Service Provider agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every Sub -Service -3- Provider or any other person or entity involved by, for, with or on behalf of Service Provider in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Service Provider fails to obtain such indemnity obligations from others as required herein, Service Provider agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Service Provider and shall survive the termination of this Agreement or this section. (d) Limitation of Indemnification. Notwithstanding any provision of this section to the contrary, design professionals are required to defend and indemnify the City 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. (e) City's Nesliaence. The provisions of this section do not apply to claims occurring as a result of City's sole 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. 1.3 Insurance. Section 17 of the Agreement is hereby amended as follows: Service Provider agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit "C" "Insurance" and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Service Provider agrees to provide City with copies of required policies upon request. 2. GENERAL PROVISIONS. 2.1 Remainder Unchanged. Except as specifically modified and amended in this First Amendment, the Agreement remains in full force and effect and binding upon the parties. in 2.2 Integration. This First Amendment consists of pages 1 through _ inclusive, which constitute the entire understanding and agreement of the parties and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the transaction discussed in this First Amendment. 2.3 Effective Date. This First Amendment shall not become effective until the date it has been formally approved by the City Council and executed by the appropriate authorities of the City and Service Provider. 2.4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this First Amendment. 2.5 References. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this First Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this First Amendment. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above. -5- ATTEST: Peggy Kuo, City Clerk APPROVED AS TO FO <OVV Eric S. Vail, City Attorney CITY: THE CITY OF TEMPLE CITY By- Bryan yBryan Cook, City Manager SERVICE PROVIDER: �tl By. —� l Name: rC in1UCCI.1 / Title: EfLrAa vi u lNh Ft f (2°d signature required if Corporation, Incorporation or Limited Liability Corporation) R Name: Title: NOTE: SERVICE PROVIDER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO SERVICE PROVIDER'S BUSINESS ENTITY. on A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA STATE OF CALIFORNIA ) COUNTY OF Ltl AW3icLEa On \S' v L� ` k 20 `-1 before me, IN Date — r Name FnE Tele Or Offe (e.g 'Jane Ow, Notay Pu W) personally appeared Name Spar(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of lw.srowa the State of California that the foregoing paragraph is true corn winger NOTARVPUBIIt:�CAtIFORNi4 4 and correct. OWV on* WITNESS my hand and official seal. Signa ure of orary Pu k OPTIONAL Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document. CAPACIT(IES) CLAIMED BY SIGNER(S) Signer's Name: ❑ Individual ❑ Corporate Officer Title(s) ❑ Partner(s) ❑ Limited ❑ General ❑ Attomey-In-Fact ❑ Trustee(s) ❑ Guardian/Conservator ❑ Other: Signer is representing: Name Of Person(s) Or Entity(ies) DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document Number Of Pages Date Of Document Signer(s) Other Than Named Above EXHIBIT "C" INSURANCE A. Insurance Requirements. Service Provider shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Service Provider, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating is an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger). Only the following "marked" requirements are applicable and Service Provider shall provide the following scope and limits of insurance: 1. Minimum Scope of Insurance. Coverage shall be at least as broad as Commercial General Liability. Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). Automobile Liability. Service Provider shall maintain automobile insurance at least as board as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Service Provider 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. Workers' Compensation. Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance as required by the Labor Code of State of California covering all persons providing Services on behalf of the Service Provider and all risks to such persons under this Agreement. Professional (Errors and Omissions) Liability. Professional liability insurance appropriate to the Service Provider's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The insurance must be maintained for at least three (3) consecutive years following the completion of Service Provider's services or the termination of this Agreement. During this additional three (3) year period, Service Provider shall annually and upon request of the City submit written evidence of this continuous coverage. Service Provider shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Service Provider agrees to maintain continuous coverage through a period of no less than three years after completion of the services required by this agreement. 1. Minimum Limits of Insurance. Service Provider shall maintain limits of insurance no less than: (1) Commercial General Liability. $1,000,000 per occurrence, $2,000,000 general aggregate for bodily injury, personal injury and property damage. (2) Automobile Liability. No less than $1,000,000 combined single limit for each accident. (3) Workers' Compensation. Workers' Compensation as required by the Labor Code of the State of California of not less than $1,000,000 per occurrence and Employer's Liability Insurance with limits of at least $1,000,000. (4) Professional Liability. $1,000,000 per claim and in the aggregate. B. Other Provisions. Insurance policies required by this Agreement shall contain the following provisions: 1. All Policies. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City. 2. Commercial General Liabilitv and Automobile Liabilitv Coverages. (1) City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Service Provider performs; products and completed operations of Service Provider; premises owned, occupied or used by Service Provider, or automobiles owned, leased, hired or borrowed by Service Provider. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees. (2) Service Provider's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (3) Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Service Provider maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Service Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Agency. (4) Coverage provided by the Service Provider shall be primary and any insurance or self-insurance or maintained by Agency shall not be required to contribute to it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Agency before the Agency's own insurance or self-insurance shall be called upon to protect is as a named insured. (5) Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers. 3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Service Provider. C. Other Requirements. Service Provider agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Service Provider furnish City with copies of original endorsements effecting coverage required by this Exhibit "C". The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time. 1. Service Provider shall furnish certificates and endorsements from each subService Provider identical to those Service Provider provides. 2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Service Provider shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. 3. The procuring of such required policy or policies of insurance shall not be construed to limit Service Provider's liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.