FIRST AMENDMENT TO JANITORIAL SERVICES AGREEMENT

This First Amendment to Janitorial Services Agreement is made and entered into

effective this 1st day of February, 2013, by and between FRESNO COUNTY

EMPLOYEES’ RETIREMENT ASSOCIATION, a Political Subdivision of the State of

California, hereinafter referred to as "FCERA", and ABM JANITORIAL whose address

is 4147 N Bendel, Suite 104, Fresno, CA 93722, hereinafter referred to as

"CONTRACTOR".

WITNESSETH:

WHEREAS, FCERA and CONTRACTOR entered into an agreement made as of

February 1, 2010, ("Agreement"), under which CONTRACTOR agreed to provide

janitorial services to FCERA; and

WHEREAS, Paragraph 3 of the Agreement provides that the parties may extend

the terms of the Agreement by two one-year extensions, upon written agreement.

NOW, THEREFORE, FCERA AND CONTRACTOR hereby agree to extend the

term of the Agreement through and including January 31, 2014,

In all other respects the Agreement shall remain in full force and effect according

to its terms.

IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to

Janitorial Services Agreement to be executed as of the day and year first above

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written.

22 ABM Janitorial

Fresno Co. Employees’ Retirement Assoc 23

24 Authorized Signature

Philip Kapler

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26 Print Name & Title

Print Name & Title

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Avalos, Elizabeth

From: Avalos, Elizabeth

Sent: Friday, January 11,20132:45 PM

To: ’Leiderman, Harvey L.’

Subject: RE: Janitorial Services Agreement and Extension

Thank you.

Elizabeth Avalos Administrative Secretary Fresno County Employees Retirement Association 1111 H Street Fresno, CA 93721 559457.0681 phone 559,457.0318 fax

From: Leiderman, Harvey L [mailto:HLeiderman@Reedsmith.com] Sent: Friday, January 11, 2013 2:07 PM To: Kapler, Phil; Avalos, Elizabeth Cc: Rieger, Jeffrey R. Subject: RE: Janitorial Services Agreement and Extension

Here ya go, just a few edits needed.

Harvey

From: Kapler, Phil [mailto:pkapler@co.fresno.ca.us] Sent: Friday, January 11, 2013 1:53 PM To: Leiderman, Harvey L.; Rieger, Jeffrey R. Cc: Avalos, Elizabeth Subject: FW: Janitorial Services Ageeement and Extension

Harvey I Jeff,

Attached are materials related to a facility service contract for FCERA that I am submitting for your review.

Actually, what we are doing is simply a contract extension, so the amendment is all that is new.

Feel free to share any feedback with Elizabeth, as she is actually the one who oversees this relationship and the draft amendment is her handiwork.

Phil Kapler FCERA

From: Avalos, Elizabeth Sent: Friday, January 11, 2013 1:36 PM

1/11/2013

Page 2 of 2

To: Kapler, Phil Subject: Janitorial Services Ageeement and Extension

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Disclaimer Version RS.US.20.10.00

1/11/2013

AGREEMENT

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THIS AGREEMENT (’Agreement") is made and entered into this 1st day of

4 February 2010 ("Effective Date’), by and between the FRESNO EMPLOYEES’ RETIREMENT

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a Political Subdivision of the State of California, hereinafter referred to as

6 "ECERA", and ABM JANITORIAL whose address is 4147 N Bendel, Suite 104, Fresno, CA

7 93722, hereinafter referred to as "CONTRACTOR".

WITN E$SET}-l:

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OBLIGATIONS OF THE CONTRACTOR

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The CONTRACTOR will provide professional janitorial services as generally

11 provided in this Agreement and as described in the Request for Quotations dated December 5,

12 2009 (Attachment A), the CONTRACTOR’S response received December 22, 2009 (Attachment

13 B), Which documents are incorporated in this Agreement by reference. CONTRACTOR

14 represents and warrants that CONTRACTOR shall: (i) perform all services in a timely, competent

15 and workpersonlike manner; and (ii) comply with all applicable FCERA policies (including security

16 policies). CONTRACTOR shall not damage FCERA’s property. In the event that CONTRACTOR

17 does damage FCERA’s property, CONTRACTOR shall immediately contact FCERA.

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2. OBLIGATIONS OF FCERA

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FCERA will provide access to the facilities each work day between 7:00 p.m.

20 and 12:00 am. Pacific Standard Time and on weekends as prearranged.

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3. TERM

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This Agreement shall be in effect for on the period beginning the Effective Date

23 and shall continue until the 31st day of January, 2013 (unless earlier terminated as provided in this

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with two one-year extensions available upon written agreement of all parties.

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TERMINATION

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A. Non-Allocation of Funds - Notwithstanding anything to the contrary, the

27 terms of this Agreement, and the services to be provided thereunder, are contingent on the

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approval of funds by the appropriating government agency. Should sufficient funds not be

2 allocated (including without limitation in subsequent years), the services provided may be

3 modified, or this Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days

4 advance written notice, with no payment due CONTRACTOR other than for work actually

5 performed prior to such termination date.

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B. Breach of Contract - FCERA may immediately suspend or terminate this

7 Agreement in whole or in part, where in the determination of ECERA there is:

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1) A failure to comply with any term of this Agreement; or

2) Improperly performed service.

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In no event shall any payment by FCERA constitute a waiver by FCERA of any

11 breach of this Agreement or any default which may then exist on the part of the CONTRACTOR.

¶2 Neither shall such payment impair or prejudice any remedy available to ECERA with respect to the

13 breach or default. FCERA shall have the right to demand of the CONTRACTOR the repayment to

14 FCERA of any funds disbursed to the CONTRACTOR under this Agreement, which in the

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of FCERA were not expended in accordance with the terms of this Agreement. The

16 CONTRACTOR shall promptly refund any such funds upon demand.

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C. Without Cause - Under circumstances other than those set forth above,

18 this Agreement may be terminated by FCERA upon the giving of thirty (30) days advance written

19 notice of an intention to terminate to CONTRACTOR.

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5. COMPENSATIONJINVOICING: FCERA agrees to pay CONTRACTOR and

21 CONTRACTOR agrees to receive compensation as follows: $1,199.00 per month plus actual cost

22 of paper products, soaps, trash liners, etc provided by CONTRACTOR. CONTRACTOR shall

23 submit monthly invoices to FCERA. CONTACTOR estimates that the aggregate monthly cost of

24 such items shall be

dollars ($__________ USD) and in no event shall

25 the cost of such items exceed the above such value without written agreement by FCERA.

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In no event shall services performed under this Agreement be in excess of

27 $14,388 per year, excluding paper products, soaps, trash liners, etc., during the term of this

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Agreement. Except as provided above in this Section 5, it is understood that all expenses

2 incidental to CONTRACTOR’S performance of services under this Agreement shall be borne by

3 CONTRACTOR.

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Payment will be made no later than forty-five (45) days after receipt of a

5 properly itemized invoice. FCERA shall have the right to withhold amounts disputed in good faith

6 without CONTRACTOR asserting a payment default as to such amounts.

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6. INDEPENDENT CONTRACTOR: In performance of the work, duties and

8 obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and

9 agreed that CONTRACTOR, including any and all of the CONTRACTOR’S officers, agents, and

10 employees will at all times be acting and performing as an independent contractor, and shall act in

11 an independent capacity and not as an officer, agent, servant, employee, joint venturer, partner, or

12 associate of FCERA. Furthermore, FCERA shall have no right to control or supervise or direct the

13 manner or method by which CONTRACTOR shall perform its work and function. However,

14 FCERA shall retain the right to administer this Agreement so as to verify that CONTRACTOR is

15 performing its obligations in accordance with the terms and conditions thereof.

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CONTRACTOR shall comply with all applicable provisions of law and the rules

17 and regulations, if any, of governmental authorities having jurisdiction over matters the subject

18 thereof.

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Because of its status as an independent contractor, CONTRACTOR shall have

20 absolutely no right to employment rights and benefits available to FCERA employees.

21 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its

22 employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely

23 responsible and save FCERA harmless from all matters relating to payment of CONTRACTOR’S

24 employees, including compliance with Social Security withholding and all other regulations

25 governing such matters. It is acknowledged that during the term of this Agreement,

26 CONTRACTOR may be providing services to others unrelated to FCERA or to this Agreement.

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MODIFICATION: Any matters of this Agreement maybe modified from time

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to time by the written consent of all the parties without, in any way, affecting the remainder

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B. NON-ASSIGNMENT: CONTRACTOR may not assign, transfer or

3 sub-contract this Agreement nor their rights or duties under this Agreement, in whole or in part,

4 without FCERA’s prior written consent

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9. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold

6 harmless, and at FCERA’S request, defend FCERA, its officers, agents, and employees from any

7 and all costs and expenses (including without limitation attorneys’ fees), damages, liabilities,

8 claims, and losses occurring or resulting to FCERA in connection with the performance, or failure

9 to perform, by CONTRACTOR, its officers, agents, or employees under this Agreement, and from

10 any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to

11 any person, firm, or corporation who may be injured or damaged by the performance, or failure

12 to perform, of CONTRACTOR, its officers, agents, or employees under this Agreement.

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10. COUNTERPARTS: This agreement maybe executed in-any number of

14 counterparts, each of which shalt be deemed an original.

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11 CONFIDENTIALITY: The CONTRACTOR acknowledges that the job site

16 (1111 H Street, Fresno Ca) contains information of a confidential nature, and CONTRACTOR may

17 have access or learn of information that should reasonably be considered confidential either due

18 to the nature of the information or the manner of disclosure (collectively, "Confidential

19 Information"). CONTRACTOR agrees to hold Confidential Information in strictest confidence and

20 not to disclose or share such with anyone and to use such for the sole benefit of FCERA.

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12. INSURANCE

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Without limiting FCERA’s right to obtain indemnification from CONTRACTOR

23 or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect the

24 following insurance policies throughout the term of this Agreement:

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A. Commercial General Liability

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Commercial General Liability Insurance with limits of not less than One

27 Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars

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1 ($2,000,000). This policy shall be issued on a per occurrence basis. FCERA may require specific

2 coverages including completed operations, products liability, contractual liability, Explosion-

3 Collapse-Underground, fire legal liability or any other liability insurance deemed necessary

4 because of the nature of this contract.

5 B. Automobile Liability

6 Comprehensive Automobile Liability Insurance with limits for bodily injury of

7 not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred

8 Thousand Dollars ($500,000.00) per accident and for property damages of not less than Fifty

9 Thousand Dollars ($50,000.00), or such coverage with a combined single limit of Five Hundred

10 Thousand Dollars ($500,000.00). Coverage should include owned and non-owned vehicles used

11 in connection with this Agreement

12 C. Workers Compensation

13 A policy of Worker’s Compensation insurance as may be required by the

14 California Labor Code.

15 CONTRACTOR shall obtain endorsements to the Commercial General Liability

16 insurance naming FCERA, its officers, agents, and employees, individually and collectively, as

17 additional insured, but only insofar as the operations under this Agreement are concerned. Such

18 coverage for additional insured shall apply as primary insurance and any other insurance, or

19 self-insurance, maintained by FCERA, its officers, agents and employees shall be excess only

20 and not contributing with insurance provided under CONTRACTOR’s policies herein. This

21 insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written

22 notice given to FCERA.

23 Within Thirty (30) days from the date CONTRACTOR executes this

24 Agreement CONTRACTOR shall provide certificates of insurance and endorsement as stated

25 above for all of the foregoing policies, as required herein, to FCERA, Attention Becky Van Wyk,

26 stating that such insurance coverages have been obtained and are in full force; that FCERA, its

27 officers, agents and employees will not be responsible for any premiums on the policies; that such

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Commercial General Liability insurance names FCERA, its officers, agents and employees,

individually and collectively, as additional insured, but only insofar as the operations under this

Agreement are concerned; that such coverage for additional insured shall apply as primary

insurance and any other insurance, or self-insurance, maintained by FCERA, its officers, agents

and employees, shall be excess only and not contributing with insurance provided under

policies herein; and that this insurance shall not be cancelled or changed

without a minimum of thirty (30) days advance, written notice given to FCERA.

In the event CONTRACTOR fails to keep in effect at all times insurance

coverage as herein provided, FCERA may, in addition to other remedies it may have, suspend or

this Agreement upon the occurrence of such event.

All policies shall be with admitted insurers licensed to do business in the State

of California. Insurance purchased shall be purchased from companies possessing a current AM.

Best, inc. rating of A FSC VII or better.

13. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during

business hours, and as often as FCERA may deem necessary, make available to FCERA for

examination all of its records and data with respect to the matters covered by this Agreement.

The CONTRACTOR shall, upon request by FCERA, permit FCERA to audit and inspect all of

such records and data necessary to ensure CONTRACTOR’S compliance with the terms of this

Agreement.

If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR

shall be subject to the examination and audit of the State Auditor for a period of three (3) years

after final payment under contract (Government Code Section 8546.7).

14. NOTICES: The persons and their addresses having authority to give and

receive notices under this Agreement include the following:

FCERA ECERA Attn: Becky Van Wyk 1111 H Street

4747 N Bendel, Suite 104 Fresno, CA 93721

Fresno, CA 93722

Any and all notices between FCERA and the CONTRACTOR provided for or

2 permitted under this Agreement or by law shalt be in writing and shall be deemed duly served

3 when personally delivered to one of the parties, or in lieu of such personal services, when

4 deposited in the United States Mail, postage prepaid, addressed to such party.

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15. GOVERNING LAW: Venue for any action arising out of or related to this

6 Agreement shall only be in Fresno County, California and the parties irrevocably consent to such

7 jurisdiction.

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The rights and obligations of the parties and all interpretation and perlbrmance

9 of this Agreement shall be governed in all respects by the laws of the State of California.

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16. ENTIRE AGREEMENT; SEVERABILITY: The Request for Quotes dated

11 November 30, 2008 and the response by the CONTRACTOR submitted on December 22, 2009

12 are incorporated into this Agreement by reference. This Agreement and the Request for Quotes

13 and Contractors response constitute the entire agreement between the CONTRACTOR and

14 FCERA with respect to the subject matter hereof and supersedes all previous Agreement

15 negotiations, commitments, writings, advertisements, publications, and understanding of any

16 nature whatsoever unless expressly included in this Agreement. In the event of any

17 inconsistency in interpreting the documents which constitute this Agreement, the inconsistency

18 shalt be resolved by giving precedence in the following order of priority: (1) the text of this

19 Agreement, excluding Attachment A FCERA’S Request for Quote dated December 5, 2009 and

20 Attachment B the CONTRACTOR’S Quote in response thereto); and (2) Attachment A FCERA’S

21 Request for Quote dated December 5, 2009; and (3) Attachment B the CONTRACTOR’S

22 quotation made in response to FCERA’S Request for Quote dated December22, 2009. In the

23 event that any provision of this Agreement is for any reason held to be unenforceable, such

24 unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall

25 be construed and enforced as if such unenforceable provisions had never been contained herein.

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17. CONFLICTS OF INTEREST: GRATUITIES. CONTRACTOR warrants that no

27 gratuities in the form of entertainment, gifts, or otherwise, in excess of $100 per gift, were offered

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or give by CONTRACTOR, or any agent or representative of CONTRACTOR, to any officer,

2 fiduciary, advisor, or employee of Customer or the Fresno County Employees’ Retirement

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with a view toward securing this Agreement or securing favorable treatment with

4 respect to the awarding or the making of any determination with respect to this Agreement.

5 CONTRACTOR covenants that no such gratuities will be given to any such person with a view

6 towards securing favorable treatment with respect to making a determination with respect to the

7 performance, termination and/or continuation of this Agreement. CONTRACTOR shall review and

8 become familiar with the conflicts of interest and reporting provisions applicable to the Customer,

9 contained in California Government Code sections 1090 to 1097 inclusive, 31528, 82030 and

10 87100 to 87103 inclusive.

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18. Certification Concerning Financial Contracts or Solicitation

12 CONTRACTOR represents and warrants that to the best of its knowledge no employee of FCERA

13 or fiduciary whose position in FCERA enables such person to influence the award of this

14 Agreement or any competing agreement, and no spouse or economic dependent of such person

15 is or will be employed in any capacity by CONTRACTOR herein, or does or will have any direct or

16 indirect financial interest in this Agreement CONTRACTOR will deliver annually to FCERA, or

17 more frequently if requested, a certificate in The form as provided by FCERA with respect to the

18 interests of persons related to FCERA, as specified from time to time by FCERA.

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19. Penalties/lnterestlAttomev’s Fees

20 CONTRACTOR and FCERA will in good faith perform its required obligations hereunder and

21 FCERA does not agree to pay any penalties, liquidated damages, interest, or attorney’s fees,

22 except as required by law or otherwise stated herein.

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20. Minority OwnedlWomen Owned Business Enterprise

24 CONTRACTOR shall take affirmative action to ensure that qualified applicants are employed,

25 and that employees are treated fairly during employment, without regard to race, color, religion,

26 sex, handicap, ancestry or national origin. Such action shall include, but not be limited to, the

27 following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising;

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layoff or termination; rates of pay or other forms of compensation; and selection for training,

including apprenticeship.

21. Non-Collusion and Acceptance

The undersigned attests, subject to the penalties for perjury, that he/she Is the contracting

party, or that he/she is the representative, agent, member or officer of the contracting party, that

he/she has not, nor has any other member, employee, representative, agent or officer of the

firm, company, corporation or partnership represented to him, directly or indirectly, to the best

of his/her knowledge, entered into or offered to enter into any combination, collusion or

agreement to receive or pay, and that he/she has not received or paid, any sum of money or

other consideration for the execution of this contract other than that which appears on the face

of the contract.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of

the day and year first hereinabove written.

Fresno CAunty Employees’ Retirement Association

7 (F

LL’i� d- 1~ Roberto L. Pena -

Retirement Administrator

DATE: 312J10

REVIVED & RECOMMENDED FOR APPROVAL:

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DATE:

CA Tax Permit Number . For Out of State vendors

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Absistant Retirement Administrator

DATE: 4-0q a APPROVED AS TO LEGAL FORM:

FCERA Counsel

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ASM Janitorial services

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