AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made IUld entered into as of July 1, 2021 by and between the City of Marysville ("City") and Management Advisory Services ("MAS", or "Consultant") effective as ofJuly 1,2021 (the "Effective Date").
RECITALS
A. The Consultant is specially trained, experienced and competent to provide the professional services required by this Agreement.
B. The Consultant possesses the skill, experience, ability, background. license, certification, as required by law and knowledge to provide the professional services described in this Agreement in accordance with the terms and conditions descn"bed herein.
C. City desires to retain Consultant to render the professional services as set forth in this Agreement.
AGREEMENT
1. Scope of Services. The Consultant shall provide on-call planning services on projects assigned by the City ("Work"). The Work shall commence on the Effective Date and shall be completed to the satisfaction ofthe City by December 31,2021 unless such date is extended or otherwise modified by the City in writing.
2. Time of Perform8IlC!(" The services shall commence upon execution of this Agreement, and shall continue until terminated as set orth in Section 6 (Termination) of this Agreement.
3. Compen.5ation. Compensation to be paid to Consultant is not to exceed $120,000.00 for the services for Work perfonned by Consultant Consultant shall be compensated on a time and materials basis. Consultants time is invoiced at $140.00 an hour. Travel is billed at one-half time. Reimbursable expenses are invoiced directly without any additional mark: up. Mileage is invoiced at IRS rates. Payment by City under this Agreement shall not be deemed a waiver of defects in Consultant's services, even if such defects were known to the City at the time ofpayment. Payments to Consultant are independent of receipt by the City ofany reimbursement ofcosts payable by third parties.
4. Method of Payment. Consultant sball submit monthly billing to City describing the services provided during the preceding month. Consultant's bills shall include a brief Agreement for Professional Servi<:e$
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description ofthe services perfonned, the date the services were perfonned. the number of hours spent and by whom. and a description of any reimbursable expenditures. City shall pay Consultant within Ii ~le time upon approval of the monthly invoice by City stan: such approval to not be unreasonably withheld.
5. Additional Services. At any time during the term of this Agreement, City may request that Consultant provide Additional Services. As used herein, "Additional Services" means any services which are determined by City to be necessary for the proper completion of Consultant's services, but which the parties did not reasonably anticipftte would be necessary at the execution ofthis Agreement. Consultant shall not perform. nor be compensated for, Additional Services without prior written authorization :from City that specifies the services to be provided, personnel to be used, and the not-to-exceed cost for the additional services.
6. Termination~ This Agreement may be terminated by the City at any time. Upon termination, Consultant shall be entitled to compensation for services properly performed up to the effective date oftermination.
7. Ownership ofDocuments. The City acknowledges the Consultant's documents, including electronic files, as the work papers ofthe Consultant and the Consultant's instruments of professional service. All plans, studies, documents, and other writings prepared by and for Consultant, its officers, employees, and agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Consultant for such services, and the City sball have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall not be held liable for any modification or reuse of the City-owned instruments ofservice for purposes outside this Agreement Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents, and other writings to City within three (3) days after written request.
Nothing herein shall be construed as a limitation on Consultant's right to re-use component design details, features and concepts on other projects, in other contexts or for other clients.
8. Licensing of Intellectual Propertv. This Agreement creates a nonexclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in documents or works of authorship fixed in Agreement for Professional Services
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any tangible medium of expression including, but not limited to, data magnetically or otherwise recorded on computer diskettes, CDs or other electronic fonn which are prepared or caused to be prepared. by Consultant under this Agreement ("Documents and Data''). Consultant shall require all subeonsultants to agree in writing that City is granted a nonexclusive and perpetual license for any Documents and Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which may be provided to Consultant by City. City shall not be limited in any way in its use ofthe Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk.
9. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance ofthe Agreement shall be held confidential by Consultant unless and until such documents become a matter of public record. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes o'lher than the perfonnance ofthe services under this Agreement. Nor shall such materials be disclosed to any person or entity not connected with the perfonnance of the services under this Agreement. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known., or has become known, to the related industty shall be deemed confidential. Consultant shall not use City's name or insignia. photographs relating to project for which Consultant's services are rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, newspaper, television, or radio production or other similar medium without the prior written consent ofCity.
10. Consu]tant's Books and Records
a. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, expenditures. and disbursements charged to City for a minimum period oftbree (3) years, or for any longer period required by law, from the date offinal payment to Consultant to this Agreement Agreement for Professional Services
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b. Consultant shall maintain all documents and records which demonstrate perfonnance under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date oftermination or completion ofthe Agreement.
c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Finance Director, or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at 526 C Street, Marysville, California when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address indicated for receipt ofnotices in this Agreement d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment, or termination of Consultant's business, City may, by written request by any ofthe above named officers, require that custody ofthe records be given to the City and that documents be maintained by City Hall.
11. Independent Contractor. It is understood that Consultant, in the performance of the services agreed. to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. Consultant shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Consultant hereby expressly waives any claim it may have to any such rights.
12. Interest of Consultant. Consultant (including principals, associates, and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income. interest in real property or investment which would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement.
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ConsultflD.t is not It designated employee within the meaning ofthe Political Reform Act because Consultant:
a. will conduct research and arrive at conclusions with respect to its rendition of infonnation, advice. recommendation, or counsel independent of the control and direction ofthe City or any City official. other than normal agreement monitoring; and
b. possesses DO authority with respect to any City decision beyond rendition of information, advice, recommendation, or counsel. (FPPC Reg. 18700(a)(2».
13. Professional Ability of Consultant. City has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. All services provided by Consultant under this Agreement, shall be by Consultant's subconsultants Paul Richardson or Kathy Pease and shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected ofcompetent professionals in Consultant's field ofexpertise.
14. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state, and local laws, codes, ordinances, and regulations.
15. Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance, and approvals of whatsoever nature which are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, my licenses. permits, insurance. and approvals which are required by the City for its business.
16. IndemnitY. To the fullest extent allowed by law, Consultant specifically agrees to indemnify. defend, and hold hannless the City, its officers, agents, and employees (hereinafter collectively the "City") from and against any and all actions, claims, demands, losses, expenses (including attorneys' fees and expert witness expenses), damages, and liabilities resulting from injury or death of a person or injury to property or any other claim, arising out of or in any way connected with the performance of this Agreement, however caused regardless of any negligence of the City, whether active or passive, excepting only such claims as may be caused by the sole active negligence or willful misconduct ofthe City. The Consultant shall pay all costs that Agreement for Professional Services
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may be incurred by the City in enforcing this indemnity, including reasonable attorneys' fees. Consultant shall provide indemnity to the City pursuant to this paragraph in the event the Claimant and/or the City allege conduct on Consultant's part which renders Consultant fully or partially responsible for the alleged claim or otherwise obligated to provide a defense and/or indemnity to the City. Consultant's obligations ofdefense and indemnity arise even ifthe claim is frivolous or lacking in merit. Consultant shaH defend and indemnify the City pursuant to this section unless and until it is finally established by a court of law that the City's sole active negligence or willful misconduct caused the al1eged claim. The defense and indemnification obligations ofthis Agreement are undertaken in addition to, and shall in no way be limited by, the insurance obligations contained in this Agreement. The indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Consultant or its agents under workers' compensation acts, disability benefit acts or other employee benefit acts. The indemnity provisions of this section survive the tennination and/or expiration of the Agreement.
Consultant's duty to defend is separate and independent of its duty to indemnify. The duty to defend includes claims for which the City may be liable without fault or be strictly liable. The duty to defend appHes regardless of whether the issues of negligence, strict Hability, fault, default or other obHgation on the part ofthe City has been detennined. The dutyto defend applies immediately regardless ofwhether the City has paid any sums or incurred any detriment arising out of or relating (directly or indirectly) to any claims. Notwithstanding the foregoing, the City on behalf of itself reserves the right to assume the defense of any action, arbitration or proceeding against which Consultant may have ao obligation to defend pursuant to this Agreement including the right to appoint counsel of its choice, without affecting Consultant's obligation to indemnify for the cost of such defense.
Consultant shaH be Hable to the City for any loss ofor damage to City property arising from or in connection with Consultant's perfonnance hereunder.
17. Insurance Requirements. Consultant, at Conswtant's own cost and expense, shall procure and maintain, for the duration of the Agreement, the insurance coverage and policies as set forth in Exhibit "A" attached hereto.
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18. Notices. Any notice required to be given lUlder this Agreement shall be in writing and either served personally or sent prepaid, first class mail Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
Ifto City: City ofMarysville
526 CStreef
Marysville, CA 95901
Attn: City Mnager
Ifto Consultant: 371 Nevada Street, #4882
Auburn, CA 9S604
Attn: Tom Sinclair
530-878-9100
19. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations are superseded in total by this Agreement.
20. Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
21. Assignments and S~tract:iQ,g, The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience, and competence ofConsultant. Assignments of any or all rights, duties, or obligations ofthe Consultant lUlder this Agreement will be permitted only with the express prior written consent of the City. Consultant shall not subcontract any portion of the services to be performed under this Agreement without the prior written authorization of the City to which the City hereby consents with regards to suboonsultants Paul Richardson and Kathy Pease. IfCity consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of any subconsultant of Consultant. Nothing in this Agreement sb8ll create any contractual relationship between City and subconsultant nor shall it create any obligation on the part ofthe City to payor to see to the payment of any monies due to any such subconsultant other than as otherwise required by law.
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22. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach ofthe same or any other provision under this Agreement.
23. Severability. If any tenn or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect
24. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws ofthe State ofCalifornia and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Sutter.
25. Litigation Expenses and Attorney's Fees. If either pany to this Agreement commences any legal action against the other part arising out oftbis Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and reasonable attorney's fees.
26. Execution. This Agreement may be executed in several counterparts, each ofwhich shall constitute one and the same instnunent and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessmy to produce or account for more than one such counterpart.
28. Authorit) to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority, to make this Agreement and to bind each respective party.
29. Prolnbited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, peroentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation ofthis warranty, City shall have the right to rescind this Agreement without liability. For the term ofthis Agreement, no member, officer, or employee of City, during the teon ofbis or her service with City, shall have my direct Agreement for Professional ServlQ9$
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interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
30. Equal Opportunity qloyment. CoIl8Ultant represents that Consultant is an equal opportunity employer and Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, disability, ancestry, sex. or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading. demotion. transfer. recruitment or recruitment advertising. layoff, or termination.
31. Th.is agreement does not create any rights in any person or entity other than the parties hereto."
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above.
Management Advisory Services
CITY OF MAR,ir"7
By: yk By: £tt§@.1I'£ Jim7aad, City Manager om Sinclair
Title: President
APPROY~ AS Te{M:
f ,0""},-· ~ By: : ' ;, ]1f!VJ(jV1
BrantBords
TaxIDNo.: 83,..Z.Cf.3885'¢,
ATTEST:
By.~Sfi~ I lcole Moe, City Clerk
Attachments: Exhibit A - Insurance Requirements
Agreement for Professional Services
Management Advisory Services Pege90fS
Exhibit "A"
Insurance Requirements for most Contracts
!Not for Construction Contracts I
Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise: fu::nn or in connection with the perfonnance of the work hereunder and the results ofthat work by the Consultant, his agents. representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE
Coverage shaH be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CO 00 01 covering COL on an "oa;UITeIlce" basis, including products and completed operations, property damage, bodily injmy and personal & advertising injury with limits no less than 52,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projectllocation or the general aggregate limit shall be twice the required occurrence limit
2. Automobile Liability: ISO Form. Number CA 00 01 covering any auto (Code 1), or if Consultant has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than 51,000,000 per accident for bodily injury and property damage.
3. Workers' Compensatiou: if required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of00 less than 51,000,000 per accident for bodlly injmy or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the Consultant's profession, with limit no Jess than 51,000,000 per occurrence or claim. $2,000,000 aggregate.
IT the Consultant maintains higher limit:! than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant.
Other Insurance Provisions
The insurance policies are to contain., or be endorsed to contain, the following provisions:
AddiJiD"allJI.SUred Status
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the COL policy with respect to liability arising out ofwork or operations performed by or on behalfofthe Consultant including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance (at least as broad as ISO Fonn CG 20 10 11 85 or both CO 20 ] 0 and CO 20 37 forms iflater revisions used).
PrinuJry CO'Pe1'flge
For any claims related to this contract, the Consultant's in5Urante c:overage shall be primary insw'a:nce as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess ofthe Consultant's insurance and shall not contribute with it.
Notice ofCQllcelWioll
Each insurance policy required above shall provide that coverage sball not be canceled, except with DOtice to the City.
Wfl;ver ofSubrogfltitJn
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. but this provision applies regardless of whether or not the City has received a waiver ofsubrogation endorsement from the insurer.
DeducdbIes and SeIf-InSllretl Retentions
Any deductIDles or self-insured retentions must be declared to and approved by the City. The City may require the Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptflbility ofInsurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
ClflUns Made Policies
Ifany ofthe required policies provide claims-made coverage:
1. The Retroactive Date must be shown. and must be before the date of the contract or the beginning ofcontract work.
2. Insurance must be maintained and evidence ofinsurance must be provided/or at IeIl8t jive (5) years after completion ofthe contract ofwork.
3. If coverage is canceled or non-renewed, and not replaced with QIIother claims-llUllh! policyform with fl RetroflCtive Date pritJr to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion ofworle
Verijictltion ofCoverll/Ie
Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Spet:ial Risks or CirclUllStances
City reserves the right to modifY these requirements, including limits, based on the nature ofthe risk, prior experience, insurer, coverage, or other special circumstances.
FIRST AMENDMENT TO THE AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF MARYSVILLE AND MANAGEMENT ADVISORY SERVICES This First Amendment (hereinafter referred to as the "First Amendment") to the original Agreement for Professional Services between the City of Marysville and Management Advisory Services, dated July 1, 2021, (hereinafter referred to as the "Agreement") is made and entered into on May 16,2023, by and between the City ofMarysville, a public body, hereinafter referred to as the "Agency", and Management Advisory Services, hereinafter referred to as "Consultant."
WITNESSETH
A. Consultant currently provides on-call planning services on projects assigned by the City ("Work").
B. The additional Work is expected not to exceed amount of $80,000, for a total contract amount of $200,000.
NOW, THEREFORE, IT IS AGREED by and between the Agency and the Contractor as follows:
1. The Original Agreement's Scope ofWork is to be extended until December 31,2024.
2. The total cost for this contract with this amendment is not to exceed $200,000.
3. The hourly rate shall be increased from $140 per hour to $155 per hour.
4. All other provisions of the Original Agreement shall continue in full force and effect, except as modified herein.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as ofthis 16th day ofMay, 2023.
A",jl~/",')
Dated: By: -C,··itv 7'0.~e- .arysvil e, ,,:'- City Manager ----
Dated: By:
Owner, Management Advisory Services
SECOND AMENDMENT TO THE AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF MARYSVILLE AND MANAGEMENT ADVISORY SERVICES
This Second Amendment (hereinafter referred to as the "Second Amendment") to the original Agreanent for Profeggional Services between the City of Mary~vme and Management Advisory Services, dated July 1, 2021) (hereinafter referred to as the "Agreement") is made and entered into on December 5, 2023, by and between the City of Marysville. a public body, hereinafter referred to as the "Agency", and Management Advisory Services, hereinafter referred to as "Consultant."
WITNESSETH
A. Consultant currently provides on-call planning services on projects assigned by the City ("Work").
B. The additional Work is expected not to exceed amount ofSI12,800, for a total contract amount of$312,800.
NOW, THEREFORE, IT IS AGREED by and between the Agency and the Contractor as follows:
1. The Original Agreement's Scope ofWork will remain in effect until December 31,2024.
2. The total cost for this contract with this amendment is not to exceed $312,800.
3. The hourly rate shall be increased from $155 per hour to $185 per hour.
4. All other provisions ofthe Original Agreement and First Amendment to the Agreement shall continue in full force and effect, except as modified herein.
IN WITNESS WHEREOF, the undersigned have exe.cuted this Second Amendment as ofthis 5th day of December, 2023.
By:
Dated: !z..il!j?oz..5 By:
THIRD AMENDMENT TO THE AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THt! CITY OF MARYSVILLE AND MANAGEMENT ADVISORY SERVICES This Third Amendment (hcrcirutlb::r refi:rred to as the "Third Amaldmenr") to the original Agreement for Profes&ional Servic;es between the CitY ofMarysville and Management Advisory Services, dated July 1,2021, (hereinafter refCITed to as the: "'Agreement'') is made and entered into 00 Novc::mbcc t 9, ~M", by and between the City of Muysvtlle, a public body, IUM-liMiter refmed to all the ~Agen"y"', and Management Advisory Scrvicu, bereinafter referred to as "Consultant"
WITNESSETH
A. Consultant CwmltJy provides oo-caU planning services on proje&1S assigned by the City ("Work'1
B. The additional Work is cxpe:eted not to ex~ anlount ofS120,OOO, for a total conlract amount ofS432,SOO.
NOW, TIlEREFORE, IT IS AGREED by and between the Agmey and the Cuntraetor as follow;;:
I. The Original Agreement's Sc:ope ofWmk: will remain in effect until December 31. 2025.
2. The total COSI for this contract with this amendment is not to exceed 1432,800.
3. The hourly rateshaJl be increased from S185 per hour to$J90 perbour.
4. All other provisions of the Original Agreement, First Amendment, and Second Amendment to lhe Agreement shall continue in full Coree and effect, except as modified herein.
IN WITNESS WHEREOF, the undersigned have executed this Third Amendment as of this 19th day of Novcmbcr 2024 .
Dated: ... J~ By: I /
Dated: By: