1 PROFESSIONAL SERVICES AGREEMENT
This agreement (“Agreement”) is made as of August 8th, 2023, by and between the City of Commerce, a municipal corporation ("City") and KNN Public Finance LLC (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.”
R E C I T A L S
WHEREAS, City desires to utilize the services of Consultant as an independent contractor to [insert brief description of work] as set forth in the Scope of Services attached hereto as Exhibit A; and
WHEREAS, Consultant represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education and expertise of its principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants and conditions herein contained, the parties hereto agree as follows:
1. Company's Scope of Services. The nature and scope of the specific services to be performed by Consultant are as described in Exhibit A.
2. Term of Agreement. This Agreement shall commence on [Insert month and date], [Insert year] (the “Commencement Date”) and shall remain and continue in effect until tasks described in Exhibit A are completed, but in no event later than [Insert Date], unless sooner terminated pursuant to the provisions of this Agreement.
3. Compensation.
A. City agrees to compensate Consultant for services under this Agreement in compliance with the schedule set forth in Exhibit A. Consultant shall submit proper monthly invoices in the form and manner specified by City. Each invoice shall include a monthly breakdown of all monthly services performed together with the hours spent on each service. Consultant shall maintain appropriate and necessary documentation supporting the monthly invoices detailing the type of service provided. It shall be available for review by the City at all reasonable times upon request.
B. Total payment to Consultant pursuant to this Agreement shall not exceed $22,000.
C. If at the request of the City, Consultant is required to incur out of pocket expenses (including but not limited to, out-of-town travel and lodging) which are above and beyond the ordinary expenses associated with performance of this Agreement, Consultant shall be entitled to reimbursement of such expenses. 2 Consultant shall only be reimbursed for those expenses which: (I) appear on Consultant’s monthly invoices; (II) are accompanied by a copy of the City’s written authorization for Consultant to incur such expenses; and (III) receipts documenting such expenses.
4. General Terms and Conditions. The General Terms and Conditions set forth in Exhibit B are incorporated as part of this Agreement. In the event of any inconsistency between the General Terms and Conditions and any other exhibit to this Agreement, the General Terms and Conditions shall control unless it is clear from the context that both parties intend the provisions of the other exhibit(s) to control.
5. Addresses.
City of Commerce
City of Commerce
2535 Commerce Way
Commerce, CA 90040
Attn: Edgar P. Cisneros, City Manager
Company
KNN Public Finance, LLC
2054 University Avenue, Suite 300
Berkeley, CA 94704
Attn: Melissa Shick, Director
6. Exhibits. All exhibits referred to in this Agreement are listed here and are incorporated and made part of this Agreement by this reference.
Exhibit A Scope of Services and Compensation Schedule
Exhibit B General Terms and Conditions
Exhibit C Special Provision Terms and Conditions
Exhibit D Federal Certifications Forms
Exhibit E Disclosures Pursuant to MSRB Rules G-42 and G-10
SIGNATURES ON FOLLOWING PAGE
3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below.
CITY
CITY OF COMMERCE
By: ______________________________ ______________________ Hugo A. Argumedo, Mayor Date
CONSULTANT
KNN Public Finance, LLC
By: _______________________________ ________________________ Melissa Shick, Director Date
ATTEST:
By: ______________________________ ________________________ Lena Shumway, City Clerk Date
APPROVED AS TO FORM:
By: ______________________________ ________________________ Noel Tapia, City Attorney Date
1 EXHIBIT A
SCOPE OF SERVICES AND COMPENSATION SCHEDULE
General Services
The Consultant shall perform all the duties and services specifically set forth herein and shall provide such other services as the City deems necessary or advisable or are reasonable and necessary to accomplish the intent of the Agreement in the manner consistent with the standards and practices of professional financial advisors. The Consultant will service as an independent registered municipal advisor in a fiduciary capacity within the meaning of Section 15Bal-1(d)(3)(vi) of the Securities Exchange Act of 1934.
Scope of Services
The Consultant shall provide project-related as needed professional municipal financial advisor services to the City of Commerce (the “City” or “Commerce”) in connection with the delivery of planning and financing services for the Zero-Emission Bus Operations, Maintenance, and Administration Facility project (the “Project”). The scope of services includes, but are not limited to, the following:
1) Devise a Plan of Finance Approach
2) Develop Credit and Security Structure
3) Prepare Financial Models
a. Create and maintain cash flow models
4) Evaluate Borrowing Approaches
a. Municipal Bonds
b. State Loan Program
c. Federal Loan Programs
d. Direct Borrowings
5) Participate in conference calls and/or meetings with City officials and staff, financing team participants, and others as needed, providing “valuer added” advice and input of subjects discussed.
6) Provide any other municipal advisory services deemed necessary and appropriate in advancing financing needs for the Project.
General Roles and Responsibilities
With respect to all services provided to the City, the Consultant will fulfil the following operational roles and responsibilities. The consultant will serve the City as a Municipal Advisor. The Municipal Advisor is subject to a fiduciary duty to the City. Fiduciary duty is generally understood to encompass a duty of loyalty and a duty of care to the public agency. The consultant is also required to disclose conflicts on interest that might impair its ability to fulfil its duty of loyalty and not to undertake engagements if it cannot manage 2 those conflicts. The consultant shall notify the City when conflicts arise. Additionally, the Consultant will follow MSRB-G-42 (Specified in Exhibit E) in fulfilling its responsibilities to the City.
Statements of Progress
The Consultant shall submit detailed statements of progress for services performed for the City on a monthly basis. All statements should include the names, titles, and rates of pay for the personnel who have performed services on behalf of the City, state of services, the hours worked, and the details of reasonable and necessary out-of-pocket expenses.
Compensation
Compensation for services described in the Agreement has been agreed upon by all parties.
Title Hourly Rates
David Brodsly Managing Director $355
Melissa Shick Director $335
Nedko Nedev Vice President $315
Tim Frydendall Associate $295
The Consultant was identified through a RFQ selection process. The cost of the above references municipal advisory services will not exceed $22,000 for professional services, and expenses as described below.
The fees payable to the Consultant for transaction services will be based upon fixed transaction fees as proposed through the RFQ selection process. The scope of work and compensation structure specific to transaction services will be set forth in an amendment to this Agreement between the City and Consultant, in advance of the transaction.
Transaction fees are contingent on the successful closing of the financing and can be funded, along with other customary costs of issuance, through proceeds of the transaction/debt issuance.
Expenses
1) In addition to the fees specified above, the Consultant shall be paid, contingent on the payment of fees, their reasonable and necessary out-of-pocket expenses.
Additional fees and out-of-pocket expenses under this Agreement shall not exceed $2,000.
2) The Consultant shall provide documentation for all reasonable and necessary expenses, including any receipts for all items.
3) In no event shall the total amount of reimbursement to Consultant for expenses exceed the amounts above.
3 4) Discuss with the Director of Transportation for preapproval of any travel.
Principal
It is mutually agreed that Melissa Shick, for the Consultant, will serve as the lead advisor responsible for the delivery of the described services, and will be assisted by David Brodsly, who will be involved in the delivery of the core scope of services requirements as necessary with minimal duplication in services provided. Nedko Nedev and Tim Frydendall may also assist with quantitative support including program structuring and additional market intelligence as needed. While it is understood that portions of the described services may be delegated to other members of the team, the City reserves the right to request removal of any of the Consultant’s employee(s) or their agent(s) at the sole discretion of the City. The Consultant will not use more than one staff member for the same specific service, including meetings or conference calls, without the City’s approval. The Consultant may use the minimum number of staff for the engagement consistent with good professional practices and avoid duplication of work after consulting with and obtaining approval by the City.
Miscellaneous
Most financial advisory services from the Consultant can be provided to the City orally or through email. The City will inform the Consultant if any formal communication, PowerPoint presentations, memos or reports are to be drafted. 4 EXHIBIT B
GENERAL TERMS AND CONDITIONS
1. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of the City of Commerce or otherwise act on behalf of Commerce as an agent.
Neither the City of Commerce nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement.
Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City of Commerce.
B. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interests asserted against City by reason of the independent Consultant relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent status of Consultant and the audit in any way fails to sustain the validity of a wholly independent Consultant relationship between City and Consultant, then Consultant agrees to reimburse City for all costs, including accounting and attorney's fees, arising out of such audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant’s employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section 1.
D. Consultant represents to the City, and City relies on Consultant’s representations, that Consultant shall serve solely in the capacity of an independent contractor to the City. Neither the City nor any of its agents will have control over the conduct of Consultant or any of Consultant’s employees, except as otherwise set forth in the Agreement. Consultant may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. The City has no duty, obligation, or responsibility to the Consultant’s agents or employees, including the Affordable Care Act coverage requirements. Consultant is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to Consultant’s agents and employees. Consultant warrants and represents that the City will not be responsible and will not be held liable for issues related to Consultant’s status as an independent contractor, including Consultant’s failure to comply with Consultant’s duties, obligations, and responsibilities under the Affordable Care Act.
Consultant further agrees to defend, indemnify, and hold the City harmless for any and 5 all taxes, claims, and penalties against the City related to Consultant’s obligations under the Affordable Care Act.
2. Standard of Performance
Consultant shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the City Manager or his/her designee. No additional or different tasks or services shall be performed by Consultant other than those specified in Exhibit A.
3. Indemnification.
A. Consultant is skilled in the professional calling necessary to perform the services and duties agreed to be performed under this Agreement, and City is relying upon the skill and knowledge of Consultant to perform said services and duties.
B. City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "Indemnities") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, defend, protect and hold harmless Indemnities from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims"), which Indemnities may suffer or incur or to which Indemnities may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or other loss occurring as a result of or allegedly caused by Consultant’s performance of or failure to perform any services under this Agreement or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, subcontractor, sub consultant or employees, committed in performing any of the services under this Agreement. Notwithstanding the foregoing, the provisions of this subsection shall not apply to Claims occurring as a result of the City’s sole negligence or willful acts or omissions.
C. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, sub consultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required in this Section, Consultant agrees to be fully responsible according to the terms of this Section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on City and will in no way serve as a waiver of any rights hereunder. This obligation to indemnify and defend Indemnities as set forth herein shall survive the termination of this Agreement and is in addition to any rights which City may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this Agreement or any additional insured endorsements which may extend to City.
6 4. Insurance.
A. Without limiting Consultant’s indemnification of Indemnities pursuant to Section 3 of this Agreement, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement the types and amounts of insurance as described below:
(I) Consultant shall maintain Commercial General Liability Insurance with coverage at least as broad as Insurance Services Office Commercial General Liability Form CG 00 01 in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(II) Consultant shall maintain Business Auto Coverage on ISO Business Auto Coverage Form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(III) Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance with on a state approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for all covered losses; (IV) Consultant shall maintain Professional Liability or Errors and Omissions Insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate.
Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
B. City, its officers, officials, employees and volunteers shall be named as additional insureds on the policy(ies) as to commercial general liability and automotive liability.
C. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved 7 by the City’s Risk Manager.
D. All insurance policies shall provide that the insurance coverage shall not be non-renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to CITY via certified mail, return receipt requested, addressed to “Director of Human Resources & Risk Management,” City of Commerce, 2535 Commerce Way, Commerce, California, 90040. Consultant agrees that it will not cancel, reduce or otherwise modify said insurance coverage.
E. Consultant shall submit to City (I) insurance certificates indicating compliance with the minimum worker's compensation insurance requirements above, and (II) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to beginning of performance under this Agreement. Endorsements shall be executed on City’s appropriate standard forms entitled "Additional Insured Endorsement".
F. Consultant’s insurance shall be primary as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of Consultant’s insurance and shall not contribute with it.
G. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, and such insurance is available at a reasonable cost. City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be deemed an obligation of Consultant’s and the cost of such insurance may be deducted, at the option of City, from payments due Consultant.
5. Release of Information/Confidentiality.
A. Consultant in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. Consultant’s covenant under this section shall survive the termination of this Agreement.
8 B. Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response
6. Ownership of Work Product.
A. Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by the City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identi¬fied and readily accessible. Consultant shall provide free access to the representatives of the City or its designees at reasonable times to such books and records; shall give the City the right to examine and audit said books and records; shall permit the City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment.
B. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files, Consultant shall make available to the City, at the Consultant's office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
7. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it.
Furthermore, Consultant shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement. 9 B. Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by Consultant’s covenants under this section shall survive the termination of this Agreement.
8. Termination. Notwithstanding any other provision, this Agreement may be duly terminated at any time by the City at its sole discretion with or without cause by serving upon the consultant at least ten (10) days prior written notice (“Notice of Termination”).
Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. Unless expressly agreed upon in writing by the City, the City shall not be obligated to pay for any services rendered nor any costs or expenses paid or incurred after the date of termination. The effective date of termination shall be upon the date specified in the written Notice of Termination.
Consultant agrees that in the event of such termination, Consultant must refund the City its prorated share, except for services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written Notice of Termination, Consultant shall discontinue performing services, preserve the product of the services and upon payment for services, turn over to City the product of the services in accordance with written instructions of City.
In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City.
9. Personnel. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services.
Consultant reserves the right to determine the assignment of its own employees to the performance of Consultant’s services under this Agreement, but City reserves the right, for good cause, to require Consultant to exclude any employee from performing services on City's premises.
10. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
10 B. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials.
11. Assignment. Consultant shall not assign or transfer any interest in this Agreement nor the performance of any of Consultant obligations hereunder, without the prior written consent of City, and any attempt by Consultant to assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect.
12. Performance Evaluation. For any Agreement in effect for twelve months or longer, the City Manager may require a written annual administrative performance evaluation within ninety (90) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement. The work product required by this Agreement shall be utilized as the basis for review, and any comments or complaints received by City during the review period, either orally or in writing, shall be considered. City shall meet with Consultant prior to preparing the written report. If any noncompliance with the Agreement is found, City may direct Consultant to correct the inadequacies, or, in the alternative, may terminate this Agreement as provided herein.
13. Compliance with Laws. Consultant shall keep itself informed of State, Federal and Local laws, ordinances, codes and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. Consultant shall at all times comply with such laws, ordinances, codes and regulations. The City, its officers and employees shall not be liable at law or in equity occasioned by failure of Consultant to comply with this Section.
14. Licenses. At all times during the term of this Agreement, Consultant shall have in full force and effect all licenses (including a City business license) required of it by law for performance of the services hereunder.
15. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.
16. Attorney's Fees. In the event that either party to this Agreement shall commence 11 any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, including costs of expert witnesses and Consultant.
17. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during Consultant regular business hours or by facsimile before or during Consultant regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section.
18. Governing Law. This Agreement shall be construed and interpreted both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California. However, the Parties may agree to submit any dispute to non-binding arbitration.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument.
20. Severability. If any provision or any part of any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement shall remain in full force and effect.
21. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. Amendments on behalf of the City will only be valid if signed by the Mayor and attested by the City Clerk.
22. Authority. The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.
23. Force Majeure. A Party’s performance of any obligation under this Agreement shall be suspended if, and to the extent that, the Party is unable to perform because of any event of Force Majeure. In any such event, the Party unable to perform shall be required to resume performance of its obligations under this Agreement upon the termination of the event or cause that excused performance hereunder. “Force Majeure” 12 herein means an event which is beyond the reasonable control of a Party, including without limitation, (a) acts of God including flood, fire, earthquake, hurricane or explosion, pandemic; (b) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (c) government order or law that prevents either Party from performing its obligations as set forth in this Agreement; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) action by any governmental authority that prevents either Party from performing its obligations as set forth in this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances, other than those involving the affected parties employees; (h) shortage of adequate power or transportation facilities.
Neither Party shall be liable for any delay or default in, or failure of, performance resulting from or arising out of any Force Majeure event, and no such delay, default in, or failure of performance shall constitute a breach by either Party hereunder. Where a Force Majeure event gives rise to a failure or delay in either Party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure event. A Party who becomes aware of a Force Majeure event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will forthwith notify the other and inform the other of the period for which it is estimated that such failure or delay will continue. The affected Party shall take reasonable steps to mitigate the effects of the Force Majeure event.
13 EXHIBIT C – SPECIAL PROVISIONS TERMS AND CONDITIONS
1.0 FTA Funding Requirement
This project may be financed in part by the Federal Transit Administration (FTA).
Accordingly, federal requirements apply to this Agreement, and if those requirements change, then the changed requirements shall apply to the project as required. City and the Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Agreement, absent the express written consent by the Federal Government, the Federal Government is not a party to this Agreement and shall not be subject to any obligations or liabilities to City, Contractor, or any other party pertaining to any matter resulting from the underlying Agreement. Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified except to identify the subcontractor who will be subject to its provisions.
City and the Contractor recognize that the requirements of the Program Fraud Civil Remedies Act of 1986, as amended, 49 USC. 3801 et seq. and US DOT regulations, "ProgramFraud Civil Remedies, " 49 CFR Part 31, apply to actions pertaining to this Agreement. City and Contractor also agree to comply with the requirements of 49 USC. 5323 (h) (2) by refraining from the use of any FTA assistance to support procurements using exclusionary or discriminatory specifications. City also agrees to refrain from using state or local geographic restrictions unless otherwise allowed by FTA.
Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified except to identify the subcontractor whowill be subject to its provisions.
2.0 Federal Changes
Contractor shall at all times comply with all applicable FTA regulations, policies, procedures, and directives, including without limitation those listed directly or by reference in the current Master Agreement between City and FTA, as amended.
Contractor's failure to so comply shall constitute a breach of contract.
3.0 Maintenance, Audit, and Inspection of Records
Contractor shall permit the authorized representatives of City, the United States Department of Transportation (DOT), and the Comptroller General of the United States to inspect, audit, make copies and transcriptions of all work, materials, payrolls, and other data andrecords of the Contractor relating to its performance under the Agreement. The contractor shall maintain all such records for three (3) years after City makes final payment under this Agreement.
4.0 Disadvantage Business Enterprises
14 City has not established a Disadvantaged Business Enterprise (DBE) Availability Advisory Percentage for this Agreement. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs." Bidders who obtain DBE participation on this Contract will assist the California Department of Transportation in meeting its federally mandated statewide overall DBE goal. DBE and other small businesses, as defined in Title 49 CFR, Part 26, are encouraged to participate in the performance of agreements financed in whole or in part with federal funds. Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Contractor shall carry out the applicable requirements of 49 CFR, Part 26 in the award and administration of US Department of Transportation assisted contracts. Failure by the Contractor to carry out these requirements isa material breach of this Agreement, which may result in the termination of this Agreement or such other remedy, as the recipient deems appropriate. Any subcontract entered into as a result of this Agreement shall contain all of the provision of this section.
4.1 DBE General Conditions
Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOTassisted contracts. Failure by Contractor to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy, as the recipient deems appropriate.
4.2 The General Conditions shall include the following provisions:
"Diversity Program for Contracts." City, recipient of federal financial assistance from the FTA, is committed to and has adopted a Diversity Program for Contracts in accordance with federal regulations 49 CFR Part 26, issued by US DOT.
City's policy is to ensure nondiscrimination in the award and administration of U.S.
DOT-assisted contracts and create a level playing field on which Disadvantaged Business Enterprises (DBEs) can compete fairly for contracts and subcontracts relating to City's construction, procurement and professional services activities. To this end, City has developed procedures to remove barriers to DBE participation in the bidding and award process and to assist DBEs to develop and compete successfully outside of the DBE program. In connection with the performance of this Agreement, Contractor will cooperate with City in meeting these commitments and objectives Pursuant to 49 CFR §
26.13, and as a material term of any agreement with City, Contractor hereby makes the following assurance and agrees to include this assurancein any agreements it makes with Subcontractors in the performance of this Agreement:
Contractor or Subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Contractor shall carry out 15 applicable requirements of 49 CFR Part 26 in the award and administration of U.S.
DOT- assisted contracts. Failure by Contractor or Subcontractor to carry out these requirements is a material breach of this Contract, which may result in the termination of this Agreement or such other remedy, as City deems appropriate.
4.2.1 Special Requirements
"Prompt Payment to Subcontractors" - The prime Contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of the Agreement no later than 30 days from the receipt of each payment the prime Contractor receives from City. The prime Contractor agrees further to return retainage payments to each subcontractor within 30 days after the subcontractor's work is satisfactorily completed.
Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of City. This clause applies to both DBE and non-DBE subcontractors.
5.0 Title VI Compliance
Contractor shall comply with all requirements of the Civil Rights Act of 1964, as amended; the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation Title 49, Code of Federal Regulations, Part 21, as amended; andany implementing requirements of FTA. All of these requirements are incorporated by reference and made a part of this Agreement.
Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary, to identify the affected parties.
5.1 Equal Employment Opportunity
Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, gender, disability, age, national origin, ancestry, marital status, pregnancy, medical condition, or sexual orientation.
Contractor shall take affirmative actionto insure that applicants are employed, and the employees are treated during their employment, without regard to their race, color, religion, gender, disability, age, national origin, ancestry, marital status, pregnancy, medical condition, or sexual orientation. Such actions shallinclude, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Contractor shall comply withany implementing regulations FTA may issue.
5.2 Access Requirements for Individuals with Disabilities In accordance with Section 102 of the Americans with Disabilities Act, as amended, 42 USC. 12112, Contractor agrees that it will comply with the requirements of US Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630. These 16 requirements pertain to employment of persons with disabilities. In addition, Contractor agrees to comply with any implementing requirements FTA may issue.
6.0 Energy Conservation Requirements
Where applicable, Contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.
7.0 Environmental Requirements
Where applicable, Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended 33 USC. 1251 et seq. Contractor agrees to report each violation to City and understands and agrees that City will report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. Contractor also agrees to include these requirements in each subcontract exceeding $25,000 financed in whole or in part with Federal assistance providedby FTA. Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended 42 USC. 7401 et seq. Contractor agrees to report each violation to City and understands and agrees that City will report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.Contractor also agrees to include these requirements in each subcontract exceeding $25,000 financed in whole or in partwith Federal assistance provided by FTA.
8.0 Certification Regarding Debarment and Suspension
Contractor shall submit documentation showing that neither Contractor norits principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any federal departmentor agency. For this purpose, Contractor must complete and Execute the form entitled "Certification Regarding Debarment, Suspension, and Other Responsibility Matters," found in Exhibit D. Contractor also agrees to include this provision in any subcontract exceeding $25,000 and forward the certification to City.
9.0 Non-Collusion Affidavit
Proposer will be required to submit a Non-Collusion Affidavit.
10.0 Penalty for Collusion
If it is found that the person, firm or corporation to whom a contract has been awarded has colluded with any other party or parties, then the Agreement shall be null and void and Contractor shall be liable to City for all loss or damage which City may suffer. City may advertise for a new Contract for required services. 17 11.0 Restrictions on Lobbying
Per federal regulations, Contractors who apply or propose for an award of $25,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officerof employee of City, grant or any other award covered by 31 USC. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal Contract, grant or award covered by 31 USC. 1352. Such disclosures are forwarded from tierto tier up to City. Each Proposer is required to review the above referenced regulations and complete and submit a Certification of Compliance with Federal Lobbying Regulations. Pursuant to federal regulations, the Proposer is required to have all subcontractors (at any tier)providing more than $25,000 towards Contract also complete with this Certification. Contractor is advised to review the specific Buy America requirements contained in the requirements at 49 CFR Part 661.
12.0 Rights Upon Termination
Contractor shall be paid its costs,including contract closeout costs, and profit on work performed up to the time of termination. Contractor shall promptly submit its termination claim to the City to be paid. If Contractor has any property in its possession belonging to City, Contractor will account for the same, and dispose of it in the manner City directs.
12.1 Termination for Default/Breach
If Contractor fails to perform the services within the time specified in this Agreement or any extension or if Contractor fails to comply with any other provisions of this Agreement, City may terminate this Agreement for default. City shall terminate by delivering to the Contractor a Notice of Termination specifying the default.
Contractor will only be paid the contract price for work services delivered and accepted, or services performed in accordance with the manner or performance required in this Agreement.
12.2 Termination for Force Majeure
City may terminate this Agreement upon written notice from the Contractor for unforeseen causes beyond the control and without the fault or negligence of Contractor. Such causes are those of acts of God, acts of the public enemy, governmental acts, fires and epidemics whose causes irrecoverably disrupt or render impossible Contractor'sperformance. An "act of God" shall mean an earthquake, flood, cyclone, or other cataclysmic phenomenon of nature beyond the power of Contractor to foresee or make preparation in defense against.
18 12.3 Opportunity to Cure
City in its sole discretion may, in the case of a termination for breach or default, allow Contractor within ten (10) calendar days in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If Contractor fails to remedy to City's satisfaction the breach or default, within ten (10) calendar days after receipt by Contractor of written notice from City, City shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude City from also pursuing all available remedies against Contractor and its sureties for said breach or default.
12.4 Waiver of Remedies for any Breach
In the event that City elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Agreement, such waiver by City shall not limit City's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Agreement.
13.0 Dispute Resolution
Disputes arising in the performance of this Agreement which are not resolved by Agreement ofthe parties shall be decided in writing by the City Manager. This decision shall be final and conclusive unless within ten (10) calendar days from the date of receipt of its copy, Contractor mails or otherwise furnishes a written appeal to the City Manager. In connectionwith any such appeal, Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the City Manager shall be binding upon the Contractor and Contractor shall abide by the decision unless determined otherwise by a court of competent jurisdiction or an arbitrator appointed by both parties. Contractor shall continue performance under this Agreement while matters in dispute are being resolved.
14. Veterans Employment 49 U.S.C. 5325 (k)
A. To the extent practicable, Contractor agrees that it:
1. Will give a hiring preference to veterans (as defined in 5 U.S.C. § 2108), who have the skills and abilities required to perform construction work required under a third-party contract in connection with a capital project supported with funds made available or appropriated for 49 U.S.C. chapter 53, and
2. Will not require an employer to give a preference to any veteran over any equally qualified applicant who is a member of any racial or ethnic minority, female, an individual with a disability, or a former employee, and B. Contractor also assures that its sub-contractor will:
19 1. Will give a hiring preference to veterans (as defined in 5 U.S.C. § 2108),who have the skills and abilities required to perform construction work required under a third-party contract in connection with a capital project supported with funds made available or appropriated for 49 U.S.C. chapter 53, to the extent practicable, and
2. Will not require an employer to give a preference to any veteran over any equally qualified applicant who is a member of any racial or ethnic minority, female, an individual with a disability, or a former employee.
Exhibit D- Federal Certifications Form
The following FTA and CITY forms/certifications are to be executed by each Proposer and enclosed with the Quotation. Quotations received without these forms/certifications completed will not be considered.
Contact the City of Commerce Purchasing Manager by mail, Telephone, or Fax, for questions regarding forms and/or certifications.
City of Commerce
Attn: Purchasing Division, Care of City Clerk's Office
2535 Commerce Way
Commerce, CA 90040
The person signing the certification shall state his address and official capacity.
IMPORTANT NOTICE QUOTATIONS DOCUMENTS TO BE RETURNED
To be considered responsive, the following forms, certificates, and/or statements must be completed and submitted on or before the Submittal Deadline. Compliance with these requirements is mandatory for contract award.
a. Application for DBE and/or California Unified Certification DBE status Certification (if applicable)
b. Certificate of Primary Contractor Regarding Debarment c. Lobbying Certificate
d. CITY Bidders/Proposers list form
e. Non-Collusion Certificate
f. Proposer's Statement Regarding Insurance Coverage
g. Worker's Compensation Insurance Certificate
h. Experience Statement
i. Proposer information sheet(s)
j. Certificate of Compliance (Attachment B)
k. Sample Contract (Proposer to provide written exception(s) to any of the terms and/or conditions of sample contract and return Quotation submittal.) Failures to complete, sign (where required), and return the above Quotation documents with your Quotation may render it non-responsive.
These Certificates Must Be Included in the Quotation For the Submission to be Valid.
Please see the Professional Services contract type:
Type of Contract
Procurement (Goods)Procurement (Rolling Stock)
Construction
Transit Operations
Architectural andEngineeringProfessionalServices
FTA Required Certifications
1 Lobbying X X X X X
2 Buy America X X X
3 DBE X X X X X X
4 Certification of Lower-Tier Participants
(Subcontractors)
X X X X X
X
Regarding Debarment, Suspension X
5 Certification of Primary Contractor Regarding
Debarment, Suspension X X X X X X
These Certificates Must Be Included in the Quotation For the Submission to be Valid If a vendor wants to qualify for Disadvantage Business Enterprise (DBE) status, the California Unified Certification Program (UCP) web address is http://www.dot.ca.gov/hq/bep/ucp.htm. If you are a DBE, please provide a copy of your UCP certificate.
AFFIDAVIT FOR DISADVANTAGED BUSINESS ENTERPRISE
STATE OF :
COUNTY (CITY) OF :
I HEREBY DECLARE AND AFFIRM THAT I AM THE (Title)
and duly authorized representative of (Name of
Corporation/firm) whose address is _________.
I hereby declare and affirm that my firm is a certified Disadvantaged Business Enterprise or Women-Owned Business Enterprise as defined and approved by California Unified Certification Program. The above, named firm will provide CITY with a copy of the California Unified Certification Program document affirming their DBE status.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT
THE CONTENTS OF THE FOREGOING DOCUMENT ARE TRUE AND CORRECT AND
THAT I AM AUTHORIZED, ON BEHALF OF THE ABOVE FIRM, TO MAKE THIS AFFIDAVIT.
(AFFIANT) (DATE)
STATE OF :
COUNTY (CITY) OF :
On this day of , 20 ,
CERTIFICATION OF PRIMARY CONTRACTOR REGARDING DEBARMENT,
SUSPENSION, AND OTHER RESPONSIBILITY MATTERS
The Primary Contractor certifies to the best of its
knowledge and belief, that it and its principals:
1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency.
2. Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or Local) transaction or Contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or Local) with the commission of any of the offenses enumerated in paragraph (2) of this certification; and
4. Have not within a three (3) year period preceding this application/proposal had one (1) or more public transactions (Federal, State, or Local) terminated for cause or default.
If the above-named Primary Contractor cannot certify any of the statements in this certification, the Primary Contractor shall attach an explanation to this certification.
The Primary Contractor certifies or affirms the
truthfulness and accuracy of the contents of the statements submitted on or with this certification and understands that the provision of 31 USC Section 3801 et seq. is applicable thereto.
Signature and Title of Authorized Official
Notary Public Name (Printed)
Notary Public Signature County of Expiration Date
CERTIFICATION OF LOWER-TIER PARTICIPANTS REGARDING DEBARMENT,
SUSPENSION, AND OTHER INELIGIBILITY AND VOLUNTARY EXCLUSION The Lower-Tier Participant (potential sub-grantee or sub-recipient under the FTA project, potential third party contractor, or potential subcontractor under a major third party contract), "Contractor Company Name" (Contractor/Sub-Contractor), certifies, by submission of this bid or proposal, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
(If the Lower-Tier Participant [potential sub-grantee or sub-recipient under the FTA project, potential third party contractor, or potential subcontractor under a major third party contract] is unable to certify to any of the statements in this certification, such participant shall attach an explanation to this bid or proposal.)
THE LOWER-TIER PARTICIPANT (POTENTIAL SUB-GRANTEE OR SUB-RECIPIENT UNDER
AN FTA PROJECT, POTENTIAL THIRD PARTY CONTRACTOR, OR POTENTIAL SUBCONTRACTOR UNDER A MAJOR THIRD PARTY CONTRACT) "(Sub-)Contractor Company Name" (Contractor/Sub-Contractor), CERTIFIES OR AFFIRMS THE
TRUTHFULNESS AND ACCURACY OF THE CONTENTS OF THE STATEMENTS
SUBMITTED ON OR WITH THIS CERTIFICATION AND UNDERSTANDS THAT THE PROVISIONS OF 31 USC SECTIONS 3801 ET SEQ. ARE APPLICABLE THERETO.
Notice to Bidders: This form must be completed by the bidder/proposal (Contractor) and each subcontractor which the Contractor intends to employ in the work associated with this FTA project.
"Company Official's Signature Here" "Insert Date Here"
Signature of Company Official, Partner, or Sole Proprietor Date "Company Official's Title Here"
Official's Title
Subscribed and sworn to before me this " _" of " , 2023. "Notary Signature"
Notary Public
(SEAL)
"Notary Stamp Here"
CERTIFICATION OF RESTRICTIONS ON LOBBYING
I, ,hereby certify on
(Name) (Title)
behalf of that:
(Firm)
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative Agreement.
(2) Suppose any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal Contract, grant, loan, or cooperative Agreement. In that case, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
This certification is a material representation of fact upon which reliance is placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, US Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Dated
(Name)
(Title)
(Firm)
CITY of Commerce - BIDDERS/PROPOSERS LIST
All bidders/proposers must provide the following information for all DBE and non-DBE contractors who provided a Quotation, bid, or quote. This information is also required from the proposed prime Contractor and must be submitted with their bid/Quotation.
The CITY of Commerce (CITY) will use this information to maintain and update a "Bidders/Proposers" List to assist in the overall annual goal DBE goal-setting process.
To the extent permitted by law, all information submitted will be held in strict confidence and will not be shared without your consent.
Firm
Name
Address:
Phone: Fax:
Contact Person: No. of Yrs. In Business
Is the firm currently certified as a DBE by California Unified Certification Program? No Yes Certification #
Type of work/services/materials provided by the firm?
What were your firm's Gross Annual receipts for last year? Less than $1 million
Less than $5 million
Less than $10 million
Less than $15 million
More than $15 million
This form can be duplicated to report all bidder's (DBEs and non-DBEs) information if necessary. 2054 University Avenue, Suite 300 │ Berkeley, CA 94704 │ Main 510-839-8200 5901 West Century Boulevard, Suite 750 │ Los Angeles, CA 90045 │ Main 310-348-2901 A Limited Liability Company
EXHIBIT E – KNN Disclosures Pursuant to MSRB Rules G-42 and G-10 Pursuant to Municipal Securities Rulemaking Board (“MSRB”) Rule G-42, on Duties of Non-Solicitor Municipal Advisors, Municipal Advisors are required to make certain written disclosures to clients which include, amongst other things, Conflicts of Interest and any Legal or Disciplinary events of KNN Public Finance, LLC (“KNN Public Finance”) and its associated persons.
Conflicts of Interest
Other Municipal Advisor Relationships. KNN serves a wide variety of other clients that may from time to time have interests that could have a direct or indirect impact on the interests of another KNN client. For example, KNN serves as municipal advisor to other municipal advisory clients and, in such cases, owes a regulatory duty to such other clients just as it will to your entity, if hired. These other clients may, from time to time and depending on the specific circumstances, have competing interests. In acting in the interests of its various clients, KNN could potentially face a conflict of interest arising from these competing client interests. KNN fulfills its regulatory duty and mitigates such conflicts through dealing honestly and with the utmost good faith with its clients.
Compensation. KNN Public Finance represents that in connection with the issuance of municipal securities, KNN Public Finance may receive compensation from an Issuer or Obligated Person for services rendered, which compensation is contingent upon the successful closing of a transaction and/or is based on the size of a transaction. Consistent with the requirements of MSRB Rule G-42, KNN Public Finance hereby discloses that such contingent and/or transactional compensation may present a potential conflict of interest regarding KNN Public Finance’s ability to provide unbiased advice to enter into such transaction. This conflict of interest will not impair KNN Public Finance’s ability to render unbiased and competent advice or to fulfill its fiduciary duty to the Issuer.
If KNN Public Finance becomes aware of any additional potential or actual conflict of interest after this disclosure, KNN Public Finance will disclose the detailed information in writing to the Issuer in a timely manner.
Legal or Disciplinary Events
KNN Public Finance, LLC, has never been subject to any legal, disciplinary or regulatory actions nor was it ever subject to any legal, disciplinary or regulatory actions previously, when it was a division of Zions First National Bank or Zions Public Finance, Inc.
A regulatory action disclosure has been made on Form MA-I for one of KNN Public Finance municipal advisory personnel relating to a 1998 U.S. Securities and Exchange Commission (“SEC”) order that was filed while the municipal advisor was employed with a prior firm, (not KNN Public Finance). The details of which are available in Item 9; C(1), C(2), C(4), C(5) and the corresponding regulatory action DRP section on Form MA and Item 6C; (1), (2), (4), (5) and the corresponding regulatory action DRP section on Form MA-I. Issuers may electronically access KNN Public Finance’s most recent Form MA and each most recent Form MA-I filed with the Commission at the following website:
www.sec.gov/edgar/searchedgar/companysearch.html.
The SEC permits certain items of information required on Form MA and Form MA-I to be provided by reference to such required information already filed on a regulatory system (e.g., FINRA CRD). The above noted regulatory action has been referenced on both Form MA and MA-I due to the information already filed on FINRA’s CRD system and is publicly accessible through BrokerCheck at http://brokercheck.finra.org. For purposes of accessing such BrokerCheck information, the Municipal Advisor’s CRD number is 4457537.
There has been no change to any legal or disciplinary event that has been disclosed on KNN Public Finance’s original SEC registration Form MA filed on February 8, 2016 or Form MA-I’s filed on January 22, 2016.
2054 University Avenue, Suite 300 │ Berkeley, CA 94704 │ Main 510-839-8200 5901 West Century Boulevard, Suite 750 │ Los Angeles, CA 90045 │ Main 310-348-2901 A Limited Liability Company
Additional Disclosures - MSRB Rule G-10
Pursuant to Municipal Securities Rulemaking Board Rule G-10, on Investor and Municipal Advisory Client Education and Protection, Municipal Advisors are required to provide certain written information to their municipal entity and obligated person clients which include the following:
a) KNN Public Finance, LLC is currently registered as a Municipal Advisor with the U.S.
Securities and Exchange Commission and the Municipal Securities Rulemaking Board. b) Within the Municipal Securities Rulemaking Board (“MSRB”) website at www.msrb.org, City of Commerce may obtain the Municipal Advisory client brochure that is posted on the MSRB website. The brochure describes the protections that may be provided by the MSRB Rules along with how to file a complaint with financial regulatory authorities.
SIGNATURES OF FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement to take effect as of the first date written above.
CITY
CITY OF COMMERCE
By: ______________________________ ______________________ Hugo A. Argumedo, Mayor Date
CONTRACTOR
KNN Public Finance, LLC
By: _______________________________ ________________________ Melissa Shick, Director Date
ATTEST:
By: ______________________________ ________________________ Lena Shumway, City Clerk Date
APPROVED AS TO FORM:
By: ______________________________ ________________________ Noel Tapia, City Attorney Date