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HomeMy WebLinkAboutBFSG, LLC - 2009-01-01e �CONTRACTS SUBMITTAL TO CITY CLERIC'S OFFICE To: JOAN FLYNN, City Clerk Name of Contractor: BFSG, LLC Purpose of Contract: For Example: Audit Services or Water Quality Testing Huntington Lake —Huntington Central Park Advisory Investment Services Amount of Contract: $75,000.00 Copy of contract distributed to: The original insurance certificate/waiver distributed Initiating Dept. ❑ to Risk Management ❑ Finance Dept. ❑ ORIGINAL bonds sent to Treasurer ❑ Date: Name/Exte Sion ' City Attorney's Office G:AttyMisc/Contract Forms/City Clerk Transmittal PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND BFSG, LLC FOR ADVISORY INVESTMENT SERVICES THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY, and BFSG, LLC, a limited liability company hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to provide investment advisory services and compliance services; and Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach, Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and CONSULTANT has been selected to perform these services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: 1. SCOPE OF SERVICES CONSULTANT shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT." CONSULTANT hereby designates John Campbell who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement. 3. TERM; TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of CONSULTANT are to commence on �Gl.'n�lGlk�j 20_Dq (the "Commencement Date"). This Agreement 08-1622.001/28476 1 shall automatically terminate three (3) years from the Commencement Date, unless extended or sooner terminated as provided herein. The time for performance of the tasks identified in Exhibit "A" are generally to be shown in Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed to in writing by CITY and CONSULTANT. In the event the Commencement Date precedes the Effective Date, CONSULTANT shall be bound by all terms and conditions as provided herein. 4. COMPENSATION In consideration of the performance of the services described herein, CITY agrees to pay CONSULTANT on a time and materials basis at the rates specified in Exhibit "B," which is attached hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses, not to exceed Twenty -Five Thousand Dollars ($25,000.00) annually. 5. EXTRA WORK In the event CITY requires additional services not included in Exhibit "A" or changes in the scope of services described in Exhibit "A," CONSULTANT will undertake such work only after receiving written authorization from CITY. Additional compensation for such extra work shall be allowed only if the prior written approval of CITY is obtained. 6. METHOD OF PAYMENT CONSULTANT shall be paid pursuant to the terms of Exhibit "B." 7. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations, computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and CONSULTANT shall turn these materials over to CITY upon expiration or 08-1622.001/28476 2 termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit. 8. HOLD HARMLESS CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by CONSULTANT, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CONSULTANT will conduct all defense at its sole cost and expense and CITY shall approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by CONSULTANT. 9. PROFESSIONAL LIABILITY INSURANCE CONSULTANT shall obtain and furnish to CITY a professional liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for CONSULTANT's professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above -mentioned insurance shall not contain a self -insured retention, "deductible" or any other similar form of limitation on the required coverage except with the express written consent of CITY. A claims -made policy shall be acceptable if the policy further provides that: 08-1622.001/28476 3 A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). B. CONSULTANT shall notify CITY of circumstances or incidents that might give rise to future claims. CONSULTANT will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. If insurance is terminated for any reason, CONSULTANT agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. If CONSULTANT fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the CITY with required proof that insurance has been procured and is in force and paid for, the CITY shall have the right, at the CITY's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. CONSULTANT waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the CITY. 10. CERTIFICATE OF INSURANCE Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: A. provide the name and policy number of each carrier and policy; B. state that the policy is currently in force; and C. shall promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days' 08-1622.001/28476 4 prior written notice; however, ten (10) days' prior written notice in the event of cancellation for nonpayment of premium. CONSULTANT shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from CONSULTANT's defense, hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of the policy of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. 11. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder. 12. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT. 08-1622.001/28476 5 13. ASSIGNMENT AND DELEGATION This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subconsultants must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove. 14. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. 15. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 16. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and CONSULTANT may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U. S. certified mail -return receipt requested: 08-1622.001/28476 6 TO CITY: TO CONSULTANT: City of Huntington Beach BFSG, LLC ATTN: Shari Freidenrich, City Treasurer ATTN: John Campbell P.O. Box 190 2040 Main Street, Suite 150 Huntington Beach, CA 92648-0190 Irvine, CA 92614 17. CONSENT When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 18. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 19. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 20. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or 08-1622.001/28476 7 neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 21. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 22. IMMIGRATION CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 23. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 08-1622,001/28476 8 24. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing party. 25. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 26. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 27. SIGNATORIES Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, CONSULTANT's initials 28. ENTIRETY the signatory or is withdrawn. D� The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, 08-1622.001/28476 9 inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, and supersede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. 29. ERISA FIDUCIARY STATUS CONSULTANT hereby acknowledges and agrees that it will be a fiduciary of the Plan under ERISA and that it will perform its duties under the Agreement (a) in accordance with the provisions of the documents and instruments governing the Plan insofar as such documents and instruments are consistent with ERISA, (b) with the care, skill, prudence and diligence required of a fiduciary of a plan subject to ERISA, and (c) for the exclusive purpose of providing benefits to the Plan participant and beneficiaries and defraying reasonable expenses of administering the Plan. Notwithstanding the foregoing, CONSULTANT shall not be subject to ERISA fiduciary standards with respect to its performance of consulting services for the CITY in its settlor capacity. 30. SECURITIES LAW FIDUCIARY STATUS CONSULTANT hereby acknowledges and agrees that it is an investment adviser under the Investment Advisers Act of 1940, and that as such, it has a fiduciary duty to provide disinterested advice and disclose any material conflicts of interest to CITY. 31. ADVISER INDEPENDENCE Neither CONSULTANT nor any of its employees has a "material relationship," financial or otherwise, with any mutual fund or manager of any other investment vehicle that CONSULTANT will recommend, consider for recommendation, or otherwise mention to CITY for consideration. For this purpose, "material relationship" is any relationship that may affect the objectivity of the advice that CONSULTANT provides under the terms of this Agreement. 08-1622.001/28476 10 32. CONFIDENTIAL INFORMATION CONSULTANT will preserve as confidential all information pertaining to CITY's accounts, and shall only disclose such information to prospective vendors after identifying said vendors to CITY, and receiving CITY's written permission to disclose. CONSULTANT will not use CITY's account information for any purpose other than services disclosed under this Agreement. Furthermore, both CONSULTANT and CITY agree to maintain shared information in strictest confidence and shall not copy, reproduce or use for any other purpose other than the stated use in this Agreement. Neither Party shall disclose shared information without written consent from the other Party, except as allowed by law. 33. EFFECTIVE DATE IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers. This Agreement shall be effective on the date of its approval by the City Attorney. This Agreement shall expire when terminated as provided herein. CONSULTANT BFSG, LC , By: - % Jol'i pbell, President AND By: print name ITS: (circle one) Secretary/G ief Financial Offieer/Asst. Secretary — Treasurer CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California / , Administrator INITIATED AND APPROVED: ity Treasurer APPROVED AS TO FORM: �i City Attorney 3-0 Date /"/ / ®/ O 08-1622.001/28476 11 EXHIBIT A SCOPE OF SERVICES CONSULTANT will provide investment, compliance, and educational consulting services to City with respect to the Plan as outlined below: INVESTMENT SERVICES • Provide comprehensive quarterly investment analysis review of all Plan investment options, as well as additional options and asset classes to consider. • Provide a market overview addressing the major markets, indices, sectors, and the economic statistics that are affecting them. • Provide an in-depth portfolio summary, including fund and benchmark returns, style analysis and overall portfolio return. • Analyze the Plan asset allocation by fund and underlying sector. The fund lineup will also be analyzed to determine the amount of overlap that may be occurring. • Provide a detailed quantitative and qualitative examination of each mutual fund investment option within the Plan, including performance numbers versus the category and index, manager style drift, risk/return, standard deviation, Sharpe ratio, expense ratio, upside and downside capture and fund allocation. • Annually review Investment Policy Statement to ensure it is meeting the needs of the CITY and the defined contribution Plan participants. • Continually monitor the Plan's investments to ensure they are meeting the Investment Policy Statement parameters as well as the retirement needs of the participants. • Make recommendations of possible alternatives to funds when, in conjunction with the Investment Committee, it is determined a change in fund line-up is necessary. • CONSULTANT will be available four times per year, or as needed, to meet with the Investment Committee, or other people designated by the CITY, to present the quarterly reports and findings, make recommendations as to particular investments to be placed in the fund line-up and answer any questions that may arise. • CONSULTANT will act as co -fiduciary by providing investment advice on a regular basis to the Plan regarding the Plan's assets in accordance with the provisions of this Agreement. 08-1622.00/128477 1 EXHIBIT A COMPLIANCE AND ADMINISTRATION CONSULTING SERVICES Provide consulting assistance on fiduciary best -practices, including the maintenance of the Investment Policy Statement and Fiduciary Education, and at least annually provide a written summary of these activities within ninety (90) days of September 30. Provide annual benchmarking of Plan costs as compared to industry average. Provide compliance -related and legislative updates as applicable. VENDOR BENCHMARKING (conducted every 3 — 5 years) Discovery, which entails gathering data regarding CITY's current Plan, including specific needs as it relates to a provider. Conduct a review of the universe of vendors in the marketplace to determine which would be appropriate candidates for the CITY's Plan, and identify the top three (3) candidates that would meet the CITY's needs. Prepare and coordinate with CITY staff on a customized Request for Information (RFI) based on CITY's Plan specifics, demographics, and needs. RFI to be sent to a minimum of 8 — 10 providers. Compile the responses and prepare a summarized presentation incorporating a review of the vendors' recordkeeping / administration capabilities; investment offerings;- education / communication abilities; and costs. The presentation will bepresented to CITY's retirement plan committee so that the search may be narrowed to one or two finalists. Assist in coordinating in -person interviews with each of CITY's chosen finalists so that CITY may complete selection. Prepare Management Letter to quantify and summarize process findings. Document entire evaluation process for CITY's fiduciary file. Provide minutes from Deferred Compensation Committee meetings when attending and input on CITY's fiduciary responsibilities as needed. ANALYSIS OF INVESTMENT ASSET CLASSES AND ON -GOING PERFORMANCE MONITORING: CONSULTANT shall evaluate all Plan investments against appropriate peer groups and index benchmarks using several measures to quantify expenses, returns, and risk -adjusted performance. Each Plan investment option will be initially reviewed, and then reviewed quarterly. Both quantitative and qualitative criteria will be evaluated as follows: 08-1622.00/128477 2 EXHIBIT A Evaluation Methodology Quantitative Criteria 1. Trailing 3, 5 and 10 year returns — Returns shall be weighted based on the life of the fund. Recent returns will be more heavily weighted, while older returns, which could have been produced under different conditions, will be less heavily weighted. 2. Rolling 12-month returns (10 years) — Returns shall be evaluated over a rolling 12-month period to determine how consistently the fund manager out -performed his peers in a variety of market cycles. 3. Rolling 36 month returns (10 years) — Returns shall also be evaluated over a 36- month rolling period, thus putting more emphasis on performance across different cycles of the market. 4. Sharpe Ratio (36 months) — Sharpe Ratio shall be evaluated to determine the fund's overall efficiency. The Sharpe Ratio is calculated by dividing the annualized return in excess of the risk -free Treasury bill by the standard deviation for that same time frame. 5. Information Ratio — The Information Ratio shall be evaluated by taking the excess return over the fund's appropriate index and dividing it by the standard deviation. 6. Up Capture Ratio — The percentage of an index return captured during market cycles, referred to as Up Capture Ratio, shall be evaluated. 7. Down Capture Ratio — The percentage of an index return captured during down market cycles, referred to as Down Capture Ratio, shall be evaluated. 8. Style Consistence to the appropriate category — The use of three, weighted analyses ensures that the funds that are selected for the Plan continue to operate and perform as expected within their appropriate asset class. R-Squared, style return consistency, and holdings consistency shall be evaluated. 9. Expense Ratio — The expense ratio shall be compared as a percentage to the appropriate category average. Each fund shall be benchmarked to a specific market index, and fund performance will be evaluated and compared to a relevant peer group using Morningstar category classifications. Each fund will be given a peer group ranking in each criterion, shown as a percentage. The rankings for all criteria will then be averaged to give a fund its average ranking score. (Each evaluation measure requires a three-year history to ensure an accurate evaluation of the fund; therefore, any fund with less than a three-year history will not be evaluated using this method.) 08-1622.00/128477 3 EXHIBIT A CONSULTANT will then use the overall ranking score to indicate whether a fund is outperforming, performing or underperforming. An overall ranking score between 4.44% (the highest obtainable score) and 29.99% shall indicate a fund that is outperforming. A score between 30%-59.99% shall indicate a fund that is performing. A score between 60% and 95.56% (the lowest obtainable score) shall indicate a fund that is under -performing. Qualitative Criteria In addition to the above criteria, additional factors will be monitored to determine a fund's potential exposure to risk that may make it unsuitable as a retirement plan investment option. The additional factors to be monitored are: Change in fund philosophy Change in fund manager Individual holding concentrations Economic sector concentrations Performance volatility as measured by standard deviation Attribution analysis Portfolio turnover / transaction costs Manager tenure Asset base Median market capitalization Average credit quality for bond funds Average duration for bond funds 08-1622.00/128477 4 EXHIBIT A EXHIBIT "B" Payment Schedule (Fixed Fee Payment) 1. CONSULTANT shall be entitled to monthly progress payments toward the fixed fee set forth herein in accordance with the following progress and payment schedules. The fixed fee shall not exceed Twenty -Five Thousand Dollars ($25,000) annually. 2. Delivery of work product: A copy of every memorandum, letter, report, calculation and other documentation prepared by CONSULTANT shall be submitted to CITY to demonstrate progress toward completion of tasks. In the event CITY rejects or has comments on any such product, CITY shall identify specific requirements for satisfactory completion. CONSULTANT shall submit to CITY an invoice to be submitted to the deferred compensation providers for reimbursement for each monthly progress payment due. Such invoice shall: A) Reference this Agreement; B) Describe the services performed; C) Show the total amount of the payment due; D) Include a certification by a principal member of CONSULTANT's firm that the work has been performed in accordance with the provisions of this Agreement; and E) For all payments include an estimate of the percentage of work completed. Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall approve the invoice, in which event payment shall be submitted to the deferred compensation providers within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an invoice, CITY shall notify CONSULTANT in writing of the reasons for non -approval and the schedule of performance set forth in Exhibit "A" may at the option of CITY be suspended until the parties agree that past performance by CONSULTANT is in, or has been brought into compliance, or until this Agreement has expired or is terminated as provided herein. 4. Any billings for extra work or additional services authorized in advance and in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information required above, and in addition shall list the hours expended and hourly rate charged for such time. Such invoices shall be approved by CITY if the work performed is in accordance with the extra work or additional services requested, and if CITY is satisfied that the statement of hours worked and costs incurred is accurate. Such approval shall not be unreasonably withheld. Any dispute between the parties concerning payment of such an invoice shall be treated as separate and apart from the ongoing performance of the remainder of this Agreement. 08-1622.001/28478 ACORD CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDM) 4/8/2009 PRODUCER HUB INTERNATIONAL NORTHEAST 100 SUNNYSIDE BOULEVARD WOODBURY, NY 11797 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURER A: US SPECIALTY INSURANCE COMPANY INSURED FOCUS FINANCIAL PARTNERS LLC 909 THIRD AVENUE, 12TH FLOOR NEW YORK, NY 1D022 INSURER B; INSURER C: INSURER D; INSURER E: INSURER F: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BYTHE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR POLICY EFFECTIVE POLICY EXPIRATION LTR. TYPE OF INSURANCE POLICY NUMBER DATE MMIDD DATE MMIDDIYY LIMITS GENERAL LIABILITY EACH OCCURRENCE FIRE DAMAGE ANY ONE FIRE) COMhIERCIAL GENERAL LIABILITY CLAIMS MADE nOCCVR MED EXP ANYONE PERSON) PERSONAL & ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG GEN•L AGGREGATE LIMIT APPLIES PER: POLICY LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO ALL OWNED AUTOS A � ® BODILY INJURY (Per person) SCHEDULE AUTOS HIRED AUTOS 24CGRAT tyBODILY �1�J4", �� �� INJURY (Per accident) NON,OWNED AUTOS .,.,_ PROPERTY DAMAGE (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT ANY AUTO - - OTHER THAN AUTO ONLY: EACH ACCIDENT EXCESS LIABILITY) UMBRELLA EACH OCCURRENCE OCCUR 7CLAIMS MADE AGGREGATE DEDUCTIBLE RETENTION g WORKERS COMPENSATION - WC STATUTORY LIMITS OTHER E.L. EACH ACCIDENT AND E.L. DISEASE - EA EMPLOYEE EMPLOYERS'LIABILITY E.L. IS E-POLICYLIMIT A ERRORS & OMISSIONS 24MGU09A18314 1/2b/2009 1/26/2010 OCC. / AGGREGATE $10,000,000 DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESIEXCLUSIONS ADDED BY ENDORSEMENTISPECUIL PROVISIONS Focus Operating LLC; Focus Operating Holding Co; Geller Group LLC; Geller Advisory Group LLC; Focus Benefit Consulting Services LLC; Geller Consulting Group LLC; Founders Financial Network LLC; Strategic Point Holdings LLC; Strategic Point Investment Advisors LLC; Strategic Point Insurance Services LLC; Strategic Point Securities LLC; Capital Advisory Group LLC; HoyleCohen LLC; Resnick Investment Advisors LLC Sentinel Benefits Group Inc; Sentinel Insurance Agency Inc; Sentinel Pension Advisors Inc (d/b/a Sentinel Advisors); Sentinel Securities Inc; Sentinel Financial Group LLC; Sentinel/Forsberg Insurance Agency; QCM LLC; SAM Risk Management LLC; SAM Advisor Services LLC; Buckingham Asset Management LLC; Acorn insurance Agency Inc; BFSG LLC; Dion Money Management, LLC; GW & Wade LLC GW & Wade Asset Management LLC; Lara, Shull & May LLC; JFS Wealth Advisors LLC; Fidelity Independent Adviser Newsletter, LLC Greystone Financial Services (Holdings) Limited; Greystone Financial LTD; WESPAC Plan Services LLC; WESPAC Benefit & Insurance Services LLC; WESPAC Advisors LLC; R W Harris Limited; Greystone Financial Services Ltd; Greystone Wealth Management Ltd; Greystone Employee Benefit Ltd are included as Named Insureds under the policies listed above. City of Huntington Beach SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Attn: Shari Freidenrich, City Treasurer DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL 2000 Main Street IMPOSE NO OBLIGATION OR LI BILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR Huntington Beach, CA 92648-2702 EPRESENTATI _ AU OR EPRESENAT E 02/23/2009 2�:15 7145446730 LATOURETTE STATE FAR PAGE 02 CERTIFICATE OF INSURANCE I,�T.AA This certifies that ® STATE FARM FIRE AND CASUALTY COMPANY, Bloomington, Illinois ❑ STATE FARM GENERAL INSURANCE COMPANY, Bloomington, Illinois Li ❑ STATE FARM FIRE AND CASUALTY COMPANY, Aurora, Ontario ❑ STATE FARM FLORIDA INSURANCE COMPANY, Winter Haven, Florida ❑ STATE FARM LLOYDS, Dallas, Texas Insures the following policyholder for the coverages indicated below - Policyholder AFSG LLC Address of policyholder 7040 MAIN ST STE 150 iRviNE CA 92614-8207 Location of operations Description of operations The policies listed below have been issued to the policyholder for the policy periods shown. The Insurance described in these policies is subject to all the terms. exclusions. and conditions of those colicles. The limits of liability shown may have been reduced by any paid claims. POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE Effective Date Expiration Date (at beginning of policy period) Comprehensive BODILY INJURY AND 92-YG-4106-2 G Business Liability 07/08/09 01/08/09 PROPERTY DAMAGE This insurance includes: ❑ Products Completed Operations ❑ Contractual Liability Each Occurrence $ 2, 000, 000 ❑ Personal Injury ❑ Advertising Injury General Aggregate $ 4 , 000, 000 © Products — Completed $ 4 , 000, 000 ❑ Operations Aggregate POLICY PERIOD BODILY INJURY AND PROPERTY DAMAGE EXCESS LIABILI Y Effective Date ,,: Expiration Dab (Combined Single Limit) ❑ Umbrella © Other Each Occurrence $ Aggregate S POLICY PERIOD Part 1- Workers Compensation - Statutory Effective Date t Expiration Date Workers' Compensation Part II • Employers Liability and Employers Liability Each Accident $ Disease - Each Employee $ Disease - Policy Limit $ POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE Effective Date ; Expiration Daft (at beginning of policy period) THE CERTIFICATE OF INSURANCE IS NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR NEGATIVELY AMENDS, EXTENDS OR ALTERS THE COVERAGE APPROVED BY ANY POLICY DESCRIBED HEREIN. Name and Address of Certificate Holder Additional Insured: City of .8un.t..ngton Beach Attn: Shari Freidenrich, City Treasurer 2000 Main street Huntington Beach, CA 92648-2702 889.994 a.6 Printed in U S.A Rev. 05-09.2000 If any of the described policies are canceled before their expiration date, State Farm will try to mail a written notice to the oertificate holder days before cancellation. If however, we fail to mail such notice, no obligation or liability will be imposed on State Farm or its agents or representallves. ignatureofA rixedRepratentative Agent 02/24/2009 TIIIe Date Xen La Tourette Agent Name Telephone Number 714 544-3779 Agents Code Stamp Agent Code AFO Code Professional Service Contracts Purchasing Certification 1. Date: 3/16/2009 3. Department: City Treasurer 5. Name of consultant: BFSG LLC. 2. Contract Number: THE Ql2V6alj7'C2 4. Requested by: Shari L. Freidenrich 6. Attach the written statement of the specification, conditions, and other requirements for the requested services provided to solicited consultants. Exhibit A - attached with contract. 7. Amount of the contract: $75,000 8. Are sufficient funds available to fund this contract?' ® Yes ❑ No 9. Is this contract generally described on the list of professional service contracts approved by the City Council?' ❑ Yes ® No 10. Business Unit and Object Code where funds are budgeted: Paid by soft dollars from 457 Deferred Compensation vendors 11. Is this contract less than $50,000? ❑ Yes ® No 12. Does this contract fall within $50,000 and $100,000? ® Yes ❑ No 13. Is this contract over $100,000? ❑ Yes ® No (Note: Contracts requiring City Council Approval need to be signed by the Mayor and City Clerk. Make sure the appropriate signature page is attached to contract.) 14. Were formal written proposals requested from at least three available qualified consultants? ❑ Yes ® No 15. Attach list of consultants from whom proposals were requested (including a contact telephone number). N/A. This agreement is exempt from the bid process. Meets Municipal Code 3.03.080 (b) - Other Interagency Agreement Policy. 16. Attach proposed scope of work. See Exhibit A 17. Attach proposed payment schedule. See Exhibit B epartme t Head Signature CH#REYAMADRIL al,Services Manager 1. If the answer to this question is "No," the contract will require approval from the City Council. BOARD MEETING DATE: January 4, 2008 AGENDA NO. 4 TITLE: Execute Contract for Deferred Compensation Plan Consultant Services SYNOPSIS: AQMD sponsors an IRS -approved 457 Deferred Compensation for its employees. State law governs the fiduciary requirement for the operation and investment of 457 plans sponsored by governmental entities. This action is to execute a contract with Benefit Funding Services Group for consultant services focused on assisting staff in developing a formal Deferred Compensation Committee Charter and Investment Policy Statement; and in providing analysis of plan assets and investment options, employee education and administrative support. These consultant services will be funded on a cost reimbursement basis by AQMD's 457 Plan vendor (The Hartford) as provided for under the Internal Revenue Code. COMMITTEE Administrative, December 14, 2007, Recommended for Approval *RECOMMENDED ACTION: Authorize the Executive Officer to execute a contract with Benefit Funding Services Group to provide 457 Deferred Compensation Plan Consultant Services at an annual cost of $30,000. Barry R. Wallerstein, D.Env. Executive Officer PHPAg Background AQMD sponsors and administers a 457 Deferred Compensation Plan for its employees. State law governs the fiduciary requirement for the operation and investment of 457 Plans sponsored by governmental entities. Subsections (a), (b) and (c) of Article XVI, Section 17, of the California Constitution contain the provisions governing the fiduciary duties for the administration of public pension and retirement systems. Since 457 Plans are deferred compensation plans for state and local governments, a 457 Plan satisfies the definition of public pension and retirement funds for purposes of the California Constitution. The AQMD Governing Board serves a fiduciary role subject to the duties and obligations under Article XVI, Section 17. To meet its fiduciary responsibilities, the Governing Board, at the time it established AQMD's 457 Plan, also established a Deferred Compensation Committee to oversee the administration of the Plan. The current committee is composed of the District Counsel, Chief Financial Officer, Assistant Deputy Executive Officer/Administration and a Human Resources Manager. An RFP for 457 Plan Consulting Services was issued on October 5, 2007. These services are for a period of three years with the option to extend the services for two additional one-year renewals. Outreach In accordance with AQMD's Procurement Policy and Procedure, a public notice advertising the RFP/RFQ and inviting bids was published in the Los Angeles Times, the Orange County Register, the San Bernardino Sun, and Riverside County Press Enterprise newspapers to leverage the most cost-effective method of outreach to the entire South Coast Basin. Additionally, potential bidders may have been notified utilizing AQMD's own electronic listing of certified minority vendors. Notice of the RFP/RFQ have been mailed to the Black and Latino Legislative Caucuses and various minority chambers of commerce and business associations, the State of California Contracts Register website, and placed on the Internet at AQMD's Web site (http://www.agmd.gov. Information was also available on AQMD's bidder's 24-hour telephone message line (909) 396-2724. Proposal Five bids were received in response to the RFP when final bidding closed at 1:00 p.m. on November 9, 2007. The proposals were reviewed by the Deferred Compensation Committee. Two of the bidders did not meet the minimal technical score and were disqualified. -2- The evaluation results for the remaining three bidders are: Bidder Technical Score Cost Score Additional Points * Total Points Bid Amount Overall) Rank Benefit Funding Services Group 64.3 28 5 97.3 $30,000 1 SST Benefits Consulting 56.8 30 10 96.8 $28,100 2_ Mercer 59.5 19 78.5 $38,330 3 * Small Business/Local Business Points Resource Impacts These consultant services will be funded on a cost reimbursement basis by the 457 Plan (The Hartford) as provided for under the Internal Revenue Code. -3- BOARD MEETING DATE: October 5, 2007 AGENDA NO. 15 TITLE: Issue RFP for Deferred Compensation Plan Consultant Services SYNOPSIS: AQMD sponsors an IRS -approved 457 deferred compensation program for its employees. State law governs the fiduciary requirement for the operation and investment of 457 plans sponsored by governmental entities. AQMD staff is in the process of reviewing and updating the 457 program to ensure optimal plan design and regulatory compliance. This action is to issue an RFP for consultant services focused on assisting staff in developing a formal Deferred Compensation Committee Charter and Investment Policy Statement; and in providing analysis of plan assets and investment options, employee education and administrative support. These consultant services will be funded on a cost reimbursement basis by AQMD's 457 plan vendor (The Hartford) as provided for under the Internal Revenue Code. COMMITTEE Administrative, September 14, 2007, Recommended for Approval RECOMMENDED ACTION: Approve release of the attached Request for Proposals #P2008-06 for 457 Deferred Compensation Plan Consultant Services funded on a cost reimbursement basis by The Hartford. Barry R. Wallerstein, D.Env. Executive Officer Background AQMD sponsors and administers a 457 deferred compensation program for its employees. State law governs the fiduciary requirement for the operation and investment of 457 plans sponsored by governmental entities. Subsections (a), (b) and (c) of Article XVI, Section 17, of the California Constitution contain the provisions governing the fiduciary duties for the administration of public pension and retirement systems. Since 457 plans are deferred compensation plans for state and local governments, a 457 plan satisfies the definition of public pension and retirement funds for purposes of the California Constitution. This means that the Governing Board serves a fiduciary role subject to the duties and obligations under Article XVI, Section 17. To meet its fiduciary responsibilities, the Governing Board, at the time it established AQMD's 457 Plan also established a Deferred Compensation Committee to oversee the administration of the Plan. The current committee is composed of the District Counsel, Chief Financial Officer, Assistant Deputy Executive Officer/Administration and a Human Resources Manager. Request for Proposals This action is to issue an RFP for consultant services focused on assisting staff in the discharge of the agency's fiduciary responsibilities, which include development of a formal Deferred Compensation Committee Charter and Investment Policy Statement; and in providing ongoing analysis of plan assets and investment options, employee education and administrative support. Bid Evaluation The contractor will be selected through an open bid process according to AQMD's Consultant Selection Policy and Proposals. It is anticipated that a single award will be made from this solicitation. Outreach In accordance with AQMD's Procurement Policy and Procedure, a public notice advertising the RFP/RFQ and inviting bids will be published in the Los Angeles Times, the Orange County Register, the San Bernardino Sun, and Riverside County Press Enterprise newspapers to leverage the most cost-effective method of outreach to the entire South Coast Basin. Additionally, potential bidders may be notified utilizing AQMD's own electronic listing of certified minority vendors. Notice of the RFP/RFQ will be mailed to the Black and Latino Legislative Caucuses and various minority chambers of commerce and business associations, the State of California Contracts Register website, and placed on the Internet at AQMD's Web site (http://www.agmd.aov where it can be viewed by making menu selections "Inside AQMD"/"Employment and Business Opportunities"/"Business Opportunities" or by going directly to http://www.agmd.g_ov/rfp/index.html). Information is also available on AQMD's bidder's 24-hour telephone message line (909) 39+6-2724. -2- Benefits to AQMD A recently completed Fiduciary Structure and Cost Assessment review of the AQMD plan established that the plan's current mix of investment options performs well, both in earnings and costs, when benchmarked to other plans. The proposed consultant services will assist AQMD in optimizing its 457 program, bringing it up to date with current fiduciary and administrative practices, and ensuring regulatory compliance. Resource Impacts These consultant services will be funded on a cost reimbursement basis by the 457 plan vendor (The Hartford) as provided for under the Internal Revenue Code. Attachment RFP #P2008-06 - Deferred Compensation Plan Consultant Services -3- This Contract consists of 9 pages. 1. PARTIES - The parties to this Contract are the South Coast Air Quality Management District (referred to here as "AQMD") whose address is 21865 Copley Drive, Diamond Bar, California 91765-4178, and Benefit Funding Services Group (referred to here as "CONTRACTOR") whose address is 2040 Main Street, Suite 150, Irvine, California 92614, 2. RECITALS A. AQMD is the local agency with primary responsibility for regulating stationary source air pollution in the South Coast Air Basin in the State of California. AQMD is authorized to enter into this Contract under California Health and Safety Code Section 40489. AQMD desires to contract with CONTRACTOR for services described in Attachment 1 - Statement of Work, attached here and made a part here by this reference. CONTRACTOR warrants that it is well -qualified and has the experience to provide such services on the terms set forth here. B. CONTRACTOR is authorized to do business in the State of California and attests that it is in good tax standing with the California Franchise Tax Board. C. All parties to this Contract have had the opportunity to have this Contract reviewed by their attorney. D. CONTRACTOR agrees to obtain the required licenses, permits, and all other appropriate legal authorizations from all applicable federal, state and local jurisdictions and pay all applicable fees. 3. PERFORMANCE REQUIREMENTS A. CONTRACTOR warrants that it holds all necessary and required licenses and permits to provide these services. CONTRACTOR further agrees to immediately notify AQMD in writing of any change in its licensing status. B. CONTRACTOR shall submit reports to AQMD as outlined in Attachment 1 - Statement of Work. All reports shall be submitted in an environmentally friendly format; recycled paper; stapled, not bound; black and white, double -sided print; and no three-ring, spiral, or plastic binders or cardstock covers. AQMD reserves the right to review, comment, and request changes to any report produced as a result of this Contract. C. CONTRACTOR shall perform all tasks set forth in Attachment 1 - Statement of Work, and shall not engage, during the term of this Contract, in any performance of work that is in direct or indirect conflict with duties and responsibilities set forth in Attachment 1- Statement of Work. D. CONTRACTOR shall be responsible ;for., exercising the degree of skill and care customarily required by accepted professional practices and procedures subject to AQMD's final approval which AQMD will not unreasonably withhold. Any costs incurred due to the failure to meet the foregoing standards, or otherwise defective services which require re -performance, as directed by AQMD, shall be the responsibility of CONTRACTOR, CONTRACTOR's failure to achieve the performance goals and objectives stated in Attachment 1- Statement of Work, is not a basis for requesting re -performance unless work conducted by CONTRACTOR is deemed by AQMD to have failed the foregoing standards of performance. Contract No, 08197 Standard E. CONTRACTOR shall ensure, through its contracts with any subcontractor(s) that employees and agents performing under this Contract shall abide by the requirements set forth in this clause. 4. TERM - The term of this Contract is from January 2, 2008 to December 31, 2010, unless further extended by amendment of this Contract in writing, TERMINATION A. In the event any party fails to comply with any term or condition of this Contract, or fails to provide services in the manner agreed upon by the parties, including, but not limited to, the requirements of Attachment 1 — Statement of Work, this failure shall constitute a breach of this Contract. The non -breaching party shall notify the breaching party that it must cure this breach or provide written notification of its intention to terminate this contract, Notification shall be provided in the manner set forth in Clause 10. The non -breaching party reserves all rights under law and equity to enforce this contract and recover damages. B. AQMD reserves the right to terminate this Contract, in whole or in part, without cause, upon thirty (30) days' written notice. Once such notice has been given, CONTRACTOR shall, except as and to the extent or directed otherwise by AQMD, discontinue any Work being performed under this Contract and cancel any of CONTRACTOR's orders for materials, facilities, and supplies in connection with such Work, and shall use its best efforts to procure termination of existing subcontracts upon terms satisfactory to AQMD. Thereafter, CONTRACTOR shall perform only such services as may be necessary to preserve and protect any Work already in progress and to dispose of any property as requested by AQMD. C. CONTRACTOR shall be paid in accordance with this Contract for all Work performed before the effective date of termination under Clause 5.13. Before expiration of the thirty (30) days' written notice, CONTRACTOR shall promptly deliver to AQMD all copies of documents and other information and data prepared or developed by CONTRACTOR under this Contract with the exception of a record copy of such materials, which may be retained by CONTRACTOR. 6. INSURANCE A. CONTRACTOR shall furnish evidence to AQMD of workers' compensation insurance for each of its employees, in accordance with either California or other states' applicable statutory requirements prior to commencement of any work on this Contract. B. CONTRACTOR shall furnish evidence to AQMD of general liability insurance with a limit of at least $1,000,000 per occurrence, and $2,000,000 in a general aggregate prior to commencement of any work on this Contract. AQMD shall be named as an additional insured on any such liability policy, and thirty (30) days written notice prior to cancellation of any such insurance shall be given by CONTRACTOR to AQMD. C. CONTRACTOR shall furnish evidence to AQMD of automobile liability insurance with limits of at least $100,000 per person and $300,000 per accident for bodily injuries, and $50,000 in property damage, or $1,000,000 combined single limit for bodily injury or property damage, prior to commencement of any work on'this Contract. AQMD shall be named as an additional insured on any such liability policy, and thirty'(30)'days written notice prior to cancellation of any such insurance shall be given by CONTRACTOR to:AQMD. D. CONTRACTOR shall furnish evidence to AQMD of Professional Liability Insurance with an aggregate limit of not less than $5,000,000, Contract No. 08197 Standard E. If CONTRACTOR fails to maintain the required insurance coverage set forth above, AQMD reserves the right either to purchase such additional insurance and to deduct the cost thereof from any payments owed to CONTRACTOR or terminate this Contract for breach. F. All insurance certificates should be mailed to: AQMD Risk Management, 21865 Copley Drive, Diamond Bar, CA 91765-4178. The AQMD Contract Number must be included on the face of the certificate. G. CONTRACTOR must provide updates on the insurance coverage throughout the term of the Contract to ensure that there, is no break in coverage during the period of contract performance. Failure to provide evidence of current coverage shall be grounds for termination for breach of Contract. 7. INDEMNIFICATION - CONTRACTOR agrees to hold harmless, indemnify, and defend AQMD, its officers, employees, agents, representatives, and successors -in -interest against any and all loss, damage, cost, or expenses which AQMD, its officers, employees, agents, representatives, and successors -in -interest may incur or be required to pay by reason of any injury or property damage caused or incurred by CONTRACTOR, its employees, subcontractors, or agents as a result of the performance of this Contract. 8. PAYMENT A. AQMD shall pay CONTRACTOR a total amount not -to -exceed Ninety Thousand Dollars ($90,000) for work performed under this Contract. This amount reflects an annual fixed price amount of Thirty Thousand Dollars ($30,000) for each of the 2008, 2009 and 2010 calendar years. The total contract amount shall be reimbursed to the AQMD by its 457 Deferred Compensation Plan Administrator, The Hartford. Payment shall be made by AQMD to CONTRACTOR within thirty (30) days after approval by AQMD of an invoice prepared and furnished by CONTRACTOR showing services performed and referencing tasks and deliverables as shown in Attachment 1 - Statement of Work, and the amount ;of charge claimed. Each invoice must be prepared in duplicate, on company letterhead, and' list AQMD's Contract number, period covered by invoice, and CONTRACTOR's social security number or Employer Identification Number and submitted to: South Coast Air Quality Management District, Attn: Patrick H. Pearce, Chief Financial Officer. B. AQMD reserves the right to disallow charges when the invoiced services are not performed satisfactorily in AQMD sole judgment. INTELLECTUAL PROPERTY RIGHTS - Title and full ownership rights to any software, documents, or reports developed under this Contract shall at all times remain with AQMD. Such material is agreed to be AQMD proprietary information. A. Rights of Technical Data - AQMD shall have the unlimited right to use technical data, including material designated as a trade secret, resulting from the performance of services by CONTRACTOR under this Contract. CONTRACTOR shall have the right to use technical data for its own benefit. B. Copyright - CONTRACTOR agrees to grant AQMD a royalty -free, nonexclusive, irrevocable license to produce, translate, publish, use, and dispose of all copyrightable material first produced or composed in the performance of this Contract. 3 Contract No. 08197 Standard 10. NOTICES - Any notices from either party to the other shall be given in writing to the attention of the persons listed below, or to other such addresses or addressees as may hereafter be designated in writing for notices by either party to the other. Notice shall be given by certified, express, or registered mail, return receipt requested, and shall be effective as of the date of receipt indicated on the return receipt card. AQMD: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: Patrick H. Pearce, Chief Financial Officer CONTRACTOR: Benefit Funding Services Group 2040 Main Street, Suite 150 Irvine, California 92614 Attn: John Campbell 11. EMPLOYEES OF CONTRACTOR A. AQMD reserves the right to review the resumes of any of CONTRACTOR employees, and/or any subcontractors selected to perform the work specified here and to disapprove CONTRACTOR choices, CONTRACTOR warrants that it will employ no subcontractor without written approval from AQMD. CONTRACTOR shall be responsible for the cost of regular pay to its employees, as well as cost of vacation, vacation replacements, sick leave, severance pay and pay for legal holidays. B. CONTRACTOR, its officers, employees, agents, representatives or subcontractors shall in no sense be considered employees or agents of AQMD, nor shall CONTRACTOR, its officers, employees, agents, representatives or subcontractors be entitled to or eligible to participate in any benefits, privileges, or plans, given or extended by AQMD to its employees. C. AQMD requires CONTRACTOR to be in compliance with all state and federal laws and regulations with respect to CONTRACTOR's employees throughout the term of this Contract, including state minimum wage laws and OSHA requirements. 12. CONFIDENTIALITY - It is expressly understood and agreed that AQMD may designate in a conspicuous manner the information which CONTRACTOR obtains from AQMD as confidential. CONTRACTOR agrees to: A. Observe complete confidentiality with respect to such information, including without limitation, agreeing not to disclose or otherwise permit access to such information by any other person or entity in any manner whatsoever, except that such disclosure or access shall be permitted to employees or subcontractors of CONTRACTOR requiring access in fulfillment of the services provided under this Contract. B. Ensure that CONTRACTOR's officers, employees, agents, representatives, and independent contractors are informed of the confidential nature of such information and to assure by agreement or otherwise that they are prohibited from copying or revealing, for any purpose whatsoever, the contents of such information or any part thereof, or from taking any action otherwise prohibited under this clause. Contract No. 08197 Standard C. Not use such information or any part thereof in the performance of services to others or for the benefit of others in any form whatsoever whether gratuitously or for valuable consideration, except as permitted under this Contract. D. Notify AQMD promptly and in writing of the circumstances surrounding any possession, use, or knowledge of such information or any part thereof by any person or entity other than those authorized by this clause. E. Take at CONTRACTOR expense, but at AQMD's option and in any event under AQMD's control, any legal action necessary to prevent unauthorized use of such information by any third party or entity which has gained access to such information at least in part due to the fault of CONTRACTOR. F. Take any and all other actions necessary or desirable to assure such continued confidentiality and protection of such information. G. Prevent access to such information by any person or entity not authorized under this Contract. H. Establish specific procedures in order to fulfill the obligations of this clause. I. Notwithstanding the above, nothing herein is intended to abrogate or modify the provisions of Government Code Section 6250 et.seq. (Public Records Act). 13. PUBLICATION A. AQMD shall have the right of prior written approval of any document which shall be disseminated to the public by CONTRACTOR in which CONTRACTOR utilized information obtained from AQMD in connection with, performance iun.der this Contract B. Information, data, documents; or reports,' developed by CONTRACTOR for AQMD, pursuant to this Contract, shall be part of AQMD public record unless otherwise indicated. CONTRACTOR may use or publish, at its own expense, such information provided to AQMD, The following acknowledgment of support and disclaimer must appear in each publication of materials, whether copyrighted or not, based upon or developed under this Contract. "This report was prepared as a result of work sponsored, paid for, in whole or in part, by the South Coast Air Quality Management District (AQMD). The opinions, findings, conclusions, and recommendations are those of the author and do not necessarily represent the views of AQMD. AQMD, its officers, employees, contractors, and subcontractors make no warranty, expressed or implied, and assume no legal liability for the information in this report. AQMD has not approved or disapproved this report, nor has AQMD passed upon the accuracy or adequacy of the information contained herein." C. CONTRACTOR shall inform its officers, employees, and subcontractors involved in the performance of this Contract of the restrictions contained herein and require compliance with the above. 14. NON-DISCRIMINATION - In the performance of this Contract, CONTRACTOR shall not discriminate in recruiting, hiring, promotion, demotion, or, termination practices on the basis of race, religious creed, color, national origin, ancestry, sex, age, or physical or mental disability and shall comply with the provisions of the California Fair. ;Employment & Housing Act (Government Code Section 12900 et seq.), the Federal Civil Rights Act of 1964 (P.L. 88-352) and all amendments thereto, Executive Order No. 11246 (30 Federal Register 12319), and all administrative rules and regulations issued pursuant Contract No. 08197 Standard to said Acts and Order. CONTRACTOR shall likewise require each subcontractor to comply with this clause and shall include in each such subcontract language similar to this clause. 15. SOLICITATION OF EMPLOYEES - CONTRACTOR expressly agrees that CONTRACTOR shall not, during the term of this Contract, nor for a period of six months after termination, solicit for employment, whether as an employee or independent contractor, any person who is or has been employed by AQMD during the term of this, Contract without the consent of AQMD. 16. PROPERTY AND SECURITY -:Without limiting CONTRACTOR obligations with regard to security, CONTRACTOR shall comply with all the rules and regulations established by AQMD for access to and activity in and around AQMD premises. 17. ASSIGNMENT - The rights granted hereby may not be assigned, sold, licensed, or otherwise transferred by either party without the prior written consent of the other, and any attempt by either party to do so shall be void upon inception. 18. NON -EFFECT OF WAIVER - The failure of CONTRACTOR or AQMD to insist upon the performance of any or all of the terms, covenants, or.conditions of this Contract, or failure to exercise any rights or remedies hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants, or conditions, or of the future exercise of such rights or remedies, unless otherwise provided for herein. 19. ATTORNEYS' FEES - In the event any action is filed in connection with the enforcement or interpretation of this Contract, each party shall bear its own attorneys' fees and costs. 20. FORCE MAJEURE - Neither AQMD nor CONTRACTOR shall be liable or deemed to be in default for any delay or failure in performance under this Contractor interruption of services resulting, directly or indirectly, from acts of God, civil or; military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, materials; labor, or transportation, or any similar cause beyond the reasonable control of AQMD or CONTRACTOR. 21. SEVERABILITY - In the event that any one or more of the provisions contained in this Contract shall for any reason be held to be unenforceable in any respect by a court of competent jurisdiction, such holding shall not affect any other provisions of this Contract, and the Contract shall then be construed as if such unenforceable provisions are not a part hereof. 22. HEADINGS - Headings on the clauses of this Contract are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Contract. 23. DUPLICATE EXECUTION - This Contract is executed in duplicate. Each signed copy shall have the force and effect of an original, 6 Contract No. 08197 Standard 24. GOVERNING LAW - This Contract shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California. Venue for resolution of any disputes under this Contract shall be Los Angeles County, California. 25. CITIZENSHIP AND ALIEN STATUS A. CONTRACTOR warrants that it fully complies with all laws regarding the employment of aliens and others, and that its employees performing services hereunder meet the citizenship or alien status requirements contained in federal and state statutes and regulations including, but not limited to, the Immigration Reform and Control Act of 1986 (P.L. 99-603). CONTRACTOR shall obtain from all covered employees performing services hereunder all verification and other documentation of employees' eligibility status required by federal statutes and regulations as they currently exist and as they may be hereafter amended. CONTRACTOR shall have a continuing obligation to verify and document the continuing employment authorization and authorized alien status of employees performing services under this' Contract to insure continued compliance with all federal statutes and regulations. B. Notwithstanding paragraph A above, CONTRACTOR, in the performance of this Contract, shall not discriminate against any person in violation of 8 USC Section 1324b, C. CONTRACTOR shall retain such documentation for all covered employees for the period described by law. CONTRACTOR shall indemnify, defend, and hold harmless AQMD, its officers and employees from employer sanctions and other liability which may be assessed against CONTRACTOR or AQMD, or both in connection with any alleged violation of federal statutes or regulations pertaining to the eligibility for employment of persons performing services under this Contract. 26, OPTION TO EXTEND THE TERM OF THE CONTRACT - AQMD reserves the right to extend the contract for a two (2) one-year periods commencing January 1, 2011. In the event that AQMD elects to extend the contract, a written notice of its intent to extend the contract shall be provided to CONTRACTOR no later than thirty (30) days prior to Contract expiration. 27. APPROVAL OF SUBCONTRACT A. If CONTRACTOR intends to subcontract a portion of the work under this Contract, written approval of the. terms of the proposed subcontract(s) shall be obtained from AQMD's Executive Officer or designee prior to execution of the subcontract. No subcontract charges will be reimbursed unless such approval has been obtained. B. Any material changes to the subcontract(s) that affect the scope of work, deliverable schedule, and/or cost schedule shall also require the written approval of the Executive Officer or designee prior to execution. C. The sole purpose of AQMD's review is to insure that AQMD's contract rights have not been diminished in the subcontractor agreement. AQMD shall not supervise, direct, or have control over, or be responsible for, subcontractor's means, methods, techniques, work sequences or procedures or for the safety precautions and programs incident thereto, or for any failure of subcontractor to comply with any local, state, or federal laws, or rules or regulations. 28. ENTIRE CONTRACT - This Contract represents the entire agreement between the parties hereto related to CONTRACTOR providing services to AQMD and there are no understandings, Contract No. 08197 Standard representations, or warranties of any kind except as expressly set forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any party unless in writing and signed by the party against whom enforcement of such waiver, alteration, or modification is sought. IN WITNESS WHEREOF, the parties to this Contract have caused this Contract to be duly executed on their behalf by their authorized representatives. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT BENEFIT FUNDING SERVICES GROUP M R. Watlerstein, D,EW. Executive Date: APPROVED AS TO FORM: Kurt R. Wiese, District Counsel t BY: --- 1.�Standard Boilerplaie Last U% dated. 5 September 2006 8 ATTACHMENT 1 STATEMENT OF WORK BFSG, in coordination with AQMD's Deferred Compensation Committee, shall provide advice, analysis and administrative services to AQMD regarding the administration of its 457 Deferred Compensation plan. Services will include, at a minimum: 1. Development of a formal AQMD Deferred Compensation Committee Charter, advise Committee on actions necessary for discharge of its fiduciary duties; 2. Development, monitoring and annual review of a 457 Investment Policy Statement; 3. Quarterly investment reviews, providing recommendations and guidance on plan design and compliance; 4. Fund analysis (quantitative and qualitative) and research of existing and alternate fund options and recommendations regarding the optimum mix of investment options; 5. Annual cost analysis benchmarking and annual report to AQMD Governing Board; 6. Assistance in negotiations with the plan vendor to determine revenue recapture options available to AQMD; 7. Participant education/communication, up to five (5) meeting days annually, targeted for specific employee demographic groups; 8. Quarterly investment reports, preparation/formalization of Committee presentations and administrative support (agendas and minutes) for quarterly Committee investment review meetings; and 9. Records retention of all decisions made by the Committee to document monitoring procedures. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT REQUEST FOR PROPOSALS Deferred Compensation Plan Consultant Services #P2008-06 The South Coast Air Quality Management District (AQMD) requests proposals for the following purpose according to terms and conditions attached. In the preparation of this Request for Proposals (RFP) the words "Proposer," "Contractor," and "Consultant" are used interchangeably. PURPOSE The purpose of this Request for Proposals (RFP) is to solicit qualified firms to represent and advise the South Coast Air Quality Management District on its administration of its 457 Deferred Compensation program. Consultant will provide advice regarding plan compliance with applicable federal and State laws; analysis and recommendations regarding investment plan performance, participant cost and plan/investment management; and administrative support to the Deferred Compensation Committee. Total funding for this RFP will be from moneys set aside and held by the 457 plan vendor in a separate trust account established to pay for AQMD's ongoing qualified expenses to administer its 457 plan. The current estimate of available funding in the trust reimbursement/credit account is approximately $45,000 annually. The term of the contract will be three years, beginning approximately January 2008, with options for two additional one-year renewals. INDEX - The following are contained in this RFP: Section I Background/Information Section II Contact Person Section III Schedule of Events Section IV Participation in the Procurement Process Section V Statement of Work/Schedule of Deliverables Section VI Required Qualifications Section VII Proposal Submittal Requirements Section VIII Proposal Submission Section IX Proposal Evaluation/Contractor Selection Criteria Section X Draft Contract Attachment A - Certifications and Representations SECTION I: BACKGROUND/INFORMATION The AQMD is a regional air quality regulatory agency with jurisdiction in a four -county area of Southern California, including metropolitan Los Angeles. AQMD's major areas of activities include developing rules and regulations to reduce air pollution, monitoring and analyzing air quality data from stations throughout the region, reviewing permits to construct and operate for facilities which emit air pollution, and inspecting commercial and industrial facilities for compliance with AQMD, state, and federal rules and regulations. AQMD employs approximately 800 scientific, technical, and administrative support staff, and has a budget of $125.5 million for Fiscal Year 2007-08. AQMD offers its employees a 457 Deferred Compensation program, which currently has 748 participants and assets of approximately $80 million. SECTION II: CONTACT PERSON: Questions regarding the content or intent of this RFP or on procedural matters should be addressed to: Patrick Pearce Chief Financial Officer South Coast AQMD 21865 Copley Drive Diamond Bar, CA 91765-4178 (909) 396-2828 SECTION III: SCHEDULE OF EVENTS October 5, 2007 RFP Released November 9, 2007 - Proposals Due — No Later Than 1:00 p.m. November 13-16, 2007 Proposal Evaluations November 28, 2007 Interviews, if required January 4, 2008 Governing Board Approval January 2008 Anticipated Contract Execution SECTION IV: PARTICIPATION IN THE PROCUREMENT PROCESS A. It is the policy of the South Coast Air Quality Management District to ensure that all businesses including minority business enterprises, women business enterprises, disabled veteran business enterprises and small businesses have a fair and equitable opportunity to compete for and participate in AQMD contracts. B. Defi nitions: The definition of minority or women business enterprise set forth below is included for purposes of determining compliance with the affirmative steps requirement described in Paragraph F below on procurements funded in whole or in part with EPA grant funds which involve the use of subcontractors. The definition provided for disabled veteran business enterprise, local business, small business enterprise, low -emission vehicle business and off-peak hours delivery business are provided for purposes of determining eligibility for point or cost considerations in the evaluation process. 1. "Minority -or -women business enterprise" as used in this policy means a business enterprise that meets all the following criteria: a. a business that is at least 51 percent owned by one or more minority persons or women, or in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more minority persons or women. b. a business whose management and daily business operations are controlled by one or more minority persons or women. c. a business which is a sole proprietorship, corporation, or partnership with its primary headquarters office located in the United States, which is not a branch or subsidiary of a foreign corporation, foreign firm, or other foreign -based business. 2. "Minority person" for purposes of this policy, means a Black American, Hispanic American, Native American (including American Indian, Eskimo, Aleut, and Native Hawaiian), Asian -Indian American (including a person whose origins are from India, Pakistan, and Bangladesh), Asian -Pacific American (including a person whose origins are from Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the United States Trust Territories of the Pacific, Northern Marianas, Laos, Cambodia, and Taiwan). 3. "Disabled veteran" as used in this policy is a United States military, naval, or air service veteran with at least 10 percent service -connected disability who is a resident of California. 4. "Disabled veteran business enterprise" as used in this policy means a business enterprise that meets all of the following criteria: a. is a sole proprietorship or partnership of which is at least 51 percent owned by one or more disabled veterans or, in the case of a publicly owned business, at least 51 percent of its stock is owned by one or more disabled veterans; a subsidiary which is wholly owned by a parent corporation but only if at least 51 percent of the voting stock of the parent corporation is owned by one or more disabled veterans; or a joint venture in which at least 51 percent of the joint venture's management and control and earnings are held by one or more disabled veterans. b. the management and control of the daily business operations are by one or more disabled veterans. The disabled veterans who exercise management and control are not required to be the same disabled veterans as the owners of the business. C. is a sole proprietorship, corporation, or partnership with its primary headquarters office located in the United States, which is not a branch or subsidiary of a foreign corporation, firm, or other foreign -based business. 5. "Local business" as used in the Procurement Policy and Procedure means a company that has an ongoing business within the boundaries of the South Coast AQMD at the time of bid application and performs 90% of the work related to the contract within the boundaries of the AQMD and satisfies the requirements of Paragraph H below. 6. "Small business" as used in this policy means a business that meets the following criteria: a. 1) an independently owned and operated business; 2) not dominant in its field of operation; 3) together with affiliates is either: A service, construction, or non -manufacturer with 100 or fewer employees, and average annual gross receipts of ten million dollars ($10,000,000) or less over the previous three years, or • A manufacturer with 100 or fewer employees. b. Manufacturer means a business that is both of the following: 1) Primarily engaged in the chemical or mechanical transformation of raw materials or processed substances into new products. 2) Classified between Codes 2000 to 3999, inclusive, of the Standard Industrial Classification (SIC) Manual published by the United States Office of Management and Budget, 1987 edition. 7. "Joint ventures" as defined in this policy pertaining to certification means that one party to the joint venture is a DVBE and owns at least 51 percent of the joint venture. 8. "Low -Emission Vehicle Business" as used in this policy means a company or contractor that uses low -emission vehicles in conducting deliveries to the AQMD. Low - emission vehicles include vehicles powered by electric, compressed natural gas (CNG), liquefied natural gas (LNG), liquefied petroleum gas (LPG), ethanol, methanol, hydrogen and diesel retrofitted with particulate matter (PM) traps. 9. "Off -Peak Hours Delivery Business" as used in this policy means a company or contractor that commits to conducting deliveries to the AQMD during off-peak traffic hours defined as between 10:00 a.m. and 3:00 p.m. C. Under Request for Quotations (RFQ), DVBEs, DVBE business joint ventures, small businesses, and small business joint ventures shall be granted a preference in an amount equal to 5% of the lowest cost responsive bid. Low -Emission Vehicle Businesses shall be granted a preference in an amount equal to 5 percent of the lowest cost responsive bid. Off -Peak Hours Delivery Businesses shall be granted a preference in an amount equal to 2 percent of the lowest cost responsive bid. Local businesses (if the procurement is not funded in whole or in part by EPA grant funds) shall be granted a preference in an amount equal to 2% of the lowest cost responsive bid. D. Under Request for Proposals, DVBEs, DVBE joint ventures, small businesses, and small business joint ventures shall be awarded ten (10) points in the evaluation process. A non- DVBE or large business shall receive seven (7) points for subcontracting at least twenty- five (25%) of the total contract value to a DVBE and/or small business. Low -Emission Vehicle Businesses shall be awarded five (5) points in the evaluation process. On procurements which are not funded in whole or in part by EPA grant funds local businesses shall receive five (5) points. Off -Peak Hours Delivery Businesses shall be awarded two (2) points in the evaluation process. E. AQMD will ensure that discrimination in the award and performance of contracts does not occur on the basis of race, color, sex, national origin, marital status, sexual preference, creed, ancestry, medical condition, or retaliation for having filed a discrimination complaint in the performance of AQMD contractual obligations. F. AQMD requires Contractor to be incompliance with all state and federal laws and regulations with respect to its employees throughout the term of any awarded contract, including state minimum wage laws and OSHA requirements. G. When contracts are funded in whole or in part by EPA grant funds and if subcontracts are to be let, the Contractor must comply with the steps listed below, which demonstrate a good faith effort to solicit minority and women owned enterprises. Contractor shall submit a certification signed by an authorized official affirming compliance with the steps below at the time of proposal submission. The AQMD reserves the right to request documentation demonstrating compliance with these steps prior to contract execution. 1. Place qualified small -and -minority businesses and women's business enterprises on solicitation lists; 2. Ensure that small -and -minority businesses, and women's business enterprises are solicited whenever they are potential sources including advertising at least ten days in advance of the bid in a variety of media directed to minority -and women -owned business audiences; 3. Divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small -and -minority business, and women's business enterprises; 4. Establish delivery schedules, where requirements permit, which encourage participation by small -and -minority business, and women's business enterprises; and 5. Use the services and assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce. H. To the extent that any conflict exists between this policy and any requirements imposed by federal and state law relating to participation in a contract by a certified MBE/WBE/DVBE as a condition of receipt of federal or state funds, the federal or state requirements shall prevail. When contracts are not funded in whole or in part by EPA grant funds, a local business preference will be awarded. For such contracts that involve the purchase of commercial off -the -shelf products, local business preference will be given to suppliers or distributors of commercial off -the -shelf products who maintain an ongoing business within the geographical boundaries of the AQMD. However, if the subject matter of the RFP or RFQ calls for the fabrication or manufacture of custom products, only companies performing 90% of the manufacturing or fabrication effort within the geographical boundaries of the AQMD shall be entitled to the local business preference. J. In compliance with federal fair share requirements set forth in 40 CFR 35.6580, the AQMD shall establish a fair share goal annually for expenditures covered by its procurement policy. SECTION V: STATEMENT OF WORK/SCHEDULE OF DELIVERABLES A. Statement of Work Contractor, in coordination with AQMD's Deferred Compensation Committee, shall provide advice, analysis and administrative services to AQMD regarding the administration of its 457 Deferred Compensation plan. Services will include, at a minimum: 1. Development of a formal AQMD Deferred Compensation Committee Charter; 2. Development, monitoring and annual review of a 457 Investment Policy Statement; 3. Assistance in negotiations with the plan vendor to determine revenue recapture options available to AQMD; 4. Fund analysis to review existing and alternate fund options and recommendations regarding the optimum mix of investment options; 5. Providing participant education targeted for specific employee demographic groups; 6. Administrative support to quarterly investment review meetings; and 7. Records retention of all decisions made by the Committee to document monitoring procedures. SECTION VI: REQUIRED QUALIFICATIONS A. Firms proposing to bid on this proposal must have a background and experience in providing 457 plan consulting services and demonstrate the following qualifications: 1. Thorough knowledge of and experience with all fiduciary and legal requirements governing the operation and investment of 457 plans sponsored by governmental entities. 2. Recent experience in drafting Deferred Compensation Committee Charters and Investment Policy Statements. 3. Experience in investment consulting and participant education. 4. Status as an independent firm qualified to do business within the State of California B. The firm must not have a financial, business or other relationship that would constitute a conflict of interest with the South Coast Air Quality Management District. C. Proposer must submit the following: 1. Resumes or similar statement of qualifications of person or persons who would be designated to work on this engagement. 2. List of representative clients who may be contacted for references. 3. Summary of proposer's general qualifications to meet required qualifications and fulfill statement of work, including additional firm personnel and resources beyond those designated on this engagement. SECTION VII: PROPOSAL SUBMITTAL REQUIREMENTS Submitted proposals must follow the format outlined below and all requested information must be supplied. Failure to submit proposals in the required format will result in elimination from proposal evaluation. Each proposal must be submitted in three separate volumes: Volume I - Technical Proposal ■ Volume II - Cost Proposal ■ Volume III - Certifications and Representations included in Attachment A to this RFP, should be executed by an authorized official of the Contractor. A separate cover letter including the name, address, and telephone number of the contractor, and signed by the person or persons authorized to represent the firm should accompany the proposal submission. Firm contact information as follows should also be included in the cover letter: 1. Address and telephone number of office in, or nearest to, Diamond Bar, California. 2. Name and title of firm's representative designated as contact. A separate Table of Contents should be provided for Volumes I and 11. VOLUME I -TECHNICAL PROPOSAL 0C(AOT NCLUDE3ANY COST 11V ,06iMAT.ION1WTHE TECHNICAL VOLUME Summary (Section A) - State overall approach to meeting the objectives and satisfying the scope of work to be performed, the sequence of activities, and a description of methodology or techniques to be used. Program Schedule (Section B) - Provide projected milestones or benchmarks for submitting reports within the total time allowed. Project Organization (Section C) - Describe the proposed management structure, program monitoring procedures, and organization of the proposed team. Qualifications (Section D) - Describe the technical capabilities of the firm. Provide references of other similar studies performed during the last five years demonstrating ability to successfully complete the project. Include contact name, title, and telephone number for any references listed. Provide a statement of your firm's background and experience in performing similar projects for other governmental organizations. Describe legal resources available to the firm to assure options presented and recommendations made meet all legal requirements. Assigned Personnel (Section E) - Provide the following information on the staff to be assigned to this project: List all key personnel assigned to the project by level and name. Provide a resume or similar statement of the qualifications of the lead person and all persons assigned to the project. Substitution of project manager or lead personnel will not be permitted without prior written approval of AQMD. 2. Provide a spreadsheet of the labor hours proposed for each labor category at the task level. 3. Provide a statement indicating whether or not 90% of the work will be performed within the geographical boundaries of the AQMD. 4. Provide a statement of the education and training program provided by, or required of, the staff identified for participation in the project, particularly with reference to management consulting, governmental practices and procedures, and technical matters. 5. Provide a summary of your firm's general qualifications to meet required qualifications and fulfill statement of work, including additional firm personnel and resources beyond those who may be assigned to the project. Subcontractors (Section F) - This project may require expertise in multiple technical and legal areas. List any subcontractors that may be used and the work to be performed by them. Conflict of Interest (Section G) - Address possible conflicts of interest with other clients affected by actions performed by the firm on behalf of AQMD. Although the Proposer will not be automatically disqualified by reason of work performed for such firms, AQMD reserves the right to consider the nature and extent of such work in evaluating the proposal. Additional Data (Section H) - Provide other essential data that may assist in the evaluation of this proposal. VOLUME II - COST PROPOSAL Name and Address - The Cost Proposal must list the name and complete address of the Proposer in the upper left-hand corner. Cost Proposal — AQMD anticipates awarding a fixed price contract. Cost information must be provided as listed below: Detail must be provided by the following categories: A. Lab or - List the total number of hours and the hourly billing rate for each level of professional staff. A breakdown of the proposed billing rates must identify the direct labor rate, overhead rate and amount, fringe benefit rate and amount, General and Administrative rate and amount, and proposed profit or fee. Provide a basis of estimate justifying the proposed labor hours and proposed labor mix. B. Subcontractor Costs - List subcontractor costs and identify subcontractors by name. Itemize subcontractor charges per hour or per day. C. Travel Costs - Indicate amount of travel cost and basis of estimate to include trip destination, purpose of trip, length 'of trip, airline fare or mileage expense, per diem costs, lodging and car rental. D. Other Direct Costs -This category may include such items as postage and mailing expense, printing and reproduction costs, etc. Provide a basis of estimate for these costs. VOLUME III - CERTIFICATIONS AND REPRESENTATIONS (see Attachment A to this RFP) SECTION Vill: PROPOSAL SUBMISSION All proposals must be submitted according to specifications set forth in the section above. Failure to adhere to these specifications may be cause for rejection of proposal. Signature - All proposals should be signed by an authorized representative of the Proposer. Due Date - The Proposer shall submit eight (8) complete copies of the proposal in a sealed envelope, plainly marked in the upper left-hand corner with the name and address of the Proposer and the words "Request for Proposals #2008-06." All proposals are due no later than 1:00 p.m., November 9, 2007, and should be directed to: Procurement Unit South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 (909) 396-3520 Late bids/proposals will not be accepted under any circumstances. Any correction or resubmission done by the Proposer will not extend the submittal due date. Grounds for Rei ction - A proposal may be immediately rejected if: ■ It is not prepared in the format described, or ® It is signed by an individual not authorized to represent the firm. Disposition of Proposals - AQMD reserves the right to reject any or all proposals. All responses become the property of AQMDOne copy of the proposal shall be retained for AQMD files. Additional copies and materials will be returned only if requested and at the proposer's expense. Modification or Withdrawal - Once submitted, proposals cannot be altered without the prior written consent of AQMD. All proposals shall constitute firm offers and may not be withdrawn for a period of ninety (90) days following the last day to accept proposals. SECTION IX: PROPOSAL EVALUATION/CONTRACTOR SELECTION, CRITERIA A. Proposals will be evaluated by the Deferred Compensation Committee. In addition, the Committee may include such outside public sector or academic community expertise as deemed desirable by the Executive Officer. The Committee will make a recommendation to the Governing Board of the AQMD for final selection of a contractor and negotiation of a contract. B. Each member of the Committee shall be accorded equal weight in his or her rating of proposals. The Committee members shall evaluate the proposals according to the specified criteria and numerical weightings set forth below. 1. Proposal Evaluation Criteria Points Responsiveness of the proposal clearly identifying 30 a thorough understanding of the Scope of Work Demonstrated technical expertise Previous Experience on Similar Projects Cost 2. Additional Points 20 .20 30 TOTAL 100 Small Business or Small Business Joint Venture 10 DVBE or DVBE Joint Venture 10 Use of DVBE or Small Business Subcontractors 7 Low -Emission Vehicle Business 5 Local Business (Non -EPA Funded Projects Only) 5 Off -Peak Hours Delivery Business 2 The cumulative points awarded for small business, DVBE, use of small business or DVBE subcontractors, low -emission vehicle business, local business, and off-peak hours delivery business shall not exceed 15 points. 3. To receive additional points in the evaluation process for the categories of Small Business or Small Business Joint Venture, DVBE or DVBE Joint Venture or Local Business (for non -EPA funded projects), the proposer must submit a self -certification or certification from the State of California Office of Small Business Certification and Resources at the time of proposal submission certifying that the proposer meets the requirements set forth in Section III. To receive points for the use of DVBE and/or Small Business subcontractors, at least-25 percent of the total contract value must be subcontracted to DVBEs and/or Small Businesses. To receive points as a Low - Emission Vehicle Business, the proposer must demonstrate to the Executive Officer, or designee, that supplies and materials delivered to the AQMD are delivered in vehicles that operate on either clean -fuels or if powered by diesel fuel, that the vehicles have particulate traps installed. To receive points as an Off -Peak Hours Delivery Business, the proposer must submit, at proposal submission, certification of its commitment to delivering supplies and materials to AQMD between the hours of 10:00 a.m. and 3:00 p.m. The cumulative points awarded for small business, DVBE, use of Small Business or DVBE Subcontractors, Local Business, Low -Emission Vehicle Business and Off -Peak Hour Delivery Business shall not exceed 15 points. The Procurement Section will be responsible for monitoring compliance of suppliers awarded purchase orders based upon use of low -emission vehicles or off-peak traffic hour delivery commitments through the use of vendor logs which will identify the contractor awarded the incentive. The purchase order shall incorporate terms which obligate the supplier to deliver materials in low -emission vehicles or deliver during off- peak traffic hours. The Receiving department will monitor those qualified supplier deliveries to ensure compliance to the.purchase order requirements. Suppliers in non- compliance will be subject to a two percent of total purchase order value penalty. The Procurement Manager will adjudicate any disputes regarding either low -emission vehicle or off-peak hour deliveries. 4. For procurement of Research and Development (R & D) projects or projects requiring special technical expertise, technical factors including past experience shall be weighted at 70 points and cost shall be weighted at 30 points. A proposal must receive at least 56 out of 70 points on R & D projects and projects for special technical expertise in order to be deemed qualified for award. 5. The lowest cost proposal will be awarded the maximum cost points available and all other cost proposals will receive points on a prorated basis. For example if the lowest cost proposal is $1,000 and the maximum points available are 30 points, this proposal would receive the full 30 points. If the next lowest cost proposal is $1,100 it would receive 27 points reflecting the fact that it is 10% higher than the lowest cost (90% of 30 points = 27 points). C. During the selection process the evaluation panel may wish to interview some proposers for clarification purposes only. No new material will be permitted at this time. D. The Executive Officer or Governing Board may award the contract to a proposer other than the proposer receiving the highest rating in the event the Governing Board determines that another proposer from among those technically qualified would provide the best value to AQMD considering cost and technical factors. The determination shall be based solely on the Evaluation Criteria contained in the Request for Proposal (RFP), on evidence provided in the proposal and on any other evidence provided during the bid review process. Evidence provided during the bid review process is limited to clarification by the Proposer of information presented in his/her proposal. E. Selection will be made based on the above -described criteria and rating factors. The selection will be made by and is subject to Executive Officer or Governing Board approval. All proposers will be notified of the results by letter. F. The Executive Officer or Governing Board may award contracts to more than one proposer if in (his or their) sole judgment the purposes of the (contract or award) would best be served by selecting multiple proposers. G. If additional funds become available, the Executive Officer or Governing Board may increase the amount awarded. The Executive Officer or Governing Board may also select additional proposers for a grant or contract if additional funds become available. SECTION X: DRAFT CONTRACT (Provided as a sample only) South Coast Air Quality Management District ,th Coast Air Quality Management District (referred to here as "AQMD") whose address is 21865 Copley Drive, Diamond Bar, California 91765-4178, and *** (referred to here as "CONTRACTOR") whose address is ***. 2. RECITALS A. AQMD is the local agency with primary responsibility for regulating stationary source air pollution in the South Coast Air Basin in the State of California. AQMD is authorized to enter into this Contract under California Health and Safety Code Section 40489. AQMD desires to contract with CONTRACTOR for services described in Attachment 1 - Statement of Work, attached here and made a part here by this reference. CONTRACTOR warrants that it is well -qualified and has the experience to provide such services on the terms set forth here. B. CONTRACTOR is authorized to do business in the State of California and attests that it is in good tax standing with the California Franchise Tax Board. C. All parties to this Contract have had the opportunity to have this Contract reviewed by their attorney. D. CONTRACTOR agrees to obtain the required licenses, permits, and all other appropriate legal authorizations from all applicable federal, state and local jurisdictions and pay all applicable fees. PERFORMANCE REQUIREMENTS A. CONTRACTOR warrants that it holds all necessary and required licenses and permits to provide these services. CONTRACTOR further agrees to immediately notify AQMD in writing of any change in its licensing status. B. CONTRACTOR shall submit reports to AQMD as outlined in Attachment 1 - Statement of Work. All reports shall be submitted in an environmentally friendly format: recycled paper; stapled, not bound; black and white, double -sided print; and no three-ring, spiral, or plastic binders or cardstock covers. AQMD reserves the right to review, comment, and request changes to any report produced as a result of this Contract. C. CONTRACTOR shall perform all .tasks set forth in Attachment 1 - Statement of Work, and shall not engage, during the term of this Contract, in any performance of work that is in direct or indirect conflict with duties and responsibilities set forth in Attachment 1 - Statement of Work. D. CONTRACTOR shall be responsible for exercising the degree of skill and care customarily required by accepted professional practices and procedures subject to AQMD's final approval which AQMD will not unreasonably withhold. Any costs incurred due to the failure to meet the foregoing standards, or otherwise defective services which require re -performance, as directed by AQMD, shall be the responsibility of CONTRACTOR. CONTRACTOR's failure to achieve the performance goals and objectives stated in Attachment 1- Statement of Work, is not a basis for requesting re -performance unless work conducted by CONTRACTOR is deemed by AQMD to have failed the foregoing standards of performance, E. CONTRACTOR shall post a performance bond in the amount of *** Dollars ($***) from a surety authorized to issue such bonds within the State. [USE IF REQUIRED] F. AQMD has the right to review the terms and conditions of the performance bond and to request modifications thereto which will ensure that AQMD will be compensated in the event CONTRACTOR fails to perform and also provides AQMD with the opportunity to review the qualifications of the entity designated by the issuer of the performance bond to perform in CONTRACTOR's absence and, if necessary, the right to reject such entity. [USE IF REQUIRED] G. CONTRACTOR shall ensure, through its contracts with any subcontractor(s), that employees and agents performing under this Contract shall abide by the requirements set forth in this clause. 4. TERM - The term of this Contract is from the date of execution by both parties (or insert date) to ***, unless further extended by amendment of this Contract in writing. No work shall commence until this Contract is fully executed by all parties. 5. TERMINATION A. In the event any party fails to comply with any term or condition of this Contract, or fails to provide services in the manner agreed upon by the parties, including, but not limited to, the requirements of Attachment 1 — Statement of Work, this failure shall constitute a breach of this Contract. The non - breaching party shall notify the breaching party that it must cure this breach or provide written notification of its intention to terminate this contract. Notification shall be provided in the manner set forth in Clause 11 The non -breaching party reserves all rights under law and equity to enforce this contract and recover damages. B. AQMD reserves the right to terminate this Agreement, in whole or in part, without cause, upon thirty (30) days' written notice. Once such notice has been given, CONTRACTOR shall, except as and to the extent or directed otherwise by AQMD, discontinue any Work being performed under this Agreement and cancel any of CONTRACTOR's orders for materials, facilities, and supplies in connection with such Work, and shall use its best efforts to procure termination of existing subcontracts upon terms satisfactory to AQMD. Thereafter, CONTRACTOR shall perform only such services as may be necessary to preserve and protect any Work already in progress and to dispose of any property as requested by AQMD. C. CONTRACTOR shall be paid in accordance with this Agreement for all Work performed before the effective date of termination under Clause 5.6. Before expiration of the thirty (30) days' written notice, CONTRACTOR shall promptly deliver to AQMD all copies of documents and other information and data prepared or developed by CONTRACTOR under this Agreement with the exception of a record copy of such materials, which may be retained by CONTRACTOR." already in progress and to dispose of any property as requested by AQMD. 6. INSURANCE A. CONTRACTOR shall furnish evidence to AQMD of workers' compensation insurance for each of its employees, in accordance with either California or other states' applicable statutory requirements prior to commencement of any work on this Contract. B. CONTRACTOR shall furnish evidence to AQMD of general liability insurance with a limit of at least $1,000,000 per occurrence, and $2,000,000 in a general aggregate prior to commencement of any work on this Contract. AQMD shall be named as an additional insured on any such liability policy, and thirty (30) days written notice prior to cancellation of any such insurance shall be given by CONTRACTOR to AQMD. C. CONTRACTOR shall furnish evidence to AQMD of automobile liability insurance with limits of at least $100,000 per person and $300,000 per accident for bodily injuries, and $50,000 in property damage, or $1,000,000 combined single limit for bodily injury or property damage, prior to commencement of any work on this Contract. AQMD shall be named as an additional insured on any such liability policy, and thirty (30) days written notice prior to cancellation of any such insurance shall be given by CONTRACTOR to AQMD. D, CONTRACTOR shall furnish evidence to AQMD of Professional Liability Insurance with an aggregate limit of not less than $5,000,000, [OPTIC3NALFFOR i'RQFESSIONAL°SERIICE5] E. If CONTRACTOR fails to maintain the required insurance coverage set forth above, AQMD reserves the right either to purchase such additional insurance and to deduct the cost thereof from any payments owed to CONTRACTOR or terminate this Contract for breach. F. All insurance certificates should be mailed to: AQMD Risk Management, 21865 Copley Drive, Diamond Bar, CA 91765-4178. The AQMD Contract Number must be included on the face of the certificate. G. CONTRACTOR must provide updates on the insurance coverage throughout the term of the Contract to ensure that there is no break in coverage during the period of contract performance. Failure to provide evidence of current coverage shall be grounds for termination for breach of Contract. INDEMNIFICATION - CONTRACTOR agrees to hold harmless and indemnify AQMD, its officers, employees, agents, representatives, and successors -in -interest against any and all loss, damage, cost, lawsuits, demands, judgments, legal fees or any other expenses which AQMD, its officers, employees, agents, representatives, and successors -in -interest may incur or be required to pay by reason of any injury or property damage arising from the negligent or intentional conduct or omission of CONTRACTOR, its employees, its subcontractors, or its agents in the performance of this Contract. 8. CO -FUNDING [USE IF REQUIRED] A. CONTRACTOR shall obtain co -funding as follows: ***, *** Dollars ($***); ***, *** Dollars Dollars ($***); ***, *** Dollars ($***); ***, *** Dollars ($***); and ***, *** Dollars ($***). B. If CONTRACTOR fails to obtain co -funding in the amount(s) referenced above, then AQMD reserves the right to renegotiate or terminate this Contract. C. CONTRACTOR shall provide co -funding in the amount of *** Dollars ($***) for this project, If CONTRACTOR fails to provide this co -funding; then AQMD reserves the right to renegotiate or terminate this Contract. 9. PAYMENT [FIXED .PliCE)-ise 1his.cne;or. the;TM one beCpw, A. AQMD shall pay CONTRACTOR a fixed price of-" Dfor work performed under this Contract in accordance with Attachment 2 - Payment Schedule, attached here and included here by reference. Payment shall be made by AQMD to CONTRACTOR within thirty (30) days after approval by AQMD of an invoice prepared and furnished by CONTRACTOR showing services performed and referencing tasks and deliverables as shown in Attachment 1 - Statement of Work, and the amount of charge claimed. Each invoice must be prepared in duplicate, on company letterhead, and list AQMD's Contract number, period covered by invoice, and CONTRACTOR's social security number or Employer Identification Number and submitted to: South Coast Air Quality Management District, Attn:***. B. An amount equal to ten percent (10%) shall be withheld from all charges paid until satisfactory completion and final acceptance of work by AQMD. [OPTIC NA, ] C. AQMD reserves the right to disallow charges when the invoiced services are not performed satisfactorily in AQMD sole judgment. f7 s&,NJFuse this arre or, tre, fixed Price ore above': A. AQMD all pay CONTRACTOR a total not to exceed amount of including any authorized travel -related expenses, for time and materials at rates in accordance with Attachment 2 — Cost Schedule, attached here and included here by this reference. Payment of charges shall be made by AQMD to CONTRACTOR within thirty (30) days after approval by AQMD of an itemized invoice prepared and furnished by CONTRACTOR referencing line item expenditures as listed in Attachment 2 and the amount of charge claimed. Each invoice must be prepared in duplicate, on company letterhead, and list AQMD's Contract number, period covered by invoice, and CONTRACTOR's social security number or Employer Identification Number and submitted to: South Coast Air Quality Management District, Attn: B. CONTRACTOR shall adhere to total tasks and/or cost elements (cost category) expenditures as listed in Attachment 2. Reallocation of costs between tasks and/or cost category expenditures is permitted up to One Thousand Dollars ($1,000) upon prior written approval from AQMD. Reallocation of costs in excess of One Thousand Dollars ($1,000) between tasks and/or cost category expenditures requires an amendment to this Contract. C. AQMD's payment of invoices shall be subject to the following limitations and requirements: i) Charges for equipment, material, and supply costs, travel expenses, subcontractors, and other charges, as applicable, must be itemized by CONTRACTOR. Reimbursement for equipment, material, supplies, subcontractors, and other charges shall be made at actual cost. Supporting documentation must be provided for all individual charges (with the exception of direct labor charges provided by CONTRACTOR). AQMD's reimbursement of travel expenses and requirements for supporting documentation are listed below. ii)CONTRACTOR's failure to provide receipts shall be grounds for AQMD's non -reimbursement of such charges. AQMD may reduce payments on invoices by those charges for which receipts were not provided. i►i)AQMD shall not pay interest, fees, handling charges, or cost of money on Contract. D. AQMD shall reimburse CONTRACTOR for travel -related expenses only if such travel is expressly set forth in Attachment 2 — Cost Schedule of this Contract or pre -authorized by AQMD in writing. i)AQMD's reimbursement of travel -related expenses shall cover lodging, meals, other incidental expenses, and costs of transportation subject to the following limitations: Air Transportation - Coach class rate for all flights. If coach is not available, business class rate is permissible. Car Rental - A compact car rental. A mid -size car rental is permissible if car rental is shared by three or more individuals. Lodging - Up to One Hundred Fifty Dollars ($150) per night. A higher amount of reimbursement is permissible if pre -approved by AQMD. Meals - Daily allowance is Fifty Dollars ($50.00). ii)Supporting documentation shall be provided for travel -related expenses in accordance with the following requirements: Lodging, Airfare, Car Rentals - Bill(s) for actual expenses incurred. Meals - Meals billed in excess of $50.00 each day require receipts or other supporting documentation for the total amount of the bill and must be approved by AQMD. Mileage - Beginning each January 1, the rate shall be adjusted effective February 1 by the Chief Financial Officer based on the Internal Revenue Service Standard Mileage Rate Other travel -related expenses - Receipts are required for all individual items, E. AQMD reserves the right to disallow charges when the invoiced services are not performed satisfactorily in AQMD sole judgment. 10. INTELLECTUAL PROPERTY RIGHTS - Title and full ownership rights to any software, documents, or reports developed under this Contract shall at all times remain with AQMD. Such material is agreed to be AQMD proprietary information. A. Rights of Technical Data - AQMD shall have the unlimited right to use technical data, including material designated as a trade secret, resulting from the performance of services by CONTRACTOR under this Contract. CONTRACTOR shall have the right to use technical data for its own benefit. B. Copyright - CONTRACTOR agrees to grant AQMD a royalty -free, nonexclusive, irrevocable license to produce, translate, publish, use, and dispose of all copyrightable material first produced or composed in the performance of this Contract, 11. NOTICES - Any notices from either party to the other shall be given in writing to the attention of the persons listed below, or to other such addresses or addressees as may hereafter be designated in writing for notices by either party to the other. Notice shall be given by certified, express, or registered mail, return receipt requested, and shall be effective as of the date of receipt indicated on the return receipt card. AQMD: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: *** CONTRACTOR: *** *** *** Attn: *** 12. EMPLOYEES OF CONTRACTOR A. AQMD reserves the right to review the resumes of any of CONTRACTOR employees, and/or any subcontractors selected to perform the work specified here and to disapprove CONTRACTOR choices. CONTRACTOR warrants that it will employ no subcontractor without written approval from AQMD. CONTRACTOR shall be responsible for the cost of regular pay to its employees, as well as cost of vacation, vacation replacements, sick leave, severance pay and pay for legal holidays. B. CONTRACTOR, its officers, employees, agents, representatives or subcontractors shall in no sense be considered employees or agents of AQMD, nor shall CONTRACTOR, its officers, employees, agents, representatives or subcontractors be entitled to or eligible to participate in any benefits, privileges, or plans, given or extended by AQMD to its employees. C. AQMD requires Contractor to be incompliance with all state and federal laws and regulations with respect to its employees throughout the term of this Contract, including state minimum wage laws and OSHA requirements. 13. CONFIDENTIALITY - It is expressly understood and agreed that AQMD may designate in a conspicuous manner the information which CONTRACTOR obtains from AQMD as confidential. CONTRACTOR agrees to: A. Observe complete confidentiality with respect to such information, including without limitation, agreeing not to disclose or otherwise permit access to such information by any other person or entity in any manner whatsoever, except that such disclosure or access shall be permitted to employees or subcontractors of CONTRACTOR requiring access in fulfillment of the services provided under this Contract. B. Ensure that CONTRACTOR's officers, employees, agents, representatives, and independent contractors are informed of the confidential nature of such information and to assure by agreement or otherwise that they are prohibited from copying or revealing, for any purpose whatsoever, the contents of such information or any part thereof, or from taking any action otherwise prohibited under this clause. C. Not use such information or any part thereof in the performance of services to others or for the benefit of others in any form whatsoever whether gratuitously or for valuable consideration, except as permitted under this Contract. D. Notify AQMD promptly and in writing of the circumstances surrounding any possession, use, or knowledge of such information or any part thereof by any person or entity other than those authorized by this clause. E. Take at CONTRACTOR expense, but at AQMD's option and in any event under AQMD's control, any legal action necessary to prevent unauthorized use of such information by any third party or entity which has gained access to such information at least in part due to the fault of CONTRACTOR. F. Take any and all other actions necessary or desirable to assure such continued confidentiality and protection of such information, G. Prevent access to such information by any person or entity not authorized under this Contract. H. Establish specific procedures in order to fulfill the obligations of this clause. I. Notwithstanding the above, nothing herein is intended to abrogate or modify the provisions of Government Code Section 6250 et.seq. (Public Records Act), 14. PUBLICATION A. AQMD shall have the right of prior written approval of any document which shall be disseminated to the public by CONTRACTOR in which CONTRACTOR utilized information obtained from AQMD in connection with performance under this Contract, B. Information, data, documents, or reports developed by CONTRACTOR for AQMD, pursuant to this Contract, shall be part of AQMD public record unless otherwise indicated. CONTRACTOR may use or publish, at its own expense, such information provided to AQMD. The following acknowledgment of support and disclaimer must appear in each publication of materials, whether copyrighted or not, based upon or developed under this Contract. "This report was prepared as a result of work sponsored, paid for, in whole or in part, by the South Coast Air Quality Management District (AQMD). The opinions, findings, conclusions, and recommendations are those of the author and do not necessarily represent the views of AQMD. AQMD, its officers, employees, contractors, and subcontractors make no warranty, expressed or implied, and assume no legal liability for the information in this report. AQMD has not approved or disapproved this report, nor has AQMD passed upon the accuracy or adequacy of the information contained herein." C, CONTRACTOR shall inform its officers, employees, and subcontractors involved in the performance of this Contract of the restrictions contained herein and require compliance with the above. 15. NON-DISCRIMINATION - In the performance of this Contract, CONTRACTOR shall not discriminate in recruiting, hiring, promotion, demotion, or termination practices on the basis of race, religious creed, color, national origin, ancestry, sex, age, or physical or mental disability and shall comply with the provisions of the California Fair Employment & Housing Act (Government Code Section 12900 et seq.), the Federal Civil Rights Act of 1964 (P.L. 88-352) and all amendments thereto, Executive Order No. 11246 (30 Federal Register 12319), and all administrative rules and regulations issued pursuant to said Acts and Order. CONTRACTOR shall likewise require each subcontractor to comply with this clause and shall include in each such subcontract language similar to this clause. 16. SOLICITATION OF EMPLOYEES - CONTRACTOR expressly agrees that CONTRACTOR shall not, during the term of this Contract, nor for a period of six months after termination, solicit for employment, whether as an employee or independent contractor, any person who is or has been employed by AQMD during the term of this Contract without the consent of AQMD. 17, PROPERTY AND SECURITY - Without limiting CONTRACTOR obligations with regard to security, CONTRACTOR shall comply with all the rules and regulations established by AQMD for access to and activity in and around AQMD premises. 18. ASSIGNMENT - The rights granted hereby may not be assigned, sold, licensed, or otherwise transferred by either party without the prior written consent of the other, and any attempt by either party to do so shall be void upon inception. 19. NON -EFFECT OF WAIVER - The failure of CONTRACTOR or AQMD to insist upon the performance of any or all of the terms, covenants, or conditions of this Contract, or failure to exercise any rights or remedies hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants, or conditions, or of the future exercise of such rights or remedies, unless otherwise provided for herein. 20. ATTORNEYS' FEES - In the event any action is filed in connection with the enforcement or interpretation of this Contract, each party shall bear its own attorneys' fees and costs. 21. FORCE MAJEURE - Neither AQMD nor CONTRACTOR shall be liable or deemed to be in default for any delay or failure in performance under this Contract or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable control of AQMD or CONTRACTOR. 22. SEVERABILITY - In the event that any one or more of the provisions contained in this Contract shall for any reason be held to be unenforceable in any respect by a court of competent jurisdiction, such holding shall not affect any other provisions of this Contract, and the Contract shall then be construed as if such unenforceable provisions are not a part hereof. 23. HEADINGS - Headings on the clauses of this Contract are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Contract. 24. DUPLICATE EXECUTION - This Contract is executed in duplicate. Each signed copy shall have the force and effect of an original. 25. GOVERNING LAW - This Contract shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California, Venue for resolution of any disputes under this Contract shall be Los Angeles County, California. 26. CITIZENSHIP AND ALIEN STATUS A. CONTRACTOR warrants that it fully complies with all laws regarding the employment of aliens and others, and that its employees performing services hereunder meet the citizenship or alien status requirements contained in federal and state statutes and regulations including, but not limited to, the Immigration Reform and Control Act of 1986 (P.L. 99-603). CONTRACTOR shall obtain from all covered employees performing services hereunder all verification and other documentation of employees' eligibility status required by federal statutes and regulations as they currently exist and as they may be hereafter amended. CONTRACTOR shall have a continuing obligation to verify and document the continuing employment authorization and authorized alien status of employees performing services under this Contract to insure continued compliance with all federal statutes and regulations. B. Notwithstanding paragraph A above, CONTRACTOR, in the performance of this Contract, shall not discriminate against any person in violation of 8 USC Section 1324b, C. CONTRACTOR shall retain such documentation for all covered employees for the period described by law. CONTRACTOR shall indemnify, defend, and hold harmless AQMD, its officers and employees from employer sanctions and other liability which may be assessed against CONTRACTOR or AQMD, or both in connection with any alleged violation of federal statutes or regulations pertaining to the eligibility for employment of persons performing services under this Contract. 27, FEDERAL FAIR SHARE POLICY - As a recipient of Environmental Protection Agency (EPA) grant funds, AQMD is required to flow down to all of its contractors the provisions of 40 CFR Section 31.36(e) which addresses affirmative steps for contracting with small -and -minority firms, women's business enterprises, and labor surplus area firms. CONTRACTOR agrees to comply with these provisions. 28. REQUIREMENT FOR FILING STATEMENT OF ECONOMIC INTERESTS - In accordance with the Political Reform Act of 1974 (Government Code Sec. 81000 et seq.) and regulations issued by the Fair Political Practices Commission (FPPC), AQMD has determined that the nature of the work to be performed under this Contract requires CONTRACTOR to submit a Form 700, Statement of Economic Interests for Designated Officials and Employees, for each of its employees assigned to work on this Contract. These forms may be obtained from AQMD's District Counsel's office. [USE IF REQUIRED] 29. COMPLIANCE WITH SINGLE AUDIT ACT REQUIREMENTS [OPTIONAL - TO BE INCLUDED IN CONTRACTS WITH FOR -PROFIT CONTRACTORS WHICH HAVE FEDERAL PASS -THROUGH FUNDING] - During the term of the Contract, and for a period of three (3) years from the date of Contract expiration, and if requested in writing by the AQMD, CONTRACTOR shall allow the AQMD, its designated representatives and/or the cognizant Federal Audit Agency, access during normal business hours to all records and reports related to the work performed under this Contract. CONTRACTOR assumes sole responsibility for reimbursement to the Federal Agency funding the prime grant or contract, a sum of money equivalent to the amount of any expenditures disallowed should the AQMD, its designated representatives and/or the cognizant Federal Audit Agency rule through audit exception or some other appropriate means that expenditures from funds allocated to the CONTRACTOR were not made in compliance with the applicable cost principles, regulations of the funding agency, or the provisions of this Contract. [OPTIONAL - TO BE INCLUDED IN CONTRACTS WITH NON-PROFIT CONTRACTORS WHICH HAVE FEDERAL PASS -THROUGH FUNDING] - Beginning with CONTRACTOR' current fiscal year and continuing through the term of this Contract, CONTRACTOR shall have a single or program -specific audit conducted in accordance with the requirements of the Office of Management and Budget (OMB) Circular A- 133 (Audits of States, Local Governments and Non -Profit Organizations), if CONTRACTOR expended Three Hundred Thousand Dollars ($300,000) or more`in a year in Federal Awards. Such audit shall be conducted by a firm of independent accountants in accordance with Generally Accepted Government Audit Standards (GAGAS). Within thirty (30) days of Contract execution, CONTRACTOR shall forward to AQMD the most recent A-133 Audit Report issued by its independent auditors. Subsequent A-133 Audit Reports shall be submitted to the AQMD within thirty (30) days of issuance. CONTRACTOR shall allow the AQMD, its designated representatives and/or the cognizant Federal Audit Agency, access during normal business hours to all records and reports related to the work performed under this Contract. CONTRACTOR assumes sole responsibility for reimbursement to the Federal Agency funding the prime grant or contract, a sum of money equivalent to the amount of any expenditures disallowed should the AQMD, its designated representatives and/or the cognizant Federal Audit Agency rule through audit exception or some other appropriate means that expenditures from funds allocated to the CONTRACTOR were not made in compliance with the applicable cost principles, regulations of the funding agency, or the provisions of this Contract. 30. OPTION TO EXTEND THE TERM OF THE CONTRACT - AQMD reserves the right to extend the contract for a one-year period commencing *****(enter date) at the (option price or Not -to -Exceed Amount) set forth in Attachment 2. In the event that AQMD elects to extend the contract, a written notice of its intent to extend the contract shall be provided to CONTRACTOR no later than thirty (30) days prior to Contract expiration. [USE IF REQUIRED] 31. KEY PERSONNEL - insert person's name is deemed critical to the successful performance of this Contract. Any changes in key personnel by CONTRACTOR must be approved by AQMD. All substitute personnel must possess qualifications/experience equal to the original named key personnel and must be approved by AQMD. AQMD reserves the right to interview proposed substitute key personnel. [USE IF REQUIRED] 32. PREVAILING WAGES — [USE FOR INFRASTRUCTURE PROJECTS] CONTRACTOR is alerted to the prevailing wage requirements of California Labor Code section 1770 et seq. Copies of the prevailing rate of per diem wages are on file at the AQMD's headquarters, of which shall be made available to any interested party on request. Notwithstanding the preceding sentence, CONTRACTOR shall be responsible for determining the applicability of the provisions of California Labor Code and complying with the same, including, without limitation, obtaining from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work, making the same available to any interested party upon request, paying any applicable prevailing rates, posting copies thereof at the job site and flowing all applicable prevailing wage rate requirements to its subcontractors. CONTRACTOR shall indemnify, defend and hold harmless the South Coast Air Quality Management District against any and all claims, demands, damages, defense costs or liabilities based on failure to adhere to the above referenced statutes. 33. APPROVAL OF SUBCONTRACT A. If CONTRACTOR intends to subcontract a portion of the work under this Contract, written approval of the terms of the proposed subcontract(s) shall be obtained from AQMD's Executive Officer or designee prior to execution of the subcontract. No subcontract charges will be reimbursed unless such approval has been obtained. B. Any material changes to the subcontract(s) that affect the scope of work, deliverable schedule, and/or cost schedule shall also require the written approval of the Executive Officer or designee prior to execution. C. The sole purpose of AQMD's review is to insure that AQMD's contract rights have not been diminished in the subcontractor agreement. AQMD shall not supervise, direct, or have control over, or be responsible for, subcontractor's means, methods, techniques, work sequences or procedures or for the safety precautions and programs incident thereto, or for any failure of subcontractor to comply with any local, state, or federal laws, or rules or regulations. 34. ENTIRE CONTRACT - This Contract represents the entire agreement between the parties hereto related to CONTRACTOR providing services to AQMD and there are no understandings, representations, or warranties of any kind except as expressly set forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any party unless in writing and signed by the party against whom enforcement of such waiver, alteration, or modification is sought. IN WITNESS WHEREOF, the parties to this Contract have caused this Contract to be duly executed on their behalf by their authorized representatives. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT *** By; Barry R. Wallerstein, D.Env., Executive Officer Name: Dr. William A. Burke, Chairman, Governing Board Title: Date: Date: ATTEST: Saundra McDaniel, Clerk of the Board APPROVED AS TO FORM: Kurt R. Wiese, District Counsel ATTACHMENT A CERTIFICATIONS AND REPRESENTATIONS South Coast Air (,duality Management District 21865 Copley Drive, Diamond Bar, CA 91765-4178 (909) 396-2000 • www.agmd.gov Business Information Request Dear SCAQMD Contractor/Supplier: The South Coast Air Quality Management District (SCAQMD) is committed to ensuring that our contractor/supplier records are current and accurate. If your firm is selected for award of a purchase order or contract, it is imperative that the information requested herein be supplied in a timely manner to facilitate payment of invoices. In order to process your payments, we need the enclosed information regarding your account. Please review and complete the information identified on the following pages, complete the enclosed W-9 form, remember to sign both documents for our files, and return them as soon as possible to the address below: Attention: Accounts Payable, Accounting Department South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 If you do not return this information, we will not be able to establish you as a vendor. This will delay any payments and would still necessitate your submittal of the enclosed information to our Accounting department before payment could be initiated. Completion of this document and enclosed forms would ensure that your payments are processed timely and accurately. If you have any questions or need assistance in completing this information, please contact Accounting at (909) 396-3777. We appreciate your cooperation in completing this necessary information. Sincerely, Patrick H. Pearce Chief Financial Officer DH:LV:CW:tm Enclosures: Business Information Request Disadvantaged Business Certification W-9 Federal Contract Debarment Certification REV 3/07 South Coast Air Quality Management District 21865 Copley Drive, Diamond Bar, CA 91765-4178 (909) 396-2000 • www.agmd.gov Business Name Division of: Subsidiary of: Website Address Type of Business BUSINESS INFORMATION REQUEST REMITTING ADDRESS INFORMATION Address City/Town State/Province Zip Phone ( - Ext Fax ( - Contact Title E-mail Address Payment Name if Different All invoices must reference the corresponding Purchase Order Number(s)/Contract Number(s) if applicable and mailed to: Attention: Accounts Payable, Accounting Department South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 DISADVANTAGED BUSINESS CERTIFICATION Federal guidance for utilization of disadvantaged business enterprises allows a vendor to be deemed a small business enterprise (SBE), minority business enterprise (MBE) or women business enterprise (WBE) if it meets the criteria below. • is certified by the Small Business Administration or • is certified by a state or federal agency or • is an independent MBE(s) or WBEs) business concern which is at least 51 percent owned and controlled by minority group member(s) who are citizens of the United States. Following state guidance, a vendor may be deemed a disabled veteran business enterprise (DVBE) if it meets the following: • is an independent business concern which is at least 51 percent owned and controlled by disabled veteran(s), and the home office is located in the U.S. Statements of certification: As a prime contractor to the SCAQMD, (name of business) will engage in good faith efforts to achieve the fair share in accordance with 40 CFR Section 31.36(e), and will follow the six affirmative steps listed below for contracts or purchase orders funded in whole or in part by federal grants and contracts. 1. Place qualified SBEs, MBEs, and WBEs on solicitation lists. 2. Assure that SBEs, MBEs, and WBEs are solicited whenever possible. 3. When economically feasible, divide total requirements into small tasks or quantities to permit greater participation by SBEs, MBEs, and WBEs. 4. Establish delivery schedules, if possible, to encourage participation by SBEs, MBEs, and WBEs. 5. Use services of Small Business Administration, Minority Business Development Agency of the Department of Commerce, and/or any agency authorized as a clearinghouse for SBEs, MBEs, and WBEs. 6. If subcontracts are to be let, take the above affirmative steps. Self -Certification Verification: Check all that apply: ❑ Small business enterprise ❑ Local business ❑ Minority -owned business enterprise Percent of ownership: % Name of Qualifying Owner(s): ❑ Women -owned business enterprise ❑ Disabled veteran -owned business enterprise I, the undersigned, hereby declare that to the best of my knowledge the above information is accurate. Upon penalty of perjury, I certify information submitted is factual. NAME TELEPHONE NUMBER TITLE DATE Definitions Disabled Veteran -Owned Business Enterprise means a business that meets all of the following criteria: • is a sole proprietorship or partnership of which is at least 51 percent owned by one or more disabled veterans, or in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more disabled veterans; a subsidiary which is wholly owned by a parent corporation but only if at least 51 percent of the voting stock of the parent corporation is owned by one or more disabled veterans; or a joint venture in which at least 51 percent of the joint venture's management and control and earnings are held by one or more disabled veterans. • the management and control of the daily business operations are by one or more disabled veterans. The disabled veterans who exercise management and control are not required to be the same disabled veterans as the owners of the business. • is a sole proprietorship, corporation, partnership, or joint venture with its primary headquarters office located in the United States and which is not a branch or subsidiary of a foreign corporation, firm, or other foreign -based business. Joint Venture means that one party to the joint venture is a MBE/WBE/DVBE and owns at least 51 percent of thejoint venture. In the case of ajoint venture formed for a single project this means that MBE/WBE/DVBE will receive at least 51 percent of the project dollars. Local Business means a business that meets all of the following criteria: • has an ongoing business within the boundary of the SCAQMD at the time of bid application. • performs 90 percent of the work within SCAQMD's jurisdiction. Minority -Owned Business Enterprise means a business that meets all of the following criteria: • is at least 51 percent owned by one or more minority persons or in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more minority persons. • is a business whose management and daily business operations are controlled or owned by one or more minority person. • is a business which is a sole proprietorship, corporation, partnership, joint venture, an association, or a cooperative with its primary headquarters office located in the United States, which is not a branch or subsidiary of a foreign corporation, foreign firm, or other foreign business. "Minority" person means a Black American, Hispanic American, Native American (including American Indian, Eskimo, Aleut, and Native Hawaiian), Asian -Indian American (including a person whose origins are from India, Pakistan, or Bangladesh), Asian -Pacific American (including a person whose origins are from Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the United States Trust Territories of the Pacific, Northern Marianas, Laos, Cambodia, or Taiwan). Small Business Enterprise means a business that meets the following criteria: a. 1) an independently owned and operated business; 2) not dominant in its field of operation; 3) together with affiliates is either: • A service, construction, or non -manufacturer with 100 or fewer employees, and average annual gross receipts of ten million dollars ($10,000,000) or less over the previous three years, or • A manufacturer with 100 or fewer employees. Manufacturer means a business that is both of the following: 1) Primarily engaged in the chemical or mechanical transformation of raw materials or processed substances into new products. 2) Classified between Codes 2000 to 3999, inclusive, of the Standard Industrial Classification (SIC) Manual published by the United States Office of Management and Budget, 1987 edition. Women -Owned Business Enterprise means a business that meets all of the following criteria: is at least 51 percent owned by one or more women or in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more women. is a business whose management and daily business operations are controlled or owned by one or more women. is a business which is a sole proprietorship, corporation, partnership, or a joint venture, with its primary headquarters office located in the United States, which is not a branch or subsidiary of a foreign corporation, foreign firm, or other foreign business. Formw-9 Request for Taxpayer Give form to trip (Pew' 'Llnual-i w3s) Identification Number and Certification rogue ter. Do not Nparun4ft d ft Trwuury send to the IRS. cli Narne (as shown on y--w irr:,nme lay. return) (V M 0 Q. Business narne, if different. from abryvA F Indis'duav appfT-4iate El Sole- ❑0 Oorp<4'ation El Partwe ahip, ❑El Other Exempt from backup ❑Check rroprietor .......... A)A*,q�o (number, street awd apt, or suits ncO P&:Vesterla name ar-ed address (optimal) iL City, state, and ZIP OQ.:w .E O OL Lial a0IOUnt nunt-ei(m here (91:woari cn I= Taxpayer IdentiMation Number (TIN) Enter your TIN in the appropriate t<iy, The TIN provided MLW match ti-c- name given of Line 1 to avoid Social security number backup withholding. For individuals, this is your social security number i'M-SNi. for, a reeld.Zl alien, sole proprietor, cc disregarded entity. see the Pail I inatturtions on page 3. For, other- entities, it is your employer identification number j1EIN). If yru do not have a number, ees How to get a T;N on page �3. or Note, ff Oe accmnt ;a in mcvv than one name, see the chat on va gru'vCM0ee co nee number plo�w identification n ge 4 &'N- I WhL , I'l 4 1 1 1 1��Tll Certification Under penalties of perjury, I certify that: 1. The number einckvn on this form is my correct taypayer identification number (or I am waiting for a number to be laeued to me), and 2. 1 am rat subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the ln%'mal Revenue Gervire (IRS) that I am subject to backup withholding as a result of a failure to report all Mange or dividends. or (p) the IRS I -Gs notified me that I am r-o logger subject to backup -.withholding, and 3. 1 am a U.S. persoi-i (including a U.S. reoident alien). Certification instpictions. You must crass out item 2 above if you have been ratified by the IRS that you are currently subject to backup withholding because you have failed to rep -art all interest and dividends on your tax, retun-i. For, real estate transactions. item 2 does not apply. For mortgage interest Paid, ar,quieftion or abandonment of eecured properly, cancellation of debt, contributions to an individual tre-tirement amangame-it (IRA, and cieene+alty, payments otherthan inter -eat and dividends. yci-i are not reqUiled to sign the Certification, but you must prrjvide your correct TIN. (See tine imtructione on page 4.'1 Sign Signature of Here I U.S. person 0- Date 0► Purpose of Form A person who is required to file an information return with the IRS; Must obtain your correct taxpayer identification number k7IN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of six ured property, cancellation of debt, or contributions you madr, to an IRA. U.S. person. Usee Form W-9 only if you are a U.S. person iincluding a resident alien), to provide Your correct TIN to the person roquQding it (the requester') and, when applicable, to: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to L-�? issued). 2. Getty that you are not subject to backup withholding, or 3. Claim exemption from backup NOthholding if you are a U.S. exempt pays?. Note, ifa requWP-rgfvA-syou a form ottw- than. Form VV-9 to request your 7i`N. you axist use the wuaster's form, if it is• subsmr6aliy simSar to thLs Fruit W-9. For foclGral M, purposo-s you are considered a poiwn if You are: 0 An Individual Who is a citizen or rGsidc-nt of the United States, 9 A partnership, corporation. company, or issociation created or organizc-d in the United 8tates or Linder the laws of the United Slates. or * Any estate ;other than a foreign tatej or trust. See Regulations seations 301.7701 -6ia) and 7(a) for additional information. Foreign person. If you are a foreign person, do not use Form W-9. Instead, use the, appropriate Form Al-8 fsee Publication 51.5, Withholding of Tax on Nonresident Aliens and Foreign Entitiesj. Nonresident ilion who becomes a resident ation. Ggrieradly, only a nonresident alien individual may use the terms of a tax treaty to rC*1L1CQ or eliminate U.S. ta.,,< an certain types of income. However, most tax treaties contain a provision knmn as a "saving clause." Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the recipient has otherwise bpoome, a U.S. resident alien for tax purpo.SGOS. If you are a U,8. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following ffie items: 1. The treaty country. Generally. this must be the samc. treaty Underwhich You claimed exemption from tax as a nonresident alien. 2. The treaty article addressing the income, 3, The article number (or Iccation) in the tax treaty that contains the, saving clause and its exceptions. Cal, Wo. 10231,X Form W-9 IPW-v. 1-M05) Fc,on'04 Poo, 1-2005) 4. The type and amount of income that qualifies for the exemption from tax.. 5. sufficient facts to justify the exemption from tax Linder the terms of the treaty article. Exaniple. article 20 of the U.S.-China Income tax, treaty allorwe, an exemption from tax for scholarship income received by a Chinese student t4mporatffi present in the United States. Under U.S. Imov, this student will become a resident alien for tax purpose,-, if his or her stay in the United Stat&3,-, exceeds 5 calAnda.r years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese slud.;nt becomes a resident alien of the United ':;later,. A Chinese student who qualifies for this exception (Linder paragraph 2 of the first protocol! and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption. If you are a nonresident alien or a foreign entity, not subject to backup withhold ing, give the requester the appropriate completed Form W-8. What is backup withholding? Persons making certain payments to You Must Linder certain conditions withhold and pay to the IRS 289,o of such paymavits (after December 31, 2002'1. This is called "backup withholding." Payments that m;XW be subject to backup withholding include interest, dividends. broker and barter exch in� transactions, rents, royalties. nonczmploype pay, and certain payments from fishing boat operators. Real estate transactions are not subject to ba ckup withholding. You will not be SLlhjP-rt to backup withholding on payments you receive if you give the requester your correct TIN, make the proper oertlications. and report all Your taxable interest and dividends on your tax return. Payments you receive will be subject to backup witliholding if,, 1. You do not furnish your TIN to the requester, or 2. You do not certify Your TIN when required (see the Part 11 instructions on page 4 for details), or 3. The IRS tells the requ-_-,F,4@r that you furnished an incorrect TIN, or 4. The IRS tells You that you are subject to backup withholding because YOU did not report all Your interest and dividends on Your tax return (for reportable interest and dividends only), or 5. You do not certify to the requester that you are not subject to backup with holding under 4 above (For reportable interest and dividend accounts opened after 19&3 only). Certain payeas and payments are exempt from backup withholding. SG.-.-4 the instructions belorw and the separate Instructions for the Requester of Form W-9. Penalties Failure to furnish TIN, If You fail to furnish your correct TIN to a requester, you are subject to 3 penalty of W for each Such failure unless your failure is due to reasonable cause and not to Willful neglect. Civil penalty for false information with respect to withholding. If you make a false stateinerft with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. Criminal penalty for falsifying information. Allifully falsifying certifications or affirmations may subject You to criminal penalties including fines ondlor imprisonment. 1" 2 Misuse of TINS. If the recil.19Ster discloses or uses TINS in violation of federal law, the requester may be subject to civil and criminal penalties.. Specific Instructions _1 1=11 - If you are an individual, you must generally enter the name sho�4,n on your social security card. Haw -ever, if you have changed your last name, for instance, due to marriage without informing the Social Security Administration of the name change, enter your first name. the last name shown on Your social security card, and Your new last name. If the account is in joint names, list first, and then circle, the name of the person or entity whose number you entered in Pail I of the form_ .Sole proprietor. Enter your individual name as shown on your social security card on the "Name" line. You may enter your business, trade, or "doing business as (D&Aj." name Oil the "Business name" line. Lknited fia.bility company (LLC). If you are a single -member LLC (including a foreign LLC with a domestic owner) that is disregarded as an entity sc-parate, from its avinor Linder Treasury regulations section 301,7701-3, enter the owner's name on the "Name" line, Enter the LILC's name on the 'Business name" line. Check the appropriate, box for Your filing status, (sole proprietor. corporation, etc.), then olleck the box for "Other" and enter "LLC" in the space provided. Other entities. Enter your business name as shown on required Federal tax documents on the "Name" line. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on the "Business name" line. Note. You are requested to check the appropriate box for your status iindividualiso:49 proprietor. corporation, etc.). Exempt From Backup Withholding If you are exempt, enter your name is described above and check the appropriate box for Your status, then check the "Exampt from backup withholding" box in the line following the, business name, sign and date the form. Generally, individuals (including solo proprietors) are not 9AGmpt from backup withholding. Corporations are exempt from backup withholding for certain payments, such as interest and dividends. Note. If you are, exempt from backup withholding, you should still complete this form to avoid possible erroneous backup withholding. Exempt payees. Backup'-Aithholding is not required on any payments made to the following payees: 1. An organization @xQm pt from W under section 501 (a), any IRA, or a custodial account under section 403(N(7i if the, .account satis-fies the requirements of section 401 (f)O, 2; The United States, or any of its agencies or instrumentalities, 3. A state, the District of Columbia., a possession of the United States, or any of their political subdivisions or instrumontalitiiec. 4: A foreign government or any of its political subdivisions, agencies, or instrumentalities, or 5. An international organization or any of its agencies or i nstrumentaliti4--s. Other payees that may be exempt from backup withholding include: 6, A corporation, Form W-9 IPew. t­_,W�j � 3 7. A foreign central bank of issue, & A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. J. A fUtUrGG commisdon merchant registered with the Commodity FUtUreo Trading Commission. 10. A r6al estate investment trust, 11. An entity registered at all times during the tax year under the Investment Company Act of 1940, 12. A common trust fund operated by a bank under section 584(dj, 13. A financial institution, 14. A middleman known in the investment community as a nominer, oi- custodian, or 15. A trust exempt from tax under section 664 or described in section 4947. The chart 1:4- cro., shrjois types of payments that may be exet-npt from backup withholding. The chart applies to the exerript recipients listed above, 1 through 15. IF the payment is for THEN tile payment is exempt for . . , hTterest and dividend pavillente All exempt recipients except for 9 Broker transactions EKenlpit i*dpiente 1 through 13. Also, a petson rAgLnetered Linder the Investment Advisem Act of 1940 who regularly acts as a broker BaitH, exchange trenaactici-a Exempt recipients 1 through 5 and patm-nge dividends Payments over $600 l+�qLlirr-d Generally, exempt recipients to be reported and direct 1 thioLogh 7- 'gillee over $5,000 '"*e Form 1096,411SC. Mk-elWneous lnr")ro� ard ite inorticlioaq. Hcwevei, ifie fdl,,-vim rkayroecrds ri-ode to a c*rprxation firo',luding grams pro,:,eeda paid to an attorney under w,,tion 60451fi, even if the- eftoilley is a corporalion) and re{ stablc. on F-trn 1 w9-MISC- are not exempt from backlup -Aithholding: med"I and health Q%9 payrrents, altorry-ye' fees; and pa�yroc-(lts kt services pad tiv a Federal ese,.Llive agen-,y. Part I. Taxpayer Identification Number (TIN) Enter -,Yo Lrr TIN in the appropriate box. If you are i resident a,lien nd you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer idontificaton number OTINI. Enter it in the social security number box.. If you do not have an IT] N. seQ r4ow to get a TfN below. If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. However, the IRS pre -fors that YOU Use your SSN. If you are a single, -owner LLC that is disregarded as an entity, seporato from its owner i's4e Limv'rad YabiMy company (LLC) ran page 2), enter your SSN for E.IN, if you have one). If the LLC is corporation, partnership, etc., enter the entity's PIN. Note. Soo the chart on page 4 for further clarification of name and TIN combinations. How to got a TIN. If YOU do not have a TIN, apply for one immediately. To apply for an 98N, get Form 88-5, Application for a Social Security Card, from your local Social Security Administration office or get this form online at You rnxY also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an MN, or Form SS-4, Application for Employer Identification Number. to apply for an EIN. You can apply for an EIN online by accessing the IRS websito at *,,vwJrs.govjbusinossGd1 and clicking on Employer ID Numbers under Related Topics. You can gat Forms W-7 and 68-4 from the IRS by visiting www-irsgov or by calling 1-800-TAX-FORM (1-800-829-3676). If you are asked to complete Form W-9 but do not have a TIN, write "Applied For" in the space for the TIN, sign and date the form, and give it to the, requester. For interest and dividend payment-,. and certain payments made with respect to readily tradable instruments, generally you will have 60 days to got a TIN and give it to the requester before you VA - subject to Nackup -withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN t:) the requester. Note. Writing "Applied For" means that you have alrioady applied for a TIN or that you intend to apply for one soon. Caution, A disregarded domestic entftv that s a forayn owner must iise the appropriate Form W-8 F�srm'*Q ipev, Part 11. Certification To establish to the withholding agent that you at'E4 a U.8, person, or resident alien, sign Form W-9, You may bz- requested to sign by the withholding agent even if items 1, 4. and 5 below indicate otherwise. For a joint account, only the person whose, TIN is shcA,;n in Part I should sign Mhen required). Exempt recipients, see Fye,�r,pt Frew Backup Withholding on page 2. Signature requirements. Complete the certification as indicated in 1 through 5 below. 1. Interest, dividend, and barter exchange accounts opened before 19,M and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification. 2. Interest, dividend, broker, and barter exchange accounts opened after 19153 and broker accounts considered Mactjvce during 1980. You must sign the certification or backup withholding will apply. If You are subject to backup with holding and you are merely providing your correct TIN to the requester, you must cross OLA item 2 in the certification before signing the form. 3. Real estate transactions. You must sign the certification. You may cross out item 2 of the o.--Ttificition. 4. Other payments. You must gi,,rA- ,,,our correct TIN, but you do not have to sign the certification unless yr-ou have been notified that you have previously givep an Incorrect TIN. "Other Pa, ' vi-n-:nts" include payments made in the COUrSe Of the reclugst-c4r's trade or business for rents, royalties, goods (other than bills for merchandise), medical and health (-,are services (',including including payments to corporations), payments to a nonomployee for services, payments to certain fishing boat crew mA-mbe-ms and fishermen, and gross proceeds paid to attorneys (including payments to oorporations,i. 5. Mortgage interest paid by you, acquisition or abandonment of secured property, caticellation of debt, qualified tuition program paymprits (Linder section 529), IRA, Coverdell ESA, Archer M-SA or H-SA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the cArtifir—ition. El What Name and Number To Give the Requester For this type of account., Give name and SSN of: 1. Individual The individual 2. Two or more individuals (''joint The actual owner of the account accourd) of,, if combined funds, the first ind lvidual on the account 3. Custodian account of a minor The minor (Unifnim Gift to Minors Act) 4. a The usual revocable The grarrtor-truste-e- savings trust (g ientor is also tiusteei b. So-called tmist account The actual cwner' that is not a legal of' valid trust under state Im, 5. Sole- proprietorship cr The rkvner eingig-crwmer LLC For this type of account: Give name and ElN of: 6. Sole proprietorship or The cwner' single -owner LLC 7. A valid trust, estate, or Legal emity pension trust B. Corpc4nte or LLC electing The c orporato n corporate status on Fcrm $832 9, Aesociation, club, religious, The organization charitable, educational, or other tax-eocempt crgai-Azatirvi 10. Partnership or multi -member The partnership LLC 11. A broker or registered The brokei° or nominee rion)i nee 12, Arxount with the Department The public entity of Agriculture in the name of a public entity )such as a state or local government, scl-c-ol district, or prison) (besot receives agricultural program payments List firel end circis the name of the person whree number you furnish. If ,Ay one person on a joint actxAArd has an 3SN, that i�twn's number must b. furnigtod. Circla the mina's name and furnish the minors SSN, You must ehawyccr individual nern- and y,,tj mary also enter y,.,Ajr business r .4 'DBA' nan-p-, on the soocod ruarr» lime. You Mey Lw= either rue SSN a EIN (iff, ' Ku tw.4 ore}. If you are a sate propm*-�i. IRS encoura-y-s F-ki to use your GGN. List firs! and f*,le the name of the legal inw. estate, of pension trust. (Do root fuirish the TIN of the personal iepresemsti'*,» of ivuBbee uniees the legal ,entity be4f is rv.1 des) nsted inthe %,00uni title.) Note, If no name is circled when more than one nim,-z is listed, the number vvi 11 be considered to be that of the first name listed. Privacy Act Notice Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to YOU., mortgage interest you paid. the acquisition or abandonment Of Secured property, cancellation of debt, or contributions you made to an IRA, or Archer MSA or HSA. The IRS L15AS the number-, for identification purposes and to help verify the accuracy of your tax return. The IRS may also provide this information to the Department of Justice for civil and criminal litigation, and to cities, states, and the District of Columbia to carry out their tax laws. We may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal nontax criminal laws, or to federal Im, enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to lie a tay, return. Payers must generally withhold 28% of Wabis interest, dividend, and certain other payments to a payee who does not give a TIN to a payer. Certain penalties may also apply. United State Environmental Protection Agency Washington, DC 20460 Certification Regarding Debarment, Suspension, and Other Responsibility Matters The prospective participant certifies to the best of its knowledge and belief that it and the principals: (a) Are not presently debarred, suspended; proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three year period preceding this proposal been convicted of or had a civil judgement rendered against them or commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction: violation of Federal or State antitrust statute or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property: (c) Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default. I understand that a false statement on this certification may be grounds for rejection of this proposal or termination of the award. In addition, under 18 USC Sec. 1001, a false statement may result in a fine of up to $10,000 or imprisonment for up to 5 years, or both. Typed Name & Title of Authorized Representative Signature of Authorized Representative Date 0 I am unable to certify to the above statements. My explanation is attached. EPA Form 5700-49 (11-88) CAMPAIGN CONTRIBUTIONS DISCLOSURE California law prohibits a party, or an agent, from making campaign contributions to AQMD Governing Board Members or members/alternates of the Mobile Source Pollution Reduction Committee (MSRC) of $250 or more while their contract or permit is pending before the AQMD; and further prohibits a campaign contribution from being made for three (3) months following the date of the final decision by the Governing Board or the MSRC on a donor's contract or permit. Gov't Code §84308(d). For purposes of reaching the $250 limit, the campaign contributions of the bidder or contractor plus contributions by its parents, affiliates, and related companies of the contractor or bidder are added together. 2 C.C.R. § 18438.5. In addition, Board Members or members/alternates of the MSRC must abstain from voting on a contract or permit if they have received a campaign contribution from a party or participant to the proceeding, or agent, totaling $250 or more in the 12-month period prior to the consideration of the item by the Governing Board or the MSRC. Gov't Code §84308(c). When abstaining, the Board Member or members/alternates of the MSRC must announce the source of the campaign contribution on the record. Id. The requirement to abstain is triggered by campaign contributions of $250 or more in total contributions of the bidder or contractor, plus any of its parent, subsidiary, or affiliated companies. 2 C.C.R. §18438.5. In accordance with California law, bidders and contracting parties are required to disclose, at the time the application is filed, information relating to any campaign contributions made to Board Members or members/alternates of the MSRC, including: the name of the party making the contribution (which includes any parent, subsidiary or otherwise related business entity, as defined below), the amount of the contribution, and the date the contribution was made. 2 C.C.R. §18438.8(b). The list of current AQMD Governing Board Members can be found at the AQMD website (www.agmd.gov). The list of current MSRC members/alternates can be found at the MSRC website (http://www.cleantransportationfunding.org). SECTION I. Please complete Section I. Contractor: RFP #: List any parent, subsidiaries, or otherwise affiliated business entities of Contractor: (See definition below). SECTION II Has contractor and/or parent, subsidiary, or affiliated company, or agent thereof, made a campaign contribution(s) totaling $250 or more in the aggregate to a current member of the South Coast Air Quality Management Governing Board or members/alternates of the MSRC in the 12 months preceding the date of execution of this disclosure? ❑ Yes ❑ No If YES, complete Section II below and then sign and date the form. If NO, sign and date below. Include this form with your submittal. Campaign Contributions Disclosure, continued: Name of Contributor Governing Board Member or MSRC Member/Alternate Amount of Contribution Date of Contribution Name of Contributor Governing Board Member or MSRC Member/Alternate Name of Contributor Governing Board Member or MSRC Member/Alternate Name of Contributor Governing Board Member or MSRC Member/Alternate Name of Contributor Amount of Contribution Date of Contribution Amount of Contribution Date of Contribution Amount of Contribution Date of Contribution Governing Board Member or MSRC Member/alternate Amount of Contribution Date of Contribution I declare the foregoing disclosures to be true and correct. By:_ Title: Date: DEFINITIONS Parent, Subsidiary, or Otherwise Related Business Entity. (1) Parent subsidiary. A parent subsidiary relationship exists when one corporation directly or.indirectly owns shares possessing more than 50 percent of the voting power of another corporation. (2) Otherwise related business entity. Business entities, including corporations, partnerships, joint ventures and any other organizations and enterprises operated for profit, which do not have a parent subsidiary relationship are otherwise related if any one of the following three tests is met: (A) One business entity has a controlling ownership interest in the other business entity. (B) There is shared management and control between the entities. In determining whether there is shared management and control, consideration should be given to the following factors: (i) The same person or substantially the same person owns and manages the two entities; (ii) There are common or commingled funds or assets; (iii) The business entities share the use of the same offices or employees, or otherwise share activities, resources or personnel on a regular basis; (iv) There is otherwise a regular and close working relationship between the entities; or (C) A controlling owner (50% or greater interest as a shareholder or as a general partner) in one entity also is a controlling owner in the other entity. 2 Cal. Code of Regs., § 18703. l (d).