16-0517_AEGIS ITS_Amendment Personal Services AgreementAMENDMENT
TO PERSONAL SERVICES AGREEMENT
THIS AMENDMENT TO THE PERSONAL SERVICES AGREEMENT
between the CITY OF SAN JUAN CAPISTRANO ("City") and AEGIS ITS (Contractor)
is made and entered into, to be effective the day of 2016, as follows:
WHEREAS, City and Contractor entered into an Agreement dated June
21St, 2011, for Contractor to provide traffic signal maintenance services; and
WHEREAS, City and Contractor now desire to extend the term of the
agreement to June 30, 2018 and authorize compensation under the Agreement,
accordingly.
AMENDMENT
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained therein, the City and Contractor agree to amend the Agreement as
follows:
Section 2. Term
Section 2 (Term) is hereby amended to read as follows:
This agreement shall commence on July 1, 2011. This agreement shall be
for a one year period with Six (6) one-year extensions. Agreement extensions shall be
based on staff review of the Contractors performance. This agreement shall terminate
June 30, 2018.
Section 13. Indemnity.
Section 13. (Indemnity) is hereby amended to read as follows:
13. 1.1 To the fullest extent permitted by law, Contractor shall
defend (with counsel reasonably approved by the City), indemnify and hold the City, its
officials, officers, employees, agents and volunteers free and harmless from any and all
claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability,
judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or
equity, to property or persons, including wrongful death, (collectively, "Claims') in any
manner arising out of, pertaining to, or incident to any alleged negligent acts, omissions,
or willful misconduct of Contractor, its officials, officers, employees, subcontractors,
consultants or agents in connection with the performance of the Contractor's services, the
Project or this Agreement, including without limitation the payment of all consequential
damages, expert witness fees and reasonable attorneys' fees and other related costs and
expenses, except to the extent such Claims arise from the active negligence or willful
misconduct of the City, its officials, officers, employees, agents, and volunteers.
61147.02100\26179219.4
Notwithstanding the foregoing, to the extent Contractor's services are subject to Civil
Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil
Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the Contractor. Contractor's obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by the City, its
officials, officers, employees, agents or volunteers.
13.1.2. Additional Indemnity Obligations. Contractor shall defend,
at Contractor's own cost, expense and risk, any and all Claims covered by this section
that may be brought or instituted against the City, its officials, officers, employees, agents
or volunteers. Contractor shall pay and satisfy any judgment, award or decree that may
be rendered against the City, its officials, officers, employees, agents or volunteers as part
of any such claim, suit, action or other proceeding. Contractor shall also reimburse City
for the cost of any settlement paid by the City, its officials, officers, employees, agents or
volunteers as part of any such claim, suit, action or other proceeding. Such
reimbursement shall include payment for the City's reasonable attorney's fees and costs,
including expert witness fees. Contractor shall reimburse the City, its officials, officers,
employees, agents and volunteers, for any and all legal expenses and costs incurred by
each of them in connection therewith or in enforcing the indemnity herein provided.
Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, its officials, officers, employees, agents and volunteers.
Section 14. Insurance.
Section 14. (Insurance) is hereby be amended to read as follows:
14.1.1 Time for Compliance. Contractor shall not commence
Work under this Agreement until it has provided evidence satisfactory to the City that it
has secured all insurance required under this Section. In addition, Contractor shall not
allow any subcontractor to commence work on any subcontract until it has provided
evidence satisfactory to the City that the subcontractor has secured all insurance required
under this Section.
14.1.2 Minimum Requirements. Contractor shall, at its expense,
procure and maintain for the duration of the Agreement insurance against claims for
injuries to persons or damages to property which may arise from or in connection with
the performance of the Agreement by the Contractor, its agents, representatives,
employees or subcontractors. Contractor shall also require all of its subcontractors to
procure and maintain the same insurance for the duration of the Agreement. Such
insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scol2e of Insurance. Coverage shall be at
least as broad as the latest version of the following: (1) General Liability: Insurance
Services Office Commercial General Liability coverage (occurrence form CG 0001); (2)
Automobile Liability: Insurance Services Office Business Auto Coverage form number
CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability:
Workers' Compensation insurance as required by the State of California and Employer's
61147.02100\26179219.4
Liability Insurance. The policy shall not contain any exclusion contrary to the
Agreement, including but not limited to endorsements or provisions limiting coverage for
(1) contractual liability (including but not limited to ISO CG 24 26 or 2129); or (2) cross
liability for claims or suits by one insured against another.
(B) Minimum Limits of Insurance. Contractor shall
maintain limits no less than: (1) General Liability: Five Million ($5,000,000) per
occurrence for bodily injury, personal injury and property damage. If Commercial
General Liability Insurance or other form with general aggregate limit is used including,
but not limited to, form CG 2503, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; (2) Automobile Liability: One Million ($1,000,000) per accident for
bodily injury and property damage; and (3) Workers' Compensation and Employer's
Liability: Workers' Compensation limits as required by the Labor Code of the State of
California. Employer's Liability limits of One Million ($1,000,000) per accident for
bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices, Cancellation or Deduction of Coverage. At
least fifteen (15) days prior to the expiration of any such policy, evidence showing that
such insurance coverage has been renewed or extended shall be filed with the City. If
such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days
after receipt of written notice of such cancellation or reduction of coverage, file with the
City evidence of insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. In the event any policy
of insurance required under this Agreement does not comply with these specifications or
is canceled and not replaced, the City has the right but not the duty to obtain the
insurance it deems necessary and any premium paid by the City will be promptly
reimbursed by Contractor or the City may withhold amounts sufficient to pay premium
from Contractor payments. In the alternative, the City may suspend or terminate this
Agreement.
(D) Additional Insured. The City of San Juan
Capistrano, its officials, officers, employees, agents, and volunteers shall be named as
additional insureds on Contractor's and its subcontractors' policies of commercial general
liability and automobile liability insurance using the endorsements and forms specified
herein or exact equivalents.
14.2.1 Insurance Endorsements. The insurance policies shall
contain the following provisions, or Contractor shall provide endorsements on forms
supplied or approved by the City to add the following provisions to the insurance
policies:
(A) General Liability. The general liability policy shall
include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37,
or endorsements providing the exact same coverage, the City of San Juan Capistrano, its
officials, officers, employees, agents, and volunteers shall be covered as additional
insured with respect to the Services or ongoing and complete operations performed by or
61147.02100\26179219.4
on behalf of the Contractor, including materials, parts or equipment furnished in
connection with such work; and (2) using ISO form 20 01, or endorsements providing the
exact same coverage, the insurance coverage shall be primary insurance as respects the
City, its officials, officers, employees, agents, and volunteers, or if excess, shall stand in
an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage.
Any excess insurance shall contain a provision that such coverage shall also apply on a
primary and noncontributory basis for the benefit of the City, before the City's own
primary insurance or self-insurance shall be called upon to protect it as a named insured.
Any insurance or self-insurance maintained by the City, its officials, officers, employees,
agents, and volunteers shall be excess of the Contractor's insurance and shall not be
called upon to contribute with it in any way. Notwithstanding the minimum limits set
forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified
minimum limits of coverage shall be available to the parties required to be named as
additional insureds pursuant to this Section 3.2.11.3(A).
(B) Automobile Liability. The automobile liability
policy shall include or be endorsed (amended) to state that: (1) the City, its officials,
officers, employees, agents, and volunteers shall be covered as additional insureds with
respect to the ownership, operation, maintenance, use, loading or unloading of any auto
owned, leased, hired or borrowed by the Contractor or for which the Contractor is
responsible; and (2) the insurance coverage shall be primary insurance as respects the
City, its officials, officers, employees, agents, and volunteers, or if excess, shall stand in
an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage.
Any insurance or self-insurance maintained by the City, its officials, officers, employees,
agents, and volunteers shall be excess of the Contractor's insurance and shall not be
called upon to contribute with it in any way. Notwithstanding the minimum limits set
forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified
minimum limits of coverage shall be available to the parties required to be named as
additional insureds pursuant to this Section 3.2.11.3(B).
(C) Workers' Compensation and Employer's Liability
Coverne. The insurer shall agree to waive all rights of subrogation against the City, its
officials, officers, employees, agents, and volunteers for losses paid under the terms of
the insurance policy which arise from work performed by the Contractor.
(D) All Coverages. Each insurance policy required by
this Agreement shall be endorsed to state that: (A) coverage shall not be suspended,
voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of
premium) prior written notice by certified mail, return receipt requested, has been given
to the City; and (B) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the City,
its officials, officers, employees, agents, and volunteers. Any failure to comply with
reporting or other provisions of the policies including breaches of warranties shall not
affect coverage provided to the City, its officials, officers, employees, agents and
volunteers, or any other additional insureds.
61147.02100\26179219.4
14.2.2 Spparation of Insureds; No Special Limitations, Waiver of
Subrogation. All insurance required by this Section shall contain standard separation of
insureds provisions. In addition, such insurance shall not contain any special limitations
on the scope of protection afforded to the City, its officials, officers, employees, agents,
and volunteers. All policies shall waive any right of subrogation of the insurer against
the City, its officials, officers, employees, agents, and volunteers, or any other additional
insureds, or shall specifically allow Contractor or others providing insurance evidence in
compliance with these specifications to waive their right of recovery prior to a loss.
Contractor hereby waives its own right of recovery against City, its officials, officers,
employees, agents, and volunteers, or any other additional insureds, and shall require
similar written express waivers and insurance clauses from each of its subcontractors.
14.2.3 Deductibles and Self -Insurance Retentions. Any
deductibles or self-insured retentions must be declared to and approved by the City.
Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self-insured retentions as respects the City, its
officials, officers, employees, agents, and volunteers; or (2) the Contractor shall procure a
bond guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
14.2.4 Subcontractor Insurance Requirements. Contractor shall
not allow any subcontractors to commence work on any subcontract relating to the work
under the Agreement until they have provided evidence satisfactory to the City that they
have secured all insurance required under this Section. If requested by Contractor, the
City may approve different scopes or minimum limits of insurance for particular
subcontractors. The Contractor and the City shall be named as additional insureds on all
subcontractors' policies of Commercial General Liability using ISO form 20 38, or
coverage at least as broad.
14,2,5 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best's rating no less than ANIII, licensed to do business in
California, and satisfactory to the City.
14.2.6 Verification of Coverage. Contractor shall furnish City
with original certificates of insurance and endorsements effecting coverage required by
this Agreement on forms satisfactory to the City. The certificates and endorsements for
each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf, and shall be on forms provided by the City if requested. All
certificates and endorsements must be received and approved by the City before work
commences. The City reserves the right to require complete, certified copies of all
required insurance policies, at any time.
14.2.7 Reporting, of Claims. Contractor shall report to the City, in
addition to Contractor's insurer, any and all insurance claims submitted by Contractor in
connection with the Services under this Agreement.
61147 02100\26179219 4
14.3.1 Safety. Contractor shall execute and maintain its work so
as to avoid injury or damage to any person or property. In carrying out its Services, the
Contractor shall at all times be in compliance with all applicable local, state and federal
laws, rules and regulations, and shall exercise all necessary precautions for the safety of
employees appropriate to the nature of the work and the conditions under which the work
is to be performed. Safety precautions as applicable shall include, but shall not be limited
to: (A) adequate life protection and lifesaving equipment and procedures; (B)
instructions in accident prevention for all employees and subcontractors, such as safe
walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space
procedures, trenching and shoring, equipment and other safety devices, equipment and
wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and
(C) adequate facilities for the proper inspection and maintenance of all safety measures.
Section 9. Compliance with Law
Section 9 (Compliance with Law) is hereby be amended to read as follows:
Contractor shall comply with all applicable laws, ordinances, codes and
regulations of federal, state and local government.
All other terms and conditions of said Agreement shall remain in full force and
effect.
CITY OF SAN JUAN CAPISTRANO
ti1Mff13 i i a
ATTEST:
LkrA T
MA -IA MOR IS, TY CLERK
APPROVED AS TO FORM:
J1 F 'W'Y BALLINGER, CITY ATTORNEY
61147.02100\26179219.4