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13-0530_AMERINATIONAL COMMUNITY SERVICES, INC_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of May 2013, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and AmeriNational Community Services, Inc., a corporation organized and existing under the laws of the State of Minnesota, along with its parent company American Bank of St. Paul, located at 217 South Newton Ave., Albert Lea, MN 66007 (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant to establish escrow accounts and provide fund disbursement services for City's Owner Occupied Rehabilitation Program; 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 Consultant shall consist of establishing escrow accounts for City's Owner Occupied Rehabilitation Program loans, and providing fund disbursement services in connection with such loans, as more particularly set forth in Exhibit' A," attached and incorporated herein by reference. 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. Terre. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than June 1, 2016. Section 3. C6mpensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed $ 7,000, as set forth in Exhibit "A," attached and incorporated herein by reference. 3.2 Method of Payment. Subject to Section 3. 1, Consultant shall submit monthly invoices based on total services which have been satisfactorily completed for such monthly period. The City will pay monthly progress payments based on approved invoices in accordance with this Section. 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 the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the 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 the City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing 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. Section 7. Farniliari!y 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 2 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 ane () 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. 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. Section 13. Indemnity. 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 3 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. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. 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 Insurers in good standing with the State of California and having a minimum Best's Guide Dating of A- Class VII or better. 14.1 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. 14.2 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). 14.3 Workers' Compensation, If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Workers' Compensation Employer's Liability Insurance in the statutory amountas required by state law. 14.4 Proof of Insurance Requirements/Endorsement. 2 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 insured 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, ]eased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 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. 14.6 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.7 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 15. 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 16. 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: To City: City of San ,Juan Capistrano 32400 Paseo Adelanto 5 San Juan Capistrano, CA 92675 Attn: Ayako Rauterkus, Management Analyst To Consultant: AmeriNational Community Services, Inc. 217 South Newton Ave. Albert Lea, MN 56007 Attn: Amber Anderson, Marketing and Contracts Manager Section 17. 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 18. 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 19. Entire_ 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. [SIGNATURE PAGE FOLLOWS] 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: Maria , Pity'Clerk APPROVED AS TO FORM: Hans /an Lige , City Attorney Y= VVitbm A. Ramsey, AI P Acting Development Services Direc or CONSULTANT B: �'�/c Y c C, AmeriNational Community Services, Inc. 7 EXHIBIT A SCOPE OF WORK Fund Disbursement Services To ensure that the City's loan proceeds are used in the manner intended by the program design, AmeriNational provides a unique funds disbursement service through its parent company, American Bank, which. meets the needs of both program staff and the City's finance department. Accordingly, these entities hereinafter are referred to as "Consultant". Total loan proceeds are forwarded to Consultant and held in trust for disbursement of funds according to the City's requirements. Consultant shall deposit the funds into a custodial trust account at an FDIC insured bank. The City's finance department only needs to cut one check or initiate one EFT, and Consultant will disburse an unlimited number of checks for construction contractor stage payments, multiple equipment purchases, and/or stage disbursements of working capital loans and grants. Consultant is experienced with the multiple funding sources used in housing and economic development programs. We can prioritize the disbursement of funds from several funding sources associated with one project and will provide corresponding reports to be used as official subsidiary journals to the City's finance department. A fast turnaround of stage payments ensures delivery of checks directly to payees is made within 48 hours of request. When requests are made by 11:00 a.m., the check will be cut the same day. The funds disbursement services will be based on the following; detailed steps: 1. Opening Account: Upon loan approval, Consultant will open a borrower account that includes borrower and project information. The City will then forward loan proceeds and completed Control Instructions to Consultant. The Control Instructions should include the following information: a. Owner(s) name b. Contractor(s) c. Job site address d. Amount of funds being held e. Instructions on how funds are to be disbursed f. Original signatures of borrower/owner and City's representative 2. Disbursement Process: When requested by the City, Consultant will provide check disbursements to parties designated by the City in connection with the loans. Such disbursements are outlined in an Authorization for Payment, which includes information regarding the amount of the disbursement, the parties to be paid, signatures of City representatives authorized to make disbursements, and the borrower's authorizing signatures. Consultant will verify proper authorization to disburse funds and that AmeriNational Community Services, Inc. amounts are correct and in agreement with original Control Instructions and Authorized Signatures. All checks shall be sent to the contractors, unless otherwise directed by the City. Checks will be issued payable to the contractor, or other payees as directed by the City. Funds will be disbursed from the City's account the same day when the request is received by 11:00 a.m. Requests received after 11:00 a.m. are processed the next business day. 3. Change Orders: Change Orders are used. to make a change in the project amount or payment schedule. A Change Order may occur at any time during a project. All change orders must be approved, in writing, by the City. 4. Contingency: Additional funds may be added to a project in anticipation of unforeseen construction costs. Consultant will hold contingency at the City's request and release funds upon receipt of an Authorization for Payment. This process is subject to the City's financial policies and procedures. S. Retention. Fund: As applicable, Consultant shall hold a retention fund of at least 10%. Retention. Based on the City's policies and procedures, the retention will be paid out upon receipt of an Authorization for Payment from the City. 6. Reports and Record Keeping: Consultant will provide the City a detailed monthly Account Status Report of all transactions completed and the balances remaining in each account. Records will be maintained for all accounts and are available to the City upon request. 7. Account Close Out: After payout of all funds in an account, excess funds will be disbursed according to the City's instructions. Consultant will forward a Final CIosing Statement to the City, comprising a complete record of all transactions in one report. Consultant will also forward a copy of the report to the borrower for their records, if requested by the City. FEES: Funds Disbursement A fee of $130 per account. Full funds for the project/loan must be received by Contractor upon the Client's approval of the project/loan. These funds will be deposited into a custodial trust account at an FDIC insured bank. AmeriNationai Community Services, Inc.