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08-0611_GOVERNMENT FINANCE OFFICERS ASSOCIATION_Personal Services Agreement First Amd11,9AIRM1,11MANITAM, I'M THIS FIRST AMENDMENT TO THE PERSONAL SERVICES AGREEMENT between the CITY OF SAN JUAN CAPISTRANO ("City") and GFOA, ("Consultant") is made and entered into, to be effective the 1 st day of June, 2009, as follows: WHEREAS, the City and Consultant desire to amend the terms of the Agreement as provided hereunder, NOW, THEREFORE, in consideration of the promises and mutual covenants contained therein, City and Consultant agree to the amend Section 2 of the Agreement as follows: The term of this agreement shall be extended September 30, 2010, All other provisions of the Agreement not amended hereunder shall remain in full force and effect.. M E A BY0`4 City A tor6noy L64 CITY OF SAN JUAN CAPISTRANO By-, oe Tait City Manager ME la PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 11th day of June, 2008, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Government Finance Officers Association (hereinafter referred to.as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal for Long -Term Vision and Strategic Business Planning and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the City shall consist of those tasks as set forth in Exhibit "A - Statement of Work - Long -Term Vision and Strategic Business Planning City of San Juan Capistrano," and Exhibit "B - GFOA Long -Term Vision and Strategic Business Plan Proposal for The City of San Juan Capistrano", attached and incorporated herein by reference; the provisions in Exhibit "A" shall control any conflicts between provisions in Exhibit "A" and Exhibit "B." To the extent that there are any conflicts between the provisions described in Exhibit "A" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date and shall terminate when all services required hereunder shall be completed, no later than May 2009. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed $102,730 as set forth in Exhibit "C" attached and incorporated herein by reference. 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit invoices based upon each phase of work that has been satisfactorily completed. The amount of each phase invoice shall be as outlined in Exhibit "C". Invoices shall be paid within 30 days of the GFOA's Long-Tcy m,i Vision and Strategic Business Plan r ro.posal for The City of San Juan Capistrano City's approval of the deliverables for the related phase of work. A deliverable will be deemed "satisfactorily completed," and GFOA will invoice the City 1) upon notification of satisfaction by the City's designed representative; or 2) 30 -days subsequent to the date GFOA provided the City with the deliverable, whichever comes first. The City may request one set of revisions to a deliverable within 30 days from the date GFOA sends the first version of the deliverable. If revisions are requested, the date the phase has been satisfactorily completed will occur 30days following the date GFOA sends the revised deliverable to the City. 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. Section 4.. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting anti Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. clothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work.will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Consultant's fees. Proprietary and Confidential to GFOA GFOA's Dong -Tei w Vision and Strategic Business Plan I roposal for The_.Cig of San .Yuan Capistrano Section 7. Familiarity with. Work and/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. . Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9, Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. Copies of Work Product. At the completion of the work, Consultant shall have delivered to City at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. Proprietary and Confidential to GFOA CF OA's Long -Term Vision and Strategic Business Plan Proposal for The City of San Juan Capistrano Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information; data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. In the course of performance hereunder, Consultant may use (and may authorize the City's personnel to use) certain Consultant Intellectual Property to assist in engagement completion. The City shall not have or obtain any right or title to or interest in such Consultant Intellectual Property (or in any modifications or enhancements thereto). Consultant makes no express or implied warranties of any kind regarding the Consultant Intellectual Property. Section 13. 1ngtMni To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents, officers, employees, .subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant`s responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. Consultant's liability for any matter arising under this Agreement or from any transaction contemplated herein, including without limitation the provision of the Services, shall not exceed the actual amount paid by an insurer as a result of any claim made with respect to such matter under Consultant's insurance policies (the "Liability Cap"), The City acknowledges that the Liability Cap is a material term upon which Consultant has relied in entering into this Agreement and that Consultant would not have entered into this Agreement in the absence of such provision. Section 14. Acceptance and Release The City shall be deemed to have accepted all Services in a given Phase and the work product resulting therefrom upon the City's payment of the invoice received from Consultant in respect of the Services. Upon such acceptance, the City shall be deemed to have released the Consultant from any additional work under such Phase of the Services. Proprietary and Confidential to GFOA G 'CA's Long -Term Vision and Strategic Business Pian Proposal for The City of San Juan. Capistrano Section 15, Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 15.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 15.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired .and non -owned -vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 15.3 Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 15.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant-, premises owned, occupied or used by Consultant, or automobiles owned, leased, hired, or Proprietary and Confidential to GFOA 4 GFOA's Long -Terni Vision and Strategic Business Plan Proposal for The Citv of San Juan Capistrano borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 15.5. Errors and Omissions Coverage Throughout the term of this Agreement, Consultant shall maintain Errors and Omissions Coverage (professional liability coverage) in an amount of not less than One Million Dollars ($1,000,000). Prior to beginning any work under this Agreement, Consultant shall submit an insurance certificate to the City's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 15.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 15.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 15.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 16. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period. Section 17. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: Proprietary and Confidential to GFOA 5 GFOA's ]Lang-Te..ai Vision and Strategic Business Plan i-roposal for The City of San Juan Capistrano To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano,. CA 92675 Attn: Cindy Russell To Consultant: Government Finance Officers Association 203 N LaSalle, Suite 2700 Chicago, Illinois 60601 Attn: Anne Spray Kinney Section 18. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 19. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 20. Publications As an educational, nonprofit, professional membership association, Consultant reserves the right to publish non -confidential documents describing the results of, or created during, the Services performed under this Agreement. Consultant will not publish any item with the name of the City without obtaining the prior written consent of the City. Section 21. E,ntiLq Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Proprietary and Confidential. to GFOA 6 GFOA's Long -Te, An Vision and Strategic Business Plan Yroposal for The City of San Juan Capistrano. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: Dave Adams, City Manager GOVERNMENT FINANCE OFFICERS ASSOCIATION By: IiM-8A-* i , DjA Al 41ek,6 c i'11G APPROVED AS TO FORM: Propriemry and Confidential to GFOA