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05-0419_DIEHL, EVANS & COMPANY, LLP_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this�day of &PYJ , 2005, by and between the San Juan Capistrano Community Red velopment Agency (hereinafter referred to as the "Agency") and Diehl, Evans & Company, LLP, (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, Agency desires to retain the services of Consultant regarding the Agency's proposal to Conduct Annual Auditing Services; and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, Agency and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Consultant shall consist of those tasks as set forth in Exhibit 'A" attached and incorporated herein by reference, as they relate to the Agency's and Community Housing Corporation's Financial Statements. Consultant warrants that all of its services shall be performed in a competent, professional and satisfactory manner and in accordance with the prevalent standards of its profession. Section 2. Term. This Agreement shall commence on the effective date of this Agreement and services required hereunder shall be completed by no later June 30, 2010. Section 3. Compensation. 3.1 Amount. Total compensation for the scope of services for this Project shall not exceed Forty Two Thousand Nine Hundred Eighty Eight Dollars ($42.988), as set forth in Exhibit "B," attached and incorporated herein by reference. psa.doc21/3/2005 3.2 Rate Schedule. The services shall be billed to the Agency at the hourly rate set forth in Exhibit "B," attached and incorporated herein by reference, as they relate to the Agency's and Community Housing Corporation Financial Audit. Included within the compensation are all the Consultant's ordinary office and overhead expenses incurred by it, its agents and employees, including meetings with the Agency representatives and incidental costs to perform the stipulated services. Submittals shall be in accordance with Consultant's proposal. 3.3 Method of Payment. Consultant shall submit monthly invoices based on total services which have been satisfactorily completed and specifying a percentage of projected completion for approval by the Agency. The Agency will pay monthly progress payments based on approved invoices in accordance with this Section. For extra work not part of this Agreement, a written authorization from Agency is required prior to Consultant undertaking any extra work. 3.4 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 Agency. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of Agency, 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 Agency to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the Agency. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the Agency. If Consultant is permitted to subcontract any part of this Agreement by Agency, Consultant shall be responsible to Agency 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 Agency. All persons engaged in the work will be considered employees of Consultant. Agency will deal directly with and will make all payments to Consultant. psa.doc21/3/2005 J_ _ Section 6. Chances to Scope of Work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the Agency, 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. Familiarity with Work. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; and (2) it understands the difficulties and restrictions of the work under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by Agency, it shall immediately inform Agency of this and shall not proceed with further work under this Agreement until written instructions are received from the Agency. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 8. 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 contract period, Consultant shall have delivered to Agency at least one (1) copy of any final reports containing Consultant's findings, conclusions, and recommendations with any support documentation. All reports submitted to the Agency shall be in reproducible format. All services to be rendered hereunder shall be subject to the direction and approval of the Agency. psa.doc21/3/2005 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 Agency. All such reports, information, data, and exhibits shall be the property of the Agency and shall be delivered to the Agency upon demand without additional costs or expense to the Agency. The Agency acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. Consultant agrees to protect, defend and hold harmless Agency, its elected and appointed officials 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 damage to property or interference with use of property and for errors and omissions committed by Consultant arising out of or in connection with the work, operation or activities of Consultant, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Section 14. Insurance. 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. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 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 the following minimum amounts: psa.doc21/3/2005 $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period 14.3 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. 14.4 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 to the Consultant's general liability and umbrella liability policies to the City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 14.5 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 Clerk of the Board's office for certification that the insurance requirements of this Agreement have been satisfied. 14.6 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 Agency, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.7 Terns of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. psa.doc21/3/2005 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the Agency has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. Agency and Consultant shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to the other party In addition, this Agreement may be terminated 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 San Juan Capistrano, CA 92675 Attn: Director of Administrative Services To Consultant: Diehl, Evans & Company, LLP 2121 Alton Parkway, Suite 100 Irvine, California 92606-0610 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 attomeys' 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"). psa.doc2l/3/2005 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: SAN JU APIST NO COMMUNITY RED ELO ME ENCY By: Joe to, firman CONSU TANT By: R. Monahan, Agency Secretary AleP OVED AS TO FORM: John R. ShaW, Agency Counsel psa.doc21/3/2005