Agenda packet — San Dimas City Council, July 23, 2024 (part 2 of 2)

Resolution 2024-54 Page 3
Final Tract Map No. 73854 (TTM 16-01)
July 23, 2024
I, Debra Black, City Clerk, hereby certify that Resolution 2024-54 was adopted by the City Council of San Dimas at its regular meeting of July 23, 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
______________________________
Debra Black, City Clerk

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ATTACHMENT 3

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Agenda Item Staff Report
To: Honorable Mayor and Members of City Council
For the Meeting of July 23, 2024
From: Chris Constantin, City Manager
Prepared by: Michael O'Brien, Director of Administrative Services Subject: Approve a Renewal Agreement with Shuster Advisory Group, LLC for Plan Consulting and Investment Fiduciary Services for a Three-Year Term with the Option to Extend up to two Additional Years at a Rate of $25,500 per year for the 457(b) Deferred Compensation, 401(a) Defined Contribution Plan and Retiree Healthcare Savings Plans and Authorize the City Manager to Execute the Agreement in a Form Approved by City Attorney
____________________________________________________________________________

SUMMARY
The City currently provides an employer-sponsored deferred compensation plan under Section 457(b) of the Internal Revenue Code (“IRC”), as well as a 401(a) Plan and a Retirement Heath Savings Program (“RHS Plan”). The City has certain fiduciary duties and responsibilities under State law (California State Constitution, Article XVI Section 17) for these defined contribution retirement plans. The City engaged Shuster Advisory Group, LLC (“Shuster”) effective June 1, 2021 to be the fiduciary to the plan investments, consult on plan design and to implement a due diligence process for the City to follow and assist the City in meeting its fiduciary responsibilities. Shuster has met and exceeded expectations and Staff recommends authorization to renew the Agreement with Shuster.

RECOMMENDATION
Staff recommends the City Council:
• Approve the contract renewal agreement with Shuster Advisory Group, LLC for Plan Consulting and Investment Fiduciary Services for a three-year term with the option to extend up to two additional years at a rate of $25,500 per year for the 457(b) Deferred Compensation, 401(a) Defined Contribution Plan and Retiree Healthcare Savings Plans and authorize the City Manager to execute the agreement.

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Approve a Renewal Agreement with Shuster Advisory Group, LLC for Plan Consulting and Investment Fiduciary Services for the 457(b) Deferred Compensation, 401(a) Defined Contribution Plan and Retiree Healthcare Savings Plans Page 2 For the Meeting of July 23, 2024

FISCAL IMPACT
There is no fiscal impact to the City budget. The fee for Shuster’s services is paid by plan assets and there is no financial outlay from the City.

BACKGROUND
Prior to the engagement of Shuster, the City provided an employer-sponsored deferred compensation plan under Section 457(b) of the Internal Revenue Code (“IRC”) with three different record keepers, Nationwide, Lincoln Financial Group, and Mission Square (formerly ICMA-RC).

At the direction of Staff, Shuster completed an analysis of the existing 457(b) plan record keepers, analyzing fees, investments, crediting rates and services and at no cost to the City issued an RFP to the leading record keepers in the industry, including the three incumbent record keepers. Shuster then negotiated with the proponents for the best outcome for the plan participants. As a result, Mission Square was selected by the City and the plans were consolidated with Mission Square. The work by Shuster resulted in:
• Fee Savings: Shuster negotiated an 89% reduction in the average record keeping cost across the plans and a 50% reduction in the total plan administration fees (record keeping, average weighted fund expense, and advisor fees). These significant reductions have a direct and positive impact on account balances, ensuring that more of our employees hard-earned money is working for them rather than being consumed by fees.
• Competitive Guaranteed Interest Rate: For participants who want a safety of principal option, Shuster negotiated a new stable value investment for the plan that is currently providing a 3.50% crediting rate.
• Enhanced Investment Menu: The investment menu now includes best-in-class fund managers such as Vanguard, Fidelity, MFS, DFA, and American Funds, while also adding additional low-cost index and international options and specialty options such as utilities and technology.

The City also provides a defined contribution plan under IRC Section 401(a) for additional retirement savings for employees and a Retirement Heath Savings Program (“RHS Plan”), both plans now also record-kept by Mission Square with the same low administrative costs and investment menus.

As the plan sponsor, the City has certain fiduciary duties and responsibilities under State law (California State Constitution, Article XVI Section 17). These duties and responsibilities focus on ensuring the operation and investment of the public retirement plan is for the exclusive purpose of providing benefits to participants and beneficiaries. Specifically, fiduciary responsibilities include:
• Investing the assets of the plan.
• Administering the plan; and
• Engaging in a prudent process for making all decisions related to the operation of the plan, including decisions related to the plan's investments and related services.

As the Plan Sponsor, the City has the right to contract with third-party service providers in fulfilling the City’s responsibilities for the Plans and the City hired Shuster to assist in its fiduciary responsibilities.

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DISCUSSION/ANALYSIS
Based on Shuster’s performance during the initial Agreement, Staff recommends that the new agreement with Shuster be authorized. The ongoing services the City receives from Shuster include:
• Investment Fiduciary services.
o Investment monitoring and management.
o In-depth qualitative and quantitative fund analysis.
o Managing fund changes/updates.
• Plan conversion support.
• Compliance and plan design assistance.
• Participant education strategy and support (including on-site meetings):
• Fiduciary education and training for staff.
• Liaison to record keeper on behalf of the City
At no cost to the City, the City is able to obtain the needed Fiduciary, Investment and Advocacy services our City and plan participants need. The fee for Shuster’s services is $2,125 per month and is paid by plan assets thus there is no financial outlay from the City. Shuster’s Agreement does not include a minimum contract period which is a benefit to the City. The contract may be terminated with 60 days notice.

ALTERNATIVES
The City Council may elect not to enter into an agreement with Shuster Advisory Group. Denial of the agreement would result in the City assuming the full responsibility for fiduciary oversight of the retirement plans as well as affecting the fund lineup options and fee savings associated with that fund lineup that are made available through the Shuster Advisory Group LLC.

ENVIRONMENTAL REVIEW
Pursuant to CEQA guidelines Section 15061 (b)(3), CEQA does not apply to this item because there is no potential for causing a significant effect on the environment. Therefore, no additional environmental review is needed at this time.

Respectfully submitted,
Michael O'Brien
Director of Administrative Services
Attachments:

1. Agreement with Shuster Advisory Group LLC

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 1

CONTRACT SERVICES AGREEMENT
By and Between

CITY OF SAN DIMAS
and

SHUSTER ADVISORY GROUP, LLC
ATTACHMENT 1

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans

AGREEMENT FOR CONTRACT SERVICES

BETWEEN THE CITY OF SAN DIMAS AND

SHUSTER ADVISORY GROUP, LLC
THIS AGREEMENT FOR CONTRACT SERVICES (herein “Agreement”) is made and entered into this ___ day of ___________, 2024 by and between the City of San Dimas, a California municipal corporation (“City”) and Shuster Advisory Group, LLC, a limited liability company (“Consultant”). City and Consultant may be referred to, individually or collectively, as “Party” or “Parties.”

RECITALS
A. City had sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.

B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.

C. Pursuant to the City of San Dimas Municipal Code, City has authority to enter into and execute this Agreement.

D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.

OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 2 intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.

1.2 Consultant’s Proposal.

The Scope of Services shall include the Consultant’s scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.

1.3 Compliance with Law.

Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.

1.4 California Labor Law.

If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq., and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, including the following requirements:
(a) Public Work. The Parties acknowledge that some or all of the work to be performed under this Agreement is a “public work” as defined in Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Consultant shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages. Consultant shall pay prevailing wages to the extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request. By initiating any work under this Agreement, Consultant acknowledges receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site where work is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 3 Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor.
(d) Payroll Records. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and each subconsultant to:
keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects.

Consultant shall be responsible for compliance with these aforementioned Sections for all apprentice able occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable apprenticeship program.

Within sixty (60) days after concluding work pursuant to this Agreement, Consultant and each of its subconsultants shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement.
(f) Eight-Hour Work Day. Consultant acknowledges that eight (8) hours labor constitutes a legal day’s work. Consultant shall comply with and be bound by Labor Code Section 1810.
(g) Penalties for Excess Hours. Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code.

Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees. In accordance with the provisions of California Labor Code Section 1861, Consultant certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 4 Consultant’s Authorized Initials ________
(i) Consultant’s Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, Consultant shall be responsible for such subcontractor’s compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor.

1.5 Licenses, Permits, Fees and Assessments.

Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement.

Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.6 Familiarity with Work.

By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Contract Officer.

1.7 Care of Work.

The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 5

1.8 Further Responsibilities of Parties.

Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.

1.9 Additional Services.

City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other Consultants. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.

1.10 Special Requirements.

Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed the amounts as set forth in Exhibit “C” of this Agreement (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.9.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 6

2.2 Method of Compensation.

The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant’s rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.

2.3 Reimbursable Expenses.

Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.

Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.

2.4 Invoices.

Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall contain all information specified in Exhibit “C”, and shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subcontractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person.

City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.

2.5 Waiver.

Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 7 ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance.

Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.

3.3 Force Majeure.

The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.

3.4 Term.

Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding three (3) years from the date hereof, with the option of two additional one (1) year extensions upon written agreement of both parties, except as otherwise provided in the Schedule of Performance (Exhibit “D”).

ARTICLE 4. COORDINATION OF WORK

4.1 Representatives and Personnel of Consultant.

The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 8 Mark Shuster Managing Member
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.

Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement.

Consultant shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.

4.2 Status of Consultant.

Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.

4.3 Contract Officer.

The Contract Officer shall be Chris Constantin, City Manager, or such person as may be designated by the City Manager. It shall be the Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.

4.4 Independent Consultant.

Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge,

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 9 supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venture or a member of any joint enterprise with Consultant.

4.5 Prohibition Against Subcontracting or 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. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 5. INSURANCE AND INDEMNIFICATION

5.1 Insurance Coverages.

Without limiting Consultant’s indemnification of City, and prior to commencement of any services under this Agreement, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
(a) General liability insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office 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. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services 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.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 10 (c) Professional liability (errors & omissions) insurance. Consultant shall maintain professional liability 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. (d) Workers’ compensation insurance. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.

5.2 General Insurance Requirements.
(a) Proof of insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
(b) Duration of coverage. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants. (c) Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 11 (e) Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that 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 by the City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(g) Enforcement of contract provisions (non-estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
(j) Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 12 against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(q) Additional insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.

5.3 Indemnification.

To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 13 (a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.

Consultant shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.

ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION

6.1 Records.

Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 14 cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.

6.2 Reports.

Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.

6.3 Ownership of Documents.

All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein.

All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.

6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 15 Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors 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 party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION

7.1 California Law.

This Agreement shall be interpreted, construed and governed 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, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California.

7.2 Disputes; Default.

In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 16

7.3 Retention of Funds.

Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.

7.4 Waiver.

Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.

Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

7.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.

7.6 Legal Action.

In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.

7.7 Termination Prior to Expiration of Term.

This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 17 Contract at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.

7.8 Termination for Default of Consultant.

If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.

7.9 Attorneys’ Fees.

If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any appeal, and in addition a party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

8.1 Non-liability of City Officers and Employees.

No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 18

8.2 Conflict of Interest.

Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.

No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

8.3 Covenant Against Discrimination.

Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.

8.4 Unauthorized Aliens.

Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.

ARTICLE 9. MISCELLANEOUS PROVISIONS

9.1 Notices.

Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 19 Manager and to the attention of the Contract Officer (with her/his name and City title), City of San Dimas, 245 East Bonita Avenue, San Dimas, CA 91773 and in the case of the Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 Interpretation.

The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

9.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

9.4 Integration; Amendment.

This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.

9.5 Severability.

In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

9.6 Warranty & Representation of Non-Collusion.

No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 20 “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Consultant warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement.

Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.

Consultant’s Authorized Initials _______

9.7 Corporate Authority.

The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans 21 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.

CITY:

CITY OF SAN DIMAS, a municipal corporation

Chris Constantin, City Manager
ATTEST:

Debra Black, City Clerk
APPROVED AS TO FORM:

ALESHIRE & WYNDER, LLP

Jeff Malawy, City Attorney
CONSULTANT:

SHUSTER ADVISORY GROUP, LLC
By:

Name: Mark Shuster
Title: Managing Member
By:

Name: JoAnn Parrino
Title: Member
Address:155 North Lake Avenue, Suite 500
Pasadena, CA 91101

Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S

SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE

INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans

CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT

STATE OF CALIFORNIA

COUNTY OF LOS ANGELES
On __________, 2021 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature: _____________________________________

OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT

INDIVIDUAL

CORPORATE OFFICER
_______________________________

TITLE(S)

PARTNER(S) LIMITED

GENERAL

ATTORNEY-IN-FACT

TRUSTEE(S)

GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________

TITLE OR TYPE OF DOCUMENT
___________________________________

NUMBER OF PAGES
___________________________________

DATE OF DOCUMENT
___________________________________

SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans

CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT

STATE OF CALIFORNIA

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature: _____________________________________

OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT

INDIVIDUAL

CORPORATE OFFICER
_______________________________

TITLE(S)

PARTNER(S) LIMITED

GENERAL

ATTORNEY-IN-FACT

TRUSTEE(S)

TITLE OR TYPE OF DOCUMENT
___________________________________

NUMBER OF PAGES
___________________________________

DATE OF DOCUMENT
___________________________________

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans A-1 EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will provide Fiduciary Services and Non-Fiduciary Services to the City in relation to the City of San Dimas’ § 457 Deferred Compensation Plan, § 401(a) Defined Contribution Plan, and Retiree Health Savings (“RHS”) Plan (the “Services”), as follows:

A. FIDUCIARY SERVICES. Consultant shall act as a fiduciary of the Plans (defined below in paragraph I.A.1. below) and as a registered investment Consultant under the Investment Advisers Act of 1940 and shall provide the following services (hereinafter “Fiduciary Services”):

1. Development of an investment policy statement (IPS). The IPS establishes the investment policies and objectives for the Plans, and shall set forth the asset classes and investment categories to be offered under the Plans, as well as the criteria and standards for selecting and monitoring the investments. The City shall have the ultimate responsibility and authority to establish such policies and objectives and to review the Investment Policy Statement annually.

2. Consistent with the City’s Investment Policy Statement, as adopted by City Council resolution and as may be updated annually, Consultant will select the initial investment options within the City’s §457 Deferred Compensation Plan, §401(a) Defined Contribution Plan, and RHS Plan (collectively, the “Plans”; “Plan” shall refer to any one of the Plans listed in this paragraph).

3. Consultant will periodically review the investments within the Plans and shall be responsible for making additions/deletions thereto.

4. Prepare and provide to the City periodic investment advisory reports that document consistency of fund management and performance to the guidelines set forth in the IPS and make recommendations to maintain or remove and replace investment options. Such quarterly reports shall include Market Overview, In-Depth Portfolio Summary, Plan Asset Allocation Analysis and Fund Performance Comparison to the Index..

5. At the request of the Contract Officer, Consultant shall meet with the Contract Officer as needed to discuss Consultant’s reports, recommendations, and performance of the Services. Nevertheless, Consultant shall also meet with the Contract Officer at least once per 12- month period to discuss Consultant’s reports, recommendations, and performance of the Services. This meeting may be conducted in person or via webinar. Furthermore, in addition to any other reports requested by

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans A-2 the City through its Contract Officer, Consultant shall also provide the Contract Officer with the following reports annually or as reasonably requested by the Contract Officer:
a. Consultant Fee Benchmarking Report: This report shall include a review of performance of funds and Plan items.

More specifically, this report will compare Consultant’s fees and services to a database of industry norms for plan advisors (including fees charged and services provided) for plans of similar size.
b. Consultant Fee Earn Summary: As fees are paid from plan assets and remitted by the Plan Record Keeper, consultant shall provide a summary of all fees earned and received during previous twelve (12) months, in lieu of submitting invoices to City.
c. Service Plan: This report shall include specific named action items and targeted deliverables.
d. Plan Cost Analysis: This report shall show all investment, plan and advisor fees. This report shall also show the
current interest rate being credited and the net effect to participants of Plan after fees.
e. Plan Fee Benchmarking: This report shall include a
benchmark of the Plan, investment and advisor fees against other plans with similar demographics.
f. Investment Review: This report shall show the scoring methodology, scoring, returns and considerations that are utilized in reviewing and scoring funds.

6. Selection of a default investment for participants who fail to make an investment election.

7. Coordinate the Deferred Compensation Committee meetings (if applicable), record the meetings minutes and provide minutes to attending members.

8. Limitations on Fiduciary Services. Consultant shall not be responsible or liable for the recommendations of or services rendered by anyone other than the Consultant. The ability to perform the above services is contingent upon the rules, policies, processes, and responsiveness to our requests for information of the City, Plan Sponsor, Record Keeper(s), and/or Third Party Administrators.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans A-3 B. NON-FIDUCIARY SERVICES. Consultant will perform the following nonfiduciary services (“Non-Fiduciary Services”):

1. Education program strategy - Assist in the education of the participants in the Plan(s) about general investing principles and the investment alternatives. This includes on-site meetings, webinars, one-on-one consultations.

2. Distribute Plan(s) level newsletters to the City

3. Distribute employee level memos to the City for distribution to their participants

4. Plan(s) design consulting and Plan document review

5. Assist the City in the transition of previous record-keeper(s) and/or Plan(s) provider(s)

6. Provide vendor management/issue resolution to the City

7. Provide consulting assistance on fiduciary best practices such as Fiduciary Education

8. Provide the City with custom communications when needed

9. Assist the City in their communications with record-keepers and/or Plan(s) providers

10. Provide the City with compliance updates and best practices

11. Provide RFP services and Plan(s) fee negotiations on behalf of the City

12. Incumbent vendor and fee review

13. Custom communications

14. Contract review support

15. Limitations on Non-Fiduciary Services. Consultant shall not be responsible or liable for the recommendations of or services rendered by anyone other than Consultant. Consultant and City/Plan Sponsor will work together to determine mutually agreed upon for services requiring both parties coordinate and/or attend. The ability to perform the above services is contingent upon the rules, policies, processes, and responsiveness to our requests for information of City, Plan Sponsor, Record Keeper(s), and/or Third Party Administrator(s).

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans A-4 C. CONSULTING & CO-FIDUCIARY ACKNOWLEDGMENTS.

The City acknowledges the following:
 The City, as the responsible plan fiduciary for the City’s § 457 Deferred Compensation Plan, § 401(a) Defined Contribution Plan and RHS Plan, has the authority to designate investment alternatives under the Plans and the related trust(s), and to enter into an agreement with third parties to assist in these and related duties.
 In performing its Fiduciary Services, Consultant is acting as a fiduciary of the Plans and as a registered investment Consultant under the Investment Advisor’s Act of 1940. In performing the Non-Fiduciary Services, Consultant is not acting as a fiduciary of the Plans
 In performing both Non-Fiduciary Services and Fiduciary Services, Consultant does not act as, nor has Consultant agreed to assume the duties of, a trustee or the Plan Administrator, and Consultant has no discretion or responsibility to interpret the Plan documents, to determine eligibility or participation under the Plans, or to take any other action with respect to the management, administration or any other aspect of the Plans.  Consultant will perform the Fiduciary Services described herein in accordance with the standard of care of the prudent man rule set forth in ERISA Section 404(a)(1)(B) or comparable state law.
 Consultant will perform the Non-Fiduciary Services described herein using reasonable business judgment and shall not be liable for any liabilities and claims arising thereunder, unless directly arising from Consultant’s intentional misconduct or gross negligence, except as prescribed and authorized in Section 5.3.
 Consultant does not provide legal or tax advice.
 Investments are subject to various market, political, currency, economic, and business risks, and may not always be profitable. As a result, Consultant does not and cannot guarantee financial results.  Consultant may, by reason of performing services for other clients, from time to time acquire confidential information. City acknowledges and agrees that Consultant is unable to divulge to the City or any other party, or to act upon, any such confidential information with respect to its performance of this Agreement.
 Consultant is entitled to rely upon all information provided to Consultant (whether financial or otherwise) from reputable third parties or by City, City’s representatives or third-party service providers to City, the Plan or

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans A-5 the Consultant, without independent verification. City agrees to promptly notify Consultant in writing of any material change in the financial and other information provided to Consultant and to promptly provide any such additional information as may be reasonably requested by Consultant.
 Consultant will not be responsible for voting (or recommending how to vote) proxies of any publicly traded securities (including mutual fund shares) held by the Plan (or its trust). Responsibility for voting proxies of investments held by the Plans or its trust remain with City (or, if applicable, the participants of the Plan).
 City understands that Consultant (i) may perform other services for other clients, (ii) may charge a different fee for other clients, and (iii) may give advice and take action that is different for each client even when retirement plans are similar.
 City acknowledges that Consultant has no responsibility to provide any services related to the following types of assets: real estate (except for real estate funds and publicly traded REITs); stock brokerage accounts or mutual fund windows; in-plan retirement income annuity products, participant loans; non-publicly traded partnership interests; other nonpublicly traded securities (other than collective trusts and similar vehicles); or other hard-to-value securities or assets. Such assets (except for real estate funds, publicly traded REITs, and collective trusts and similar vehicles) shall be referred to collectively as “Excluded Assets.” The Excluded Assets shall be disregarded in determining the Fees payable to Consultant pursuant to Section 3.3 and Exhibit C of this Agreement, and the Fees shall be calculated only on the remaining assets (the “Included Assets”).
 Consultant agrees to take reasonable steps to protect Private Participant Information and Plan Investment Data in its possession; Consultant is not responsible for the assessment of systems and procedures of third parties for the protection of plan and participant data; Consultant is not responsible for the actions by or the failure to act by City, by other service providers, or by Plan participants to protect Data; Consultant shall have no liability in the event of a Data breach or a violation of participant privacy rights (under the California Consumer Privacy Act or otherwise) unless said breach is the direct result of negligence, recklessness, or willful misconduct of an employee of Consultant.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans A-6  The Plan and related Trust permit payment of fees out of Plan assets. City has determined that the fees charged by Consultant are reasonable and are the obligation of the Plan; however, if City desires, it may pay the fees directly, rather than with Plan assets.
 City acknowledges receipt and undertakes to review and consider the disclosures made by Consultant (including in this Agreement, the Form ADV Part 2 and Consultant Privacy Policy, which is incorporated into this Agreement and attached in Appendix B of Exhibit A), in particular the portions related to services, compensation, and potential conflicts of interest, as well as the remainder of the disclosures concerning, among other matters, background information such as educational and business history, business practices such as the types of Consultant services provided, the methods of securities analysis used, and the like. o Further, City consents to electronic delivery (via email or other generally accepted method) of current and future distributions of Consultant’s Form ADV Part 2 and Privacy Policy. Consent to electronic delivery may be canceled at any time by sending a written request to Consultant.

II. As part of the Services, Consultant will prepare and deliver the following tangible work products to the City:

A. Consultant shall provide such status reports that may be required by the City from time to time.

III. In addition to the requirements of Section 6.2 and this Exhibit “A”, during performance of the Services, Consultant will keep the City appraised of the status of performance by delivering the following status reports:

A. Consultant shall provide such status reports that may be required by the City from time to time.

IV. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.

V. Consultant will utilize the following personnel to accomplish the Services:

A. Mark Shuster, Managing Member
B. JoAnn Parrino, Partner,

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans A-7 C. Other supporting personnel of Shuster Advisory Group, LLC., including but not limited to:
i. Relationship/Case Manager
ii. Investment Analyst
iii. Compliance Manager/Director
iv. Chief Operations Officer

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City of San Dimas Consultant Agmt for 457(b),401(a) & RHS Plans B-1 EXHIBIT “B”

SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
Added text is indicated in bold italics, deleted text is indicated in strikethrough.

I. Section 1.4(a) “Public Work” is hereby deleted.

II. Section 2.1, Contract Sum, is amended as follows (strikethrough represents deleted language while bold italics represent new language):
“Subject to any limitations set forth in this Agreement, City agrees to pay Consultant shall be compensated pursuant to and the amounts specified in the “Schedule of Compensation” attached hereto as in accordance with the provisions of Exhibit “C”, and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed
__________________________________ Dollars ($______) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.9.” III. Section 2.4, “Invoices,” is hereby deleted.

IV. Section 5.2(i), “Notice of Cancellation,” is amended as follows (strikethrough represents deleted language while bold italics represents new language):
“Consultant agrees to provide oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.

Said notice shall be in writing sent via certified mail return receipt requested” V. Section 6.4(a), “Confidentiality and Release of Information”, is amended as follows (strikethrough represents deleted language while bold italics represents new language):to read:
“All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer, except as required by law.”
VI. Section 7.2, Disputes; Default, is amended as follows (strikethrough represents deleted language while bold italics represents new language):to read

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City of San Dimas Consultant Agmt for 457(b),401(a) & RHS Plans B-2 “In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.”
VII. Section 7.3, “Retention of Funds,” is hereby deleted.

VIII. Section 7.8, “Termination Prior to Expiration of Term,” is amended as follows (strikethrough represents deleted language while bold italics represents new language):
“This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section

7.2.”

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans C-1 EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall be compensated for the Services as follows:

A. For the provision of Services, Consultant shall be solely compensated by Plan participants in arrears and on a monthly basis, wherein each monthly period is the “Billing Period.” The Billing Period will commence the date that the city and MissionSquare Retirement, enter into new 457(b), 401(a), and RHS Plan Recordkeeping Expense Account Agreements as follows:

B. Consultant’s compensation will be automatically deducted from each Plan participant’s account in the City of San Dimas’ §457(b) Deferred Compensation Plan, §401(a) Defined Contribution, and Retiree Health Savings plan (“Plan”) assets and directly paid to Consultant by MissionSquare Retirement, pursuant to the applicable Recordkeeping Expense Account Agreement between City and MissionSquare Retirement.

C. For purposes of determining and calculating Consultant’s compensation, Plan assets are valued net of Excluded Assets as of the last day of a calendar month, unless otherwise indicated. All fees shall be received in arrears. The Consultant’s annual compensation for Services shall be calculated as follows:
(1) Advisory Services Fee Schedule:

The fee for services shall be $25,500 per annum, paid $2,125 per month. Fees will be deducted from Plan assets and will be paid to Consultant by the recordkeeper. (2) Advisory Services Fees shall be allocated between the 457(b), 401(a) and RHS Plans, each month, on a pro rata basis, based on Plan assets, net of Excluded Assets.

D. Because Consultant is solely and automatically compensated based upon a participant’s participation in the Plan, Payments to Consultant shall automatically be deducted from each Plan participant’s account on a pro-rata basis.

E. If this Agreement is terminated prior to the end of a Billing Period, Consultant shall be entitled to a fee that is prorated for the number of days in the Billing Period prior to the effective date of termination and shall be paid by Plan participants as provided in Section I(A) of this Exhibit “C”.

F. All fees are payable to “Shuster Advisory Group, LLC.” F. Because Consultant is solely and automatically compensated by Plan assets, Consultant acknowledges and agrees that City shall not be obligated to

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans C-2 compensate Consultant for any Services rendered pursuant to this Agreement and that Consultant’s compensation under this Agreement shall be solely derived from assets in the Plan as described in this Exhibit “C.”
II. A retention of ten percent (10%) shall be held from each payment as a contract retention to be paid as part of the final payment upon satisfactory completion of services. NOT APPLICABLE
III. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.9. NOT APPLICABLE.

IV. The City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include: NOT APPLICABLE A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.

B. Line items for all materials and equipment properly charged to the Services.

C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.

D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.

V. The total compensation for the Services shall not exceed the Contract Sum as provided in Section 2.1 of this Agreement.

VI. The Consultant’s billing rates for all personnel are attached as Exhibit C-1. NOT APPLICABLE.

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City of San Dimas Consultant Agreement for 457(b) & RHS Plans D-1 EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely in accordance with a schedule developed in conjunction with the City.

II. Consultant shall deliver the following tangible work products to the City by the following dates.

A. Consultant shall deliver such tangible work product as may be required from time to time by the City.

III. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2.

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Agenda Item Staff Report
To: Honorable Mayor and Members of City Council
For the Meeting of July 23, 2024
From: Chris Constantin, City Manager
Prepared by: Brad McKinney, Assistant City Manager
Subject: Approve an Agreement with Edlin Gallagher Huie + Blum as Special Legal Counsel for Litigation Associated with the BKK Landfill ____________________________________________________________________________

SUMMARY
The staff report seeks City Council approval for an agreement with Edlin Gallagher Huie + Blum to serve as Special Legal Counsel for litigation associated with the BKK Landfill. Due to the complexity and specialized nature of the environmental issues involved, the City requires expert legal representation. The current City Attorney's firm is conflicted due to representing multiple cities involved in the matter, necessitating the engagement of external counsel. The agreement, structured on a contingency fee basis, proposes a $205 hourly rate for legal services. Approval of this agreement ensures the City is well-equipped to address the environmental and legal challenges posed by the BKK Landfill.

RECOMMENDATION
Staff recommends the City Council:

1. Approve the agreement with Edlin Gallagher Huie + Blum for Special Legal Counsel services related to the BKK Landfill litigation.

2. Authorize the City Manager to execute the agreement and any related documents on behalf of the City in a form approved by the City Attorney.

FISCAL IMPACT
The proposed agreement stipulates a $205 per hour rate for all attorney’s and $95 per hour rate for paralegal’s performing work on this project. Funding for legal services is already budgeted within the 2024-25 Operating and Capital Budgets. The total cost of the agreement will not be known due to the nature of potential litigation and the complexity of this case.

BACKGROUND

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Approve Agreement with Edlin Gallagher Huie + Blum as Special Legal Counsel for Litigation Associated with the BKK Landfill Page 2
For the Meeting of July 23, 2024
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1 The BKK Landfill, located in West Covina, has a history of environmental issues that have impacted surrounding communities. The landfill has been the subject of numerous complaints and legal actions related to environmental contamination and public health concerns. Given the complexity and specialized nature of the legal issues involved, it is necessary for the City to be represented by legal counsel expertise in environmental law and litigation.

DISCUSSION/ANALYSIS
The litigation involving the BKK Landfill is highly specialized, requiring expertise in environmental regulations, and complex litigation strategies. While the City Attorney’s firm has this expertise, the City Attorney’s firm cannot represent the City, or any other city, in the BKK matter due to a conflict of interest under the State Bar Rules of Professional Conduct. The City Attorney’s firm serves as city attorney for multiple cities involved in the BKK matter that are not all in the same position with respect to liability from the landfill, which creates immediate conflicting duties for the firm and requires withdrawal.

The Special Legal Counsel will provide comprehensive legal services including, but not limited to:
• Legal research and analysis of environmental issues related to the BKK Landfill. • Representation of the City in all legal proceedings related to the landfill. • Negotiation with responsible parties and regulatory agencies. • Development of litigation strategy and case management. • Advising the City Council and staff on legal matters related to the landfill.

Engaging Special Legal Counsel is critical for effectively managing the complex litigation associated with the BKK Landfill. Edlin Gallagher Huie + Blum has the necessary expertise and experience to represent the City’s interests and achieve a favorable outcome. Approval of this agreement will ensure that the City is well-positioned to address the legal and environmental challenges posed by the BKK Landfill.

ALTERNATIVES
The City Council could direct staff to find an alternative Special Counsel or face this legal challenge without specialized representation, potentially resulting in adverse outcomes.

ENVIRONMENTAL REVIEW
This item is not a project and does not fall within the meaning of Section 15378 of the State of California Environmental Quality Act (“CEQA”) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly.

Respectfully submitted,
Click or tap here to enter text.

Brad McKinney
Assistant City Manager

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Approve Agreement with Edlin Gallagher Huie + Blum as Special Legal Counsel for Litigation Associated with the BKK Landfill Page 3
For the Meeting of July 23, 2024
5 5
1 Attachments:

1. Representation Agreement with Edlin Gallagher Huie + Blum

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ATTORNEY-CLIENT FEE AGREEMENT
This is the written fee agreement (“Agreement”) that California Law requires attorneys to have with their clients. Edlin Gallagher Huie + Blum (“Attorney”) will provide legal services to CITY OF SAN DIMAS (“Client”) under the terms set forth below.

1. CONDITIONS. This Agreement will not take effect, and Attorney will have no obligation to provide legal services, until Client returns a signed copy of this Agreement.

2. SCOPE OF SERVICES. Attorney will provide those legal services reasonably required to represent Client regarding claims of potential liability related to the BKK Landfill in West Covina, CA.

Attorney will take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries.

3. INSURANCE DISCLOSURE. This law firm carries adequate insurance coverage pursuant to Business and Professions Code Section 6148 (a) (4).

4. CLIENT’S DUTIES. Client agrees to be truthful with Attorney, to cooperate, to keep Attorney informed of any information or developments which may come to Client’s attention, to abide by this agreement, to pay Attorney’s bills within fifteen days of receipt and to keep Attorney advised of Client’s address, telephone number and whereabouts. Client will assist Attorney in providing necessary information and documents and will appear when necessary at legal proceedings.

5. LEGAL FEES AND BILLING PRACTICES. Client agrees to pay by the hour at Attorney’s prevailing rates for all time spent on Client’s matter by Attorney’s legal personnel. Current hourly rates for legal personnel are as follows:

Partners $205 per Hour
Associates $205 per Hour
Paralegals $95 per Hour
The rates on this schedule are subject to change on thirty (30) days prior email or written notice to Client. If Client declines to pay any increased rates, Attorney will have the right to withdraw as Attorney for Client.

The time charged will include the time Attorney spends on telephone calls relating to Client’s matter, including calls with Client, witnesses, opposing counsel or court personnel. The legal personnel assigned to Client’s matter may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary. Likewise, if more than one of the legal personnel attends a meeting, court hearing or other proceeding, each will charge for the time spent. Attorney will charge for waiting time in court and elsewhere and for travel time, both local and out of town.

Time is charged in minimum units of one tenth (.1) of an hour.

6. Client agrees to immediately pay Attorney a retainer of $______. Attorney will immediately apply payment against services Attorney performs hereunder. Attorney will have no obligation to perform work hereunder until said retainer has been paid. This retainer will be used to pay Client’s monthly bills. As the balance of the retainer is reduced to pay Client’s monthly bills, it will be replenished by Client.

7. COSTS AND OTHER CHARGES. Attorney will incur various costs and expenses in performing legal services under this Agreement. Client agrees to pay for all costs, disbursements and expenses, at no mark-up, in addition to the hourly fees. The costs and expenses commonly include, service of process charges, filing fees, court and deposition reporter’s fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, Attachment

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Attorney-Client Fee Agreement

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photocopying, scanning and other reproduction costs, electronic document management, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultant’s fees, expert witness, professional mediator, arbitrator and/or special master fees and other similar items.

Client agrees to pay, at no mark-up, transportation, meals, lodging and all other costs of any necessary out-of-town travel by Attorney’s personnel. Client will also be charged the hourly rates for the time Attorney and its legal personnel spend traveling.

To aid in the preparation or presentation of Client’s case, it may become necessary to hire consultants or investigators. Client agrees to pay such fees and charges, at no mark-up. Attorney will select any consultants or investigators to be hired and Client will be informed of persons chosen and their charges.

8. BILLING STATEMENT. Attorney will send Client itemized monthly statements for fees and costs incurred, to be transmitted as agreed by Client and Attorney. The statements will be payable fifteen days of the date of receipt.

9. DISCHARGE AND WITHDRAWAL. Client may discharge Attorney at any time. Attorney may withdraw with Client’s consent or for good cause. Good cause includes client’s breach of this agreement, including refusal to cooperate or to follow Attorney’s advice on a material matter of any fact or circumstance that would render Attorney’s continuing representation unlawful or unethical, and nonpayment of Attorney’s fees and costs. When Attorney’s services conclude, all unpaid charges will immediately become due and payable. After services conclude, Attorney, will, upon Client’s request, deliver Client’s file and property in Attorney’s possession, whether or not Client has paid for all services.

10. DISCLAIMER OF GUARANTEE AND ESTIMATES. Nothing in this agreement and nothing in Attorney’s statements to Client will be construed as a promise or guarantee about the outcome of the matter. Attorney makes no such promises or guarantees. Attorney’s comments about the outcome of the matter are expressions of opinion only. Any estimate of fees given by Attorney shall not be a guarantee. Actual fees may vary from estimates given.

11. RETENTION OF CLIENT DOCUMENTS. Client acknowledges that Attorney will retain Client’s documents no longer than six years from the date of execution of the Agreement unless otherwise agreed, in writing, by Attorney. Client agrees to pay Attorney for the costs incurred by Attorney for storage of Client’s files. Attorney will notify Client before destruction of Client’s documents and client may then elect to have its documents returned. Client agrees to pay the entire shipping costs for the return of its documents.

12. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may be modified by subsequent agreement of the parties only by an instrument in writing signed by both of us or an oral agreement only to the extent that the parties carry it out.

13. EFFECTIVE DATE. This Agreement will govern all services performed by Attorney on your behalf commencing with the date Attorney first performed services. The date the Agreement is signed is for reference only. Even if this Agreement does not take effect, you will be obligated to pay the reasonable value of any services Attorney may have performed for you. ///

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Attorney-Client Fee Agreement

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14. COMPLETING AGREEMENT. You agree to read and understand this Attorney-Retainer and Fee Agreement. If you do not understand any part of this Agreement, please contact us before proceeding. If the foregoing outline of our engagement and fees meets with your approval, please sign below.

15. ARBITRATION OF ALL DISPUTES INCLUDING CLAIMS OF MALPRACTICE. EGHB appreciates the opportunity to serve you and looks forward to a harmonious relationship. In the event you become dissatisfied for any reason, please bring that to our attention immediately. Most problems can be resolved by good faith discussion between the parties. Nevertheless, it is always possible that some dispute may arise which cannot be resolved by discussion between us. Attorney believes such disputes can be resolved more quickly and with less expense to all concerned by mediation or binding arbitration rather than by court action. Arbitration is a process by which both parties to a dispute agree to submit the matter to an arbitrator and to abide by the arbitrator’s decision. In arbitration, there is no right to a trial by jury and the arbitrator’s legal and factual determinations are not subject to appellate review. Rules of evidence and procedure are often less formal and rigid than in a trial before a court or jury. Arbitration usually results in a decision much more quickly than proceedings in court, and the attorney's fees and costs incurred by both sides are usually substantially less.

By agreeing to arbitrate you will be giving up the right to a jury trial and other rights, therefore we encourage you to discuss the advisability of arbitration with other counsel or any of your other advisors and to ask any questions of us or them that you may have.

By signing this agreement, you agree that in the event of any dispute arising out of or relating to this agreement, our relationship, or the services performed (including but not limited to disputes regarding attorneys’ fees or costs and those alleging negligence, breach of fiduciary duty, fraud, or any claim based upon a statute), such dispute shall be resolved by mediation and/or binding arbitration pursuant to the California arbitration act in effect at that time, including our mutual obligations of cooperation and disclosure. In so doing, we both give up our rights to a jury trial and to an appeal, except as provided by law.

16. STATE BAR FEE MEDIATION AND ARBITRATION. Notwithstanding paragraph 9 above, in any dispute subject to the jurisdiction of the State of California over attorney’s fees, charges, costs or expenses, you have the right to elect arbitration pursuant to the fee mediation and arbitration procedures of the State Bar of California, as set forth in the California Rules of Judicial Administration, Chapter 14, Article 11.

Because each party is giving up a right, you are encouraged to have an independent lawyer of your choice review these arbitration provisions before agreeing to them.

By signing this Agreement, you and Attorney confirm that we have read and understood paragraphs 10 and 11, and voluntarily agree to binding arbitration. In doing so, you and Attorney voluntarily give up important constitutional rights to trial by judge or jury, as well as rights to appeal. You are advised that you have the right to have an independent lawyer of your choice review these arbitration provisions, and this entire agreement, prior to signing this Agreement.

THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREED TO THEM AS OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. IF MORE THAN ONE CLIENT ///

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Attorney-Client Fee Agreement

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SIGNS BELOW, EACH AGREES TO BE LIABLE, JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT. CLIENT SHALL RECEIVE A FULLY EXECUTED DUPLICATE OF THIS AGREEMENT.

CLIENT:

Dated:

By
Authorized Representative
EDLIN GALLAGHER HUIE + BLUM
Dated: July 18, 2024
By Michael E. Gallagher

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PO Box 2411, Tustin, CA 92781
T: 657-622-4200 | F: 866-254-4423 | www.carlwarren.com
CA License #2607296
July 8, 2024
TO: City of San Dimas
ATTENTION: Brad McKinney
RE: Claim : San Dimas vs. Shin
Claimant : Ryan Shin
Member : City of San Dimas
Date Rec’d by Mbr : 6/27/24
Date of Event : 6/26/24
CW File Number : CJP-3051919 WRV
Please allow this correspondence to acknowledge receipt of the captioned claim. Please take the following action:
• CLAIM REJECTION: Send a standard rejection letter to the claimant.

Please include a Proof of Mailing with your rejection notice to the claimant. An exemplar copy of a Proof of Mailing is attached. Please provide us with a copy of the Notice of Rejection and copy of the Proof of Mailing. If you have any questions feel free to contact the assigned adjuster or the undersigned claims specialist.

Very Truly Yours,
CARL WARREN & CO.

Timothy M. Varon
Timothy M. Varon
Claims Supervisor

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XQH

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Agenda Item Staff Report
To: Honorable Mayor and Members of City Council
For the Meeting of July 23, 2024
From: Chris Constantin, City Manager
Prepared by: Scott Wasserman, Director of Parks & Recreation Subject: Resolution 2024-55 Approving and Authorizing the Assignment and Assumption Agreement and Lease Guaranty which Transfers the Sycamore Canyon Equestrian Center Lease Agreement and Three-Party Community Arena Agreement from Lauree and Danny Adair (dba D&L Ranch Management Company) to S & S Equine LLC operated by Steve and Sharlene Jackson

SUMMARY
Adopt Resolution 2024-55 approving and authorizing the City Manager to execute the Assignment and Assumption Agreement and Lease Guaranty to effectuate a transfer of the Sycamore Canyon Equestrian Center Lease from D&L Ranch Management Company to S & S Equine LLC.

RECOMMENDATION
Staff recommends the City Council:
• Adopt Resolution 2024-55 approving and authorizing the City Manager to execute the Assignment and Assumption Agreement and Lease Guaranty to effectuate a transfer of the lease agreement to operate the Sycamore Canyon Equestrian Center (SCEC), and a transfer of the Three Party Community Arena Agreement, from Danny and Lauree Adair dba D&L Ranch Management Company to S&S Equine LLC, in a form acceptable to the City Attorney.

FISCAL IMPACT
There is no fiscal impact for the recommended action, as the new Assignee will assume the same contract terms in the lease agreement as the current Lessee.

BACKGROUND
The SCEC is a seventeen-acre facility located at 1525 Sycamore Canyon Road that offers boarding for approximately 140 horses. The facility offers equestrian amenities that include horse

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Approve Transfer of Lease Agreement to Operate the Sycamore Canyon Equestrian Center to S & S Equine LLC Page 2
For the Meeting of July 23, 2024
stalls, wash stations, turnouts, four large arenas, two covered barns that are primarily used to store hay and feed. The facility also includes a private residence that is available to the Lessees.

The Lease Agreement allows the Lessee to retain complete autonomy with respect to operational decisions. Fees at the facility may be established by the Lessee. However, if the facility’s vacancy rate exceeds 20%, the City reserves the right at its sole discretion to review and approve the subsequent fee or charge increase.

The Lease Agreement is structured so that the City receives a flat monthly rent of $2,282, plus a quarterly percentage lease payment that reflects 2% of all gross revenues. The monthly base rent increases each year to correspond with the Consumer Price Index. Over the course of the contract, the Lease Operator was required to construct additional horse stalls, an office, landscaping and fencing, a mare motel, trash and manure enclosures, restrooms, ADA improvements, and a new pasture. In 2020, D&L Ranch Management accepted a loan from the City in the amount of $230,014 to construct new restrooms. To date, D&L Ranch Management has repaid $10,385 of the loan (and $3,019 in interest) to the City. Per the twenty-year amortization schedule, the full loan with interest is scheduled to be repaid in 2040. Repayment of this loan to the City will be the responsibility of the new Lease Operator. All improvements made to the facility remain the property of the City.

D&L Ranch Management Company was first issued the Conditional Use Permit to operate the Sycamore Canyon Equestrian Center (”SCEC”) in 1985. The current Lease Agreement with D&L Ranch Management Company was signed in 2005 and amended in 2010 and 2017. (Attachment 1, Exhibit A.) In 2010, the City Council took action to extend the term of the agreement through August 1, 2027, with one five-year option to extend if the Lessee is not in default of the Lease Agreement. Per Article 8 of the Lease Agreement (Assignment and Transfer), the current Lessee (D&L Ranch Management) has identified a potential management entity (S & S Equine, LLC) to whom it wishes to assign its interest in the Lease Agreement with the City to operate the Sycamore Canyon Equestrian Center.

In addition to approving the assignment of the Lease Agreement to S & S Equine, staff also recommends assigning S & S Equine all Lease Operator obligations enumerated in the ThreeParty Agreement (Attachment 1, Exhibit B). The Three-Party Agreement is between the City, Lease Operator and Chamber of Commerce (via the Rodeo Committee) and addresses the use, development and maintenance of the Rodeo Arena. Under the terms of the Three-Party Agreement, S & S Equine will be responsible for weekly maintenance of the rodeo arena and will be permitted to use the rodeo arena for approved equestrian shows, demonstrations and competitions up to four times per year.

DISCUSSION/ANALYSIS
The City hired a consultant to conduct its due diligence of S & S Equine in January 2024 and found the entity to be sufficiently capitalized to operate the equestrian facility. Additionally, the managing members of S & S Equine LLC, Steve and Sharlene Jackson, have agreed to provide a personal guarantee to fulfill all financial obligations related to operating the equestrian facility. (Attachment 1, Exhibit C.) Through the due diligence process, staff also confirmed that the entity’s experience and skills are a good match to operate the facility and provide services to the community.

The applicants, Steve and Sharlene Jackson, are a married couple that have over forty (40) years of combined experience in equestrian facility management, operations, sporting and training

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Approve Transfer of Lease Agreement to Operate the Sycamore Canyon Equestrian Center to S & S Equine LLC Page 3
For the Meeting of July 23, 2024
industry. Mr. Jackson was born and raised on an equestrian and cattle farm in Cavan, Ireland. He moved to the United States over 40 years ago to assist operating Hall of Fame trainer Bruce Headley’s trainer facility at the Pomona Fairplex. He was solely responsible for all operational and functional aspects of the facility on a daily basis. Steve successfully ran all aspects of the facility for several years before commencing his horse shoeing business in conjunction with acting as a consultant to an investment group who acquired the Encanto Equestrian Center located in Duarte, California. Mr. Jackson was able to successfully assist in the revitalization of the equestrian center and completed substantive renovations of the facility. The aforementioned renovations led to a significant increase in the number of horses and trainers at the facility along with increased profitability. While conducting the detailed background check of the provided relevant trade references and industry experts, Mr. Jackson was given by all parties a strong approval and it was confirmed that he has an impeccable reputation in the industry.

Mrs. Jackson and her family have been involved in various aspects of the equestrian industry for over three (3) generations. Her father and grandfather bred, owned and trained horses for several decades at Santa Anita, Del Mar and Hollywood Park. She grew up in the industry riding along with show jumping horses and working at various facilities since the age of 8. Throughout her adolescence and college years, she worked at several equestrian centers including the Serendipity Farm in Bradbury Estates, California. Mrs. Jackson has a Bachelor of Science Degree in Business Administration and a Masters in Business Administration with an emphasis on marketing and business administration. In conducting the background check with relevant trade references and industry experts, the consultant reports that Mrs. Jackson received extremely positive responses and support from each of the parties contacted.

The Jackson’s mission is to repair and upgrade the facility’s outdated infrastructure to create a safe and high-end recreational environment for the equestrians to enjoy. They will also implement a strategic and comprehensive marketing plan to re-brand the facility locally and regionally. Last, they will work with local community members in the equestrian sports and recreation industry to strengthen programs, including the addition of new pony camps, offering trail ride rental horses, horse shows and community events. Given the Jacksons' strong business acumen, significant experience in the industry and operational experience with equestrian facilities, staff and the consultant are confident S & S Equine will facilitate a successful transition and continue to thrive as facility operators in the future.

The current lease term that will be transferred to the Jacksons expires on August 1, 2027, and then has a tenant’s option to extend for 5 additional years (to August 1, 2032). As we move forward with the new relationship and service to the equestrian community, the City will work with the new Lessee to discuss the potential of extending the term of the Lease Agreement beyond 2032. In effectuating the transfer of Lease Agreement, the Assignor and Assignee agree to indemnify the City against any and all claims, liabilities or losses that arise out of the Lease Agreement.

ALTERNATIVES
If the City Council is not comfortable approving the transfer of Lease Agreement to S & S Equine LLC, it may consider the following options:

1. The City Council may direct staff to conduct additional research into S & S Equine to determine the entity’s suitability to operate the equestrian facility.

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Approve Transfer of Lease Agreement to Operate the Sycamore Canyon Equestrian Center to S & S Equine LLC Page 4
For the Meeting of July 23, 2024

2. The City Council could reject the proposed transfer of Lease Agreement to S & S Equine. Under this scenario, D&L Ranch Management would continue to operate the equestrian facility and S&S Equine would not be permitted to assume any interest in the Lease Agreement. D&L Ranch Company would be responsible for identifying any new prospective entity interested in assuming its interest in the Lease Agreement.

ENVIRONMENTAL REVIEW
This item is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines 15061(b)(3) because it can be seen with certainty that there is no possibility that the lease transfer may have a significant effect on the environment.

Respectfully submitted,
Click or tap here to enter text.

Scott Wasserman
Director of Parks & Recreation
Attachments:

1. Resolution 2024-55

2. Lease Assignment and Assumption Agreement
Exhibit A: Lease
Exhibit B: Three Party Agreement
Exhibit C: Personal Guaranty

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ATTACHMENT 1
RESOLUTION 2024-55

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN DIMAS,

APPROVING A LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT FROM

DANNY ADAIR AND LAUREE ADAIR DOING BUSINESS AS D&L RANCH MANAGEMENT COMPANY (“ASSIGNOR”) TO S & S EQUINE LLC (“ASSIGNEE”),

FOR TENANCY AND OPERATION OF THE SYCAMORE CANYON EQUESTRIAN CENTER
WHEREAS, The City of San Dimas owns the Sycamore Canyon Equestrian Facility at 1525 Sycamore Canyon Road to support equestrian activities in the community; and WHEREAS, Assignor and Landlord entered into that certain Sycamore Canyon Equestrian Center Lease Agreement dated December 1, 2005 as amended by that certain First Amendment to Sycamore Canyon Equestrian Center Lease dated September 18, 2010 and updated by a letter amendment dated August 15, 2017, whereby Assignor leased the Property from the City pursuant to the terms of the Lease Agreement; and WHEREAS, the Assignor is a party to a Three Party Community Arena Agreement which allows for the Assignor’s use of such arena for limited events in exchange for regularly maintaining the community arena; and
WHEREAS, the current Lessee wishes to transfer its interest in the Lease Agreement in accordance with Article 8 of the Lease agreement (Assignment and Transfer) with the City of San Dimas as well as the Assignor’s interest in the Three Party Community Arena Agreement to S & S Equine LLC to operate the Sycamore Canyon Equestrian Facility; and WHEREAS, the City has conducted its due diligence on S&S Equine and has determined that the entity possess the experience, skills and capital to operate the facility in a manner that is satisfactory to the City.

NOW, THEREFORE, BE IT RESOLVED:

SECTION 1. The City Council of the City of San Dimas hereby approves the Lease Assignment and Assumption Agreement attached to the City Council’s July 23 Staff Report.

SECTION 2. The City Council authorizes the City Manager or his designee to execute the Lease Assignment and Assumption Agreement attached to the City Council’s July 23 Staff Report, and all other documents necessary to effectuate the transfer and assignment of the Lease Agreement and Three Party Agreement by S & S Equine LLC; SECTION 3. The City Clerk shall attest and certify the adoption of this resolution.

PASSED, APPROVED AND ADOPTED this 23rd day of July 2024. __________________________
Emmett G. Badar, Mayor

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Resolution 2024-55 Page 2
Approving Lease Agreement and Assumption from Danny Adair and Lauree Adair July 23, 2024
ATTEST:
_____________________________
Debra Black, City Clerk
I, Debra Black, City Clerk, hereby certify that Resolution 2024-55 was approved by vote of the City Council of the City of San Dimas at its regular meeting of July 23, 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
_____________________________
Debra Black, City Clerk

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ATTACHMENT 2

LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT

AND CITY CONSENT

THIS LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT AND CITY CONSENT (“Agreement”) is dated as of ____________, 2024 (“Assignment Date”), by and among DANNY ADAIR AND LAUREE ADAIR doing business as D & L RANCH MANAGEMENT COMPANY (“Assignor”), S & S EQUINE LLC, a California limited liability company (“Assignee”) and the CITY OF SAN DIMAS, a municipal corporation (“City”).

RECITALS
A. City is the owner of that certain real property located in the City of San Dimas, County of Los Angeles, State of California, located at 1525 Sycamore Canyon, San Dimas (APN 8940-274- 003) in the City of San Dimas, CA which is improved as an equestrian center commonly known as “Sycamore Canyon Equestrian Center” and also contains a residence (“Property”).

B. Assignor as tenant and City as landlord entered into that certain Sycamore Canyon Equestrian Center Lease dated December 1, 2005 as amended by that certain First Amendment to Sycamore Canyon Equestrian Center Lease dated September 18, 2010 and updated by a letter amendment dated August 15, 2017, a copy of which documents are attached hereto as Exhibit A (“Lease”) whereby Assignor leased the Property from City pursuant to the terms of the Lease.

C. Assignor, City and San Dimas Chamber of Commerce (“Chamber of Commerce”) entered into that certain Three Party Community Arena Agreement dated May 31, 2000 which affects the Property a copy of which is attached hereto as Exhibit B (“Three Party Agreement”), D. Assignor intends to sell its business to Assignee which will include the assignment of its leasehold interest in the Lease and the Three Party Agreement to Assignee which Assignee will assume both the Lease and the Three Party Agreement.

E. City has been requested to consent to the assignment as required by the Lease and is willing to consent to same upon the terms set forth hereinbelow.

NOW, THEREFORE, in consideration of the mutual promises of the parties, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. Recitals. All of the foregoing recitals are true and correctand are incorporated herein by reference.

2. Effective Date. This Agreement shall be effective upon the date _____________, 2024 (“Effective Date”).

3. Assignment. As of the Effective Date, Assignor assigns, sells, conveys, and otherwise transfers to Assignee all of Assignor's interests, rights, and obligations under both the Lease and Three Party Agreement. As of the Effective Date, Assignor shall not be liable for the performance of any obligations, terms, covenants or conditions under the Lease and/or Three Party Agreement arising after the Effective Date.

4. Assumption of Obligations and Rights. As of the Effective Date, Assignee assumes and agrees to perform all of Assignor's interests, rights, and obligations under the Lease and the Three Party Agreement arising after the Effective Date. 01171.0020/976541.4 1 Page 228 – 305

5. Representations and Warranties. As of the Effective Date, Assignor represents and warrants to City that it is the sole owner of the leasehold interest in the Lease and the Three Party Agreement which is still in full force and effect. As of the Effective Date, Assignee represents and warrants to City that all information provided by Assignee in its request for City’s consent to the transfer of the Lease and the Three Party Agreement is true, complete and accurate.

6. City Consent. As of the Effective Date, City consents to the Assignment of the Lease and the Three Party Agreement to Assignee conditioned upon the Assignee executing and delivering to City the Personal Guaranty in the form of Exhibit C is executed by the principals in Assignee (“Personal Guaranty”). After the Effective Date, City shall provide a copy of this Agreement to the Chamber of Commerce.

7. Indemnification. Assignor agrees to indemnify,defend, and hold harmless Assignee and City and all persons and entities affiliated with same including their respective officers, agents and employees from and against any and all claims, liabilities, and losses (collectively, “Claims”) arising out of the Lease arising before the EffectiveDate. Assignee shall indemnify,defend, and hold harmless Assignor and its respective officers, agents and employees from and against any and all Claims arising out of the Lease arising after the Effective Date. Assignee shall also indemnify, defend, and hold harmless City and its respective officers, agents and employees from and against any and all Claims arising out of this Agreement after the EffectiveDate, including any Claims arising as a result of any inaccuracies in Assignee’s representations and warranties set forth in this Agreement.

8. Due Execution. The person(s) executing this Agreement on behalf of Assignee hereto warrants that: (i) Assignee is duly organized and existing; (ii) they are duly authorized to execute and deliver this Agreement on behalf of Assignee; (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement; and (iv) the entering into of this Agreement does not violate any provision of any other agreement to which said party is bound.

9. No Waiver. Nothing herein, including City’s consent, shall waive any rights of City in the future under the Lease including, but not limited to: (i) the right of City to declare a default for violation of the Lease, and (ii) the right to consent to any future transfers of the Lease.

10. 11.

Notice. After the Effective Date, any notice to Tenant shall be as follows:

To Tenant: S&S Equine LLC
751 Puma Canyon Lane
Glendora, CA 91740
Entire Agreement. This Agreement embodies the entire understanding among the parties.

12. Amendments or Modifications. This Agreement may not be amended or modified except in writing, executed all the parties.

13. Governing Law. This Agreement shall be construed and enforced in accordancewith the laws of the State of California and any legal action shall be brought in a court of competent jurisdiction in Los Angeles County.

14. Attorney’s Fees. In the event of any litigation or other legal proceeding arising f rom this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses, including attorney’s fees, incurred in the proceeding.

15. Construction. This Agreement shall be construed according to its fair meaning as if prepared by all parties and in favor of full enforcement. Headings used in this Covenant Agreement are provided for convenience only.
01171.0020/976541.4 2 Page 229 – 305

16. No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, the parties do not intend, and this Agreement shall not be construed, to create a third-party beneficiary status or interest in, nor give any third-party beneficiary rightsor remediesto, any other person or entity not a party to this Agreement. The Chamber of Commerce is a third party beneficiary of this Agreement with respect to the Three Party Agreement.

17. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one agreement.

18. Exhibits. Exhibits A, B and C attached hereto are incorporated herein by reference.

IN WITNESSWHEREOF,the parties have executedthis Agreement as of the Assignment Date.

ASSIGNEE: ASSIGNOR:

S & S EQUINE LLC, a California limited
liability company
__________________________
DANNY ADAIR doing business as D & L
By: _________________________ RANCH MANAGEMENT COMPANY
Sharlene Michelle Risdon-Jackson
Managing Member ___________________________
LAUREE ADAIR doing business as D & L

RANCH MANAGEMENT COMPANY
By: _________________________
Stephen Jackson
Managing Member
CITY:

CITY OF SAN DIMAS, a charter city
By: ________________________
Chris Constantin, City Manager
ATTEST:
_____________________________
Debra Black, MMC, City Clerk

APPROVED AS TO FORM
CITY ATTORNEY’S OFFICE
By: ___________________________
Jeffrey Malawy, City Attorney
01171.0020/976541.4 3 Page 230 – 305

EXHIBIT A

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EXHIBIT B

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EXHIBIT C

LEASE GUARANTY
This Lease Guaranty (“Guaranty”) dated as of _________, 2024 is made between SHARLENE MICHELLE RISDON-JACKSON and STEPHEN JACKSON (jointly and severally “Guarantor”) and THE CITY OF SAN DIMAS, a municipal corporation (“Landlord”) for the benefit of Landlord and its successors and assigns.

RECITALS:

A. Landlord is the owner of that certain real property located in the City of San Dim as, County of Los Angeles, State of California, located at 1525 Sycamore Canyon, San Dimas (APN 8940-274-003) in the City of San Dimas, CA which is improved as an equestrian center com m only known as “Sycamore Canyon Equestrian Center” and also contains a residence (“Property”).

B. Landlord and DANNY ADAIR AND LAUREE ADAIR doing business as D & L RANCH MANAGEMENT COMPANY (“Original Tenant”) entered into that certain Sycamore Canyon Equestrian Center Lease dated December 1, 2005 as amended by that certain First Amendment to Sycamore Canyon Equestrian Center Lease dated September 18, 2010 and updated by a letter amendment dated August 15, 2017 (“Lease”).

C. Original Tenant has sold its business to to S & S Equine, LLC, a California limited liability company (“Tenant”) which includes the assignment of its leasehold interest in the Lease to Tenant which Tenant has assumed.

D. Landlord has agreed to consent to the assignment pursuant to that certain Lease Assignment and Assumption Agreement and Landlord Consent dated _____, 2024 (“Lease Assignment”).

E. As an additional condition to entering into the Lease Assignment, Landlord has required and Guarantor has consented to execute and deliver this Guaranty.

AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated into the operative provisions of this Guaranty, Guarantor hereby agrees as follows:

Section 1. Guaranty. Guarantor absolutely and unconditionally guarantees to Landlord the timely payment of all amounts that Tenant may at any time owe under the Lease, or any extensions, renewals, or modifications of the Lease. Guarantor further guarantees to Landlord the full, faithful, and timely performance by Tenant of the Lease, or any extensions, renewals, or modifications of the Lease. If Tenant shall default at any time in the payment of any rent or any other sums, costs, or charges, or in the performance of any covenant or obligation under the Lease, then Guarantor, at Guarantor’s expense, shall on demand by Landlord fully and promptly pay all rent, sums, costs, and charges to be paid and perform all other covenants and obligations to be performed by Tenant pursuant to the Lease. In addition, Guarantor shall on demand by Landlord pay to Landlord all sums due to Landlord, including, without limitation, all interest on past due obligations of Tenant, costs advanced by Landlord, damages, and all expenses (including, without limitation, court costs and reasonable attorney’s fees) that may arise in consequence of Tenant’s default.

Section 2 Waivers. Guarantor authorizes Landlord, without notice or demand and without af f ecting Guarantor’s liability under this Guaranty, to:
(a) consent to any extensions, accelerations, or other changes in the time for any payment 1

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provided for in the Lease, or consent to any other alteration of any covenant, term, or condition of the Lease in any respect, and to consent to any assignment, subletting, or reassignment of the Lease;
(b) take and hold security for any payment provided for in the Lease or for the performance of any covenant, term, or condition of the Lease, or exchange, waive, or release any security; and
(c) apply this security and direct the order or manner of its sale as Landlord may determine.

Guarantor specifically waives(a) all rights and defenses arising out of an election of remedies by Landlord, even though that election of remedies has destroyed the Guarantor’s rights of subrogation and reimbursement against the principal of operation of law or otherwise, and (b) the rights and defenses available under California Civil Code Sections 2787 to 2855, inclusive, and California Code of Civil Procedure Sections 995.010 through 995.770 and Section 995.910 through 996.495, as such provisions may be amended from tile to time and (c) the benefit of any statute of limitations af f ecting Guarantor’s liability under this Guaranty.

Notwithstanding any termination, renewal, extension or holding over of the Lease, this Guaranty shall continue until all of the covenants and obligations on the part of Tenant to be performed have been fully and completely performed by Tenant, and Guarantor shall not be released of any obligation or liability under this Guaranty so long as there is any claim against Tenant arising out of the Lease that has not been settled or discharged in full.

Guarantor warrants and agrees that each of the waivers set forth in this Guaranty is made with Guarantor’s full knowledge of its significance and consequences, and that under circumstances, the waivers are reasonable and not contrary to public policy or law. If any of said waivers are determined to be contrary to any applicable law or public policy, waivers shall be effective only to the m ax imum extent permitted by law.

Section 3. Independent Obligations. The obligations of Guarantor under this Guaranty are independent of, and may exceed, the obligations of Tenant. A separate action may, at Landlord’s option, be brought and prosecuted against Guarantor, whether or not any action is first or subsequently brought against Tenant, or whether or not Tenant is joined in any action, and Guarantor may be joined in any action or proceeding commenced by Landlord against Tenant arising out of, in connection with, or based upon the Lease. Guarantor waives any right to:
(a) require Landlord to proceed against Tenant or any other person or entity or pursue any other remedy in Landlord’s power;
(b) complain of delay in the enforcement of Landlord’s rights under the Lease; and (c) require Landlord to proceed against or exhaust any security held from Tenant or Guarantor.

Guarantor waives any defense arising by reason of any disability or other defense of Tenant or by reason of the cessation from any cause of the liability of Tenant. Guarantor waives all demands upon and notices to Tenant and to Guarantor, including, without limitation, demands for performance, notices of nonperformance, notices of nonpayment, and notices of acceptance of this Guaranty.

Section 4. Definition of Tenant. For purposes of this Guaranty and the obligations and liabilities of Guarantor, the term “Tenant” shall be deemed to include any and all concessionaires, licensees, franchisees, department operators, assignees, subtenants, or others directly or indirectly leasing or occupying the Premises leased under the Lease or operating or conducting a business in or f rom these Premises.

Section 5. No Reporting Duty. Guarantor assumes full responsibility for keeping fully informed of the financial condition of Tenant and all other circumstances affecting Tenant’s ability to perform 2

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Tenant’s obligations under the Lease, and agrees that Landlord will have no duty to report to Guarantor any information that Landlord receives about Tenant’s financial condition or any circumstances bearing on Tenant’s ability to perform such obligations.

Section 6. Continuing Guaranty. This Guaranty shall remain in full force notwithstanding the appointment of a receiver to take possession of all or substantially all of the assets of Tenant, or an assignment by Tenant for the benefit of creditors, or any action taken or suffered by Tenant under any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief act or statute, whether now existing or later amended or enacted, or the disaffirmance of the Lease in any action or otherwise.

Section 7. Joint and Several Obligations. If this Guaranty is signed, or if the obligations of Tenant are otherwise guaranteed, by more than one party, their obligations shall be joint and several, and the release or limitation of liability of any one or more of the guarantors shall not release or limit the liability of any other guarantors.

Section 8. Successors and Assigns. This Guaranty shall be binding upon Guarantor and Guarantor’s heirs, administrators, personal and legal representatives, successors, and assigns, and shall inure to the benefit of Landlord and Landlord’s successors and assigns. Landlord may, without notice, assign this Guaranty, the Lease, or the rents and other sums payable under the Lease, in whole or in part.

Section 9. Guaranty of Costs and Fees. In addition to the amounts guaranteed, Guarantor agrees to pay reasonable attorney’s fees and all other costs and expenses incurred by Landlord in enforcing this Guaranty or in any action or proceeding arising out of, or relating to, this Guaranty.

Section 10. Governing Law. This Guaranty shall be deemed to be made under and shall be governed by California law in all respects, including matters of construction, validity, and performance, and the terms and provisions of this Guaranty may not be waived, altered, modified, or amended except in a writing signed by an authorized officer of Landlord and by Guarantor.

Section 11. Severance. If any of the provisions of this Guaranty shall contravene or be held invalid under the laws of any jurisdiction, this Guaranty shall be construed as if it did not contain those provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.

Section 12. Counterparts. This Guaranty may be executed in any number of counterparts, each of which shall be a valid and binding original, but all of which together shall constitute one and the same instrument.

Section 13. Effective Date. This Guaranty shall be effective upon the execution and deliver of the Lease Assignment by Landlord.

IN WITNESS WHEREOF, the undersigned has or have duly executed this Guaranty as of the date first specified above.
____________________________
Sharlene Michelle Risdon-Jackson
____________________________
Stephen Jackson
3

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San Dimas City CouncilJuly 23, 2024

San Dimas City Council
July 23, 2024