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CITY OF DIAMOND BAR
CITY COUNCIL AGENDA
October 18, 2011
Next Resolution No. 2011-41
Next Ordinance No. 06(2011)
STUDY SESSION: 5:45 p.m., Room CC-8
® Presentation of Documents Related to Conversion of the City of
Diamond Bar Public Financing Authority Variable Rate Lease
Revenue Bonds, Series 2002A to a Fixed Rate.
Public Comments
CALL TO ORDER: 6:30 p.m.
PLEDGE OF ALLEGIANCE: Mayor
INVOCATION: Associate Pastor Alex Barrett
Church of the Valley
ROLL CALL: Council Members Everett, Herrera,
Tanaka, Mayor Pro Tem Chang, Mayor
Tye
APPROVAL OF AGENDA: Mayor
1. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS:
1.1 Proclaiming the month of November, 2011 as Pulmonary Hypertension
Awareness Month.
Written materials distributed to the City Council within 72 hours of the City Council
meeting are available for public inspection immediately upon distribution in the City
Clerk's Office at 21825 Copley Dr., Diamond Bar, California, during normal business
hours.
October 18, 2011 PAGE 2
NEW BUSINESS OF THE MONTH:
1.2 Presentation of Certificate Plaque to See's Candies, 1117 S. Grand
Avenue as Business of the Month, October, 2011.
2. CITY MANAGER REPORTS AND RECOMMENDATIONS:
2.1 Introduction of Deputy Kimberly Whitlow, new STAR Deputy for Diamond
Bar.
3. PUBLIC COMMENTS: "Public Comments" is the time reserved on each
regular meeting agenda to provide an opportunity for members of the public to
directly address the Council on Consent Calendar items or matters of interest to
the public that are not already scheduled for consideration on this agenda.
Although the City Council values your comments, pursuant to the Brown Act, the
Council generally cannot take any action on items not listed on the posted
agenda. Please complete a Speaker's Card and give it to the City Clerk
(completion of this form is voluntary). There is a five-minute maximum time limit
when addressing the City Council.
4. RESPONSE TO PUBLIC COMMENT: Under the Brown Act, members of the
City Council may briefly respond to public comments but no extended discussion
and no action on such matters may take place.
5. SCHEDULE OF FUTURE EVENTS:
5.1 Washington Park Ground Breaking Ceremony — Saturday, October 22,
2011 — 9:00 a.m., 21208 Washington Street.
5.2 Planning Commission Meeting — October 25, 2011 — 7:00 p.m.,
AQMD/Government Center Auditorium, 21865 Copley Drive.
5.3 Parks and Recreation Commission Meeting — October 27, 2011 — 7:00
p.m., AQMD/Government Center Hearing Board Room, 21865 Copley
Drive.
5.4 Hall of Horrors — October 30th — 31't, 2010 — 6:00 — 9:00 p.m., Heritage
Park, 2900 S. Brea Canyon Road.
5.5 Fall Fun Festival — October 31, 2010 — 4:30 — 8:30 p.m., - Heritage Park,
2900 S: Brea Canyon Road.
5.6 City Council Meeting — November 1, 2011- 6:30 p.m., AQMD/Government
Center Auditorium, 21865 Copley Drive.
5.7 Election Day — November 8, 2011 - Polls will be open 7:00 a.m. to 8:00
p.m.
October 18, 2011 PAGE 3
6. CONSENT CALENDAR:
6.1 City Council Minutes — Regular Meeting of October 4, 2011 — Approve
as submitted.
6.2 Planning Commission Minutes — Regular Meeting of August 23, 2011 —
Receive and file.
6.3 Ratification of Check Register — Dated September 29, 2011 through
October 12, 2011 totaling $1,558,159.17.
Requested by: Finance Department
6.4 Award of Design and Construction Administration Services Contract
for the 2011-2012 Community Development Block Grant (CDBG) Curb
Ramp Installation Project to Infrastructure Engineers in the Amount
of $30,830, and Authorize a Contingency Amount of $3,000 for
Change Orders to be Approved by the City Manager, for a Total
Authorization Amount of$33,830.
Recommended Action: Award.
Requested by: Public Works Department
6.5 Adopt Resolution No. 2011-XX: Approving the Application for .
$89,608 of Land and Water Conservation Grant Fund, Which if
Awarded, Requires an $89,670 Match from the City, for the Grand
View Trail Link in the Summitridge Park Trail System.
Recommended Action: Adopt.
Requested by: Community Services Department
6.6 Approve Plans and Specifications and Award Construction Contract
for the 21810 East Copley Drive Interconnect Project to Protech
Engineering Corp. in the Amount of $35,350 and Authorize a
Contingency Amount of$4,500 for Contract Change Orders to be
Approved by the City Manager, for a Total Authorization Amount of
$39,860.
Recommended Action: Approve and Award.
Requested by: Public Works Department
October 18, 2011 PAGE 4
6.7 Award Professional Engineering Services Contract for On-Call Traffic
Engineering with (a) Advantec Consulting Engineers; (b) Iteris; (c)
Sasaki Transportation Services; (d) Warren Siecke; (e) Fehr & Peers;
and, (f) KOA Corporation for a Period of Three (3) Years.
Recommended Action: Award.
Requested by: Public Works Department
6.8 Award Professional Engineering Services Contract for On-Call Civil
Engineering with (a) Hall and Foreman, Inc.; (b) Onward
Engineering; (c) Harris and Associates; and, (d) DMS Consultants for
a Period of Three (3) Years.
Recommended Action: Award.
Requested by: Public Works Department
6.9 Award Professional Engineering Services Contract for On-Call Soils
and Geotechnical Engineering Services with (a) Leighton and
Associates, Inc.; (b) Wildan Geotechnical; and (c) Ninyo and Moore
for a period of Three (3) years.
Recommended Action: Award.
Requested by: Public Works Department
6.10 Approve Contract Increase with Freeway Electric for the Traffic
Signal Installation at Brea Canyon Cutoff Road and the Southbound
State Route 57 Freeway Ramp in the Amount of $6,000 for a total
Authorization Amount of$176,515.
Recommended Action: Approve.
Requested by: Public Works Department
6.11 Adopt Resolution No. 2011-XX: Ratifying and Reconfirming the
Design Guidelines Applicable to the Gateway Corporate Center and
Amending a Portion of Resolution No. 89-104 to Allow On Street
Parking of Vehicles Along Portions of Bridge Gate Drive and Valley
Vista Drive.
Recommended Action: Adopt.
Requested by: Public Works Department
October 18, 2011 PAGE 5
6.12 Authorize'City Manager to Continue Finance Department Consulting
Services with Glenn Steinbrink for a Total Cost of Not-to-Exceed
$76,000.
Recommended Action: Authorize.
Requested by: City Manager
6.13 Authorize the City Manager to Purchase Various Telecommunication
and Security Equipment from CDWG in an Amount Not-to-Exceed
$290,000 which Includes all Required Training and Professional
Design Services for Installation; and Appropriate $90,000 from COPS
Funds.
Recommended Action: Authorize.
Requested by: IS Department
6.14 Approve a Contract with Time Warner Cable to Relocate Existing
Fiber and COAX Cabling from 21825 Copley Drive to 21810 Copley
Drive in the Amount of $27,247 and Authorize Change Orders, as
Required, up to $6,000 for a Total Authorization of$32,247.
Recommended Action: Approve.
Requested by: IS Department
7. PUBLIC HEARINGS: None.
8. COUNCIL CONSIDERATION:
8.1 Adopt Resolution No. 2011-XX: Approving Documents Related to the
Conversion of the City of Diamond Bar Public Financing Authority
Variable Rate Lease Revenue Bonds, Series 2002A from a Variable
Interest Rate to a Fixed Interest Rate and Authorizing and Directing
Certain Action in Connection therewith: Approval of Remarketing
Agreement; Preliminary Reoffering Memorandum; Amendment No. I
to Lease Agreement; Continuing Disclosure Certificate; Financial
Advisor Contract and Bond Counsel Agreement.
Recommended Action: Adopt and Approve.
Requested by: City Manager
October 18, 2011 PAGE 6
RECESS TO PUBLIC FINANCING AUTHORITY:
1 CALL TO ORDER: Chairman
ROLL CALL: Authority Members Herrera, Tanaka, Tye
VC/Chang, C/Evereft
2. PUBLIC COMMENTS: "Public Comments" is the time reserved on each
regular meeting agenda to provide an opportunity for members of the public to
directly address the Authority on Consent Calendar items or matters of interest to
the public that are not already scheduled for consideration on this agenda.
Although the Public Financing Authority values your comments, pursuant to the
Brown Act, the Authority generally cannot take any action on items not listed on
the posted agenda. Please complete a Speaker's Card and give it to the
Authority Secretary (completion of this form is volunta[y). There is a five-minute
maximum time limit when addressing the Public Financing Authority.
3. CONSENT CALENDAR:
3.1 Public Financing Authority Minutes:
(a) Annual Meeting of December 7, 2010 —Approve as submitted.
(b) Special Meeting of October 4, 2011 —Approve as submitted.
4. AUTHORITY CONSIDERATION:
4.1 Adopt Resolution No. PFA-XX: Approving the Execution and
Delivery of Documents in Connection with the Conversion of the
Interest Rate to a Fixed Rate with Respect to the City of Diamond Bar
Public Financing Authority Variable Rate Lease Revenue Bond,
Series 2002A and Authorizing and Directing Certain Actions in
Connection therewith: Approval of Remarketing Agreement;
Preliminary Reoffering Memorandum; Amendment No. 1 to Lease
Agreement; Amendment No. 1 to Indenture
Recommended Action: Adopt and Approve.
Requested by: Executive Director
5. AUTHORITY MEMBER COMMENTS: Items raised by individual
Authority Members are for Authority discussion. Direction may be given at
this meeting or the item may be scheduled for action at a future meeting.
ADJOURN PUBLIC FINANCING AUTHORITY MEETING:
RECONVENE CITY COUNCIL MEETING:
October 18, 2011 PAGE 7
9. COUNCIL SUB-COMMITTEE REPORTS/COUNCIL MEMBER COMMENTS:
10. ADJOURNMENT:
Agenda No. 6 . 1
MINUTES OF THE CITY COUNCIL
REGULAR MEETING OF THE CITY OF DIAMOND BAR
OCTOBER 4, 2011 DRAFT,
CALL TO ORDER: Mayor Pro Tern Ling-Ling Chang called the Regular
City Council meeting to order at 6:32 p.m. in The Government Center/SCAQMD
Auditorium, 21865 Copley Drive, Diamond Bar, CA.
PLEDGE OF ALLEGIANCE: Council Member Everett led the Pledge of Allegiance.
INVOCATION: Pastor Mark Hopper, Evangelical Free Church, gave
the invocation.
ROLL CALL: Council Members Ron Everett, Jack Tanaka, Mayor
Pro Tern Ling-Ling Chang.
Absent: Council Member Carol Herrera and Mayor Steve Tye
were excused.
Staff Present: James DeStefano, City Manager; David Doyle,
Assistant City Manager; Michael Jenkins, City Attorney; Ken Desforges, IS Director;
David Liu, Public Works Director; Bob Rose, Community Services Director; Greg
Gubman, Community Development Director; Glenn Steinbrink, Interim Finance Director;
Ryan McLean, Assistant to the City Manager; Rick Yee, Senior Civil Engineer; Kimberly
Young, Associate Engineer; Anthony Santos, Senior Management Analyst; Lauren
Hidalgo, Public Information Specialist, and Tommye Cribbins, City Clerk.
APPROVAL OF AGENDA: CM/DeStefano recommended that Agenda Item 7.1
be continued to either the November 1 or 15, 2011 Regular City Council meeting and
asked that action be taken at that time.
1. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS:
1.1 Presentation of City Tile to Lorry Meyer, Recreational Specialist, upon her
retirement. CM/DeStefano stated that due to Ms. Meyer being under the
weather the City Tile was presented to her at her retirement breakfast this
morning by both by CfFanaka and C/Evereft.
1.2 MPT/Chang and Council Members Everett and Tanaka presented a City
Tile to Heidi Gallegos, Former Chief Executive Officer of the Regional
Chamber of Commerce upon her departure to become the Chief
Executive Officer of the Chamber of Commerce in Eastvale.
2. CITY MANAGER REPORTS AND RECOMMENDATIONS:
2.1 CM/DeStefano updated the City Council on the "One City-One Zip" effort
the City is working on to change the 91789 portion of the community to
91765 for distribution of mail. Although the U.S. Postal Service indicated
that it would be sending out the surveys in September, they were pushed
back and at this time the Postal Service has indicated that the surveys will
be coming out October 17, 2011. If the results of the survey are favorable
the zip code change will become effective July 2012 allowing for a one-
OCTOBER 4, 2011 PAGE 2 CITY COUNCIL
Year grace period to July 2013.
MPT/Chang stated that a 91789 resident expressed to her today that she
and her neighbors are anxious and excited to see the zip code change in
hopes of improving mail delivery.
3. PUBLIC COMMENTS:
Deborah Ashby, representing SCAQMD updated the residents on upcoming
events and invited the public to participate in the 23d Annual Clean Air Awards
luncheon at the Biltmore Hotel in downtown Los Angeles on October 7. She also
announced that the gas driven lawnmower exchange for clean cordless electric
mowers will be held in Mission Viejo on Saturday, in Norco on October 22 and in
the San Gabriel Valley, a date which will be announced. She went on to
announce that there will be an Air Quality and Transportation Conference in Los
Angeles on October 19, and a no-cost Clean Air Fair for Seniors on Wednesday,
October 26 in Anaheim which includes free transportation and lunch.
Jesse Lanz, L.A. County Library Manager, stated that residents could follow
library activities and events on Facebook and Twitter. He announced new
programs offered by the Library - "Barks and Books" during which children read
to a live therapy dog and civics classes for individuals studying to take the
citizenship exam. He also announced that this year's Book for the "Read
Together D.B." program will be The Maltese Falcon by Dashiell Hammett. He
then stated that the library offers download of eBooks and are now compatible
with the Kindle.
Kristal Splinder, co-editor of The Windmill, announced that the 50 Year
Anniversary of the publication would be next year and that the Windmill can be
found online at www.thewindmillonline.com as well as on Facebook and Twitter
@thewindmillofd iamond bar.
4. RESPONSE TO PUBLIC COMMENTS: None Offered
5. SCHEDULE OF FUTURE EVENTS:
5.1 Planning Commission Meeting — October 11, 2011 — 7:00 p.m.,
SCAQMD/Government Center Auditorium, 21865 Copley Drive.
5.2 Traffic and Transportation Commission Meeting — October 13, 2011 —7:00
p.m., SCAQMD/Government Center Hearing Board Room, 21865 Copley
Drive.
5.3 City Council Meeting — October 18, 2011 — 6:30 p.m.,
SCAQMD/Government Center Auditorium, 21865 Copley Drive.
OCTOBER 4, 2011 PAGE 3 CITY COUNCIL
6. CONSENT CALENDAR: C/Tanaka moved, C/Evereft seconded, to approve the
Consent Calendar as presented. Motion carried by the following Roll Call:
AYES: COUNCIL MEMBERS: Everett, Tanaka, MPT/Chang
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: Herrera, M/Tye
6.1. CITY COUNCIL MINUTES:
6.1.1 Study Session of September 20, 2011 —Approved as submitted.
6.1.2 Regular Meeting of September 20, 2011 —Approved as submitted.
6.2 PARKS AND RECREATION COMMISSION MINUTES — Regular Meeting
of August 25, 2011 — Received and Filed.
6.3 RATIFIED CHECK REGISTER — Dated September 15, 2011 through
September 28, 2011 totaling $1,496,068.68.
6.4 APPROVED TREASURER'S STATEMENT — For the Month of August
2011.
6.5 ADOPTED RESOLUTION NO. 2011-39: APPROVING FINAL TRACT
MAP NO. 71396 FOR THE SUBDIVISION OF AIR SPACE FOR A 30-
UNIT OFFICE CONDOMINIUM LOCATED IN THE DIAMOND HILLS
PLAZA.
6.6 ADOPTED RESOLUTION NO. 2011-40: A JOINT RESOLUTION OF
THE BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES
ACTING ON BEHALF OF LOS ANGELES COUNTY GENERAL FUND,
LOS ANGELES COUNTY LIBRARY, LOS ANGELES COUNTY
CONSOLIDATED FIRE PROTECTION DISTRICT, LOS ANGELES
COUNTY FLOOD CONTROL, THE BOARD OF DIRECTORS OF
COUNTY SANITATION DISTRICT NO. 21 OF LOS ANGELES COUNTY,
AND THE GOVERNING BODIES OF GREATER LOS ANGELES
VECTOR CONTROL DISTRICT, CITY OF DIAMOND BAR, THREE
VALLEYS MUNICIPAL WATER DISTRICT, WALNUT VALLEY WATER
DISTRICT, WALNUT VALLEY WATER DISTRICT IMPROVEMENT
DISTRICT #3, WALNUT VALLEY WATER DISTRICT IMPROVEMENT
DISTRICT #4, APPROVING AND ACCEPTING NEGOTIATED
EXCHANGE OF PROPERTY TAX REVENUES RESULTING FROM
ANNEXATION TO COUNTY SANITATION DISTRICT NO. 21.
6.7 APPROVED AMENDMENT NO. 1 TO THE MEMORANDUM OF
UNDERSTANDING (MOU) BETWEEN THE CITY AND THE LOS
ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
FOR "STATE ROUTE 60/LEMON AVENUE PARTIAL INTERCHANGE
(ON AND OFF RAMPS) CONSTRUCTION PROJECT".
OCTOBER 4, 2011 PAGE 4 CITY COUNCIL
6.8 APPROVED FISCAL YEAR 2011-12 APPROPRIATION ADJUSTMENTS
FOR CARRY-FORWARD EXPENDITURES, CAPITAL PROJECT
CARRYOVERS, AND FIRST QUARTER ADJUSTMENTS.
6.9 REJECTED THE BID SUBMITTED BY HORIZONS CONSTRUCTION
COMPANY, REJECTED THE BID PROTEST SUBMITTED BY MICON
CONSTRUCTION AND AWARDED THE CONSTRUCTION CONTRACT
TO RANCHO PACIFIC ENGINEERING, INC. FOR CONSTRUCTION OF
WASHINGTON PARK IN THE AMOUNT OF $465,109.32; PLUS A
CONTINGENCY OF $46,511 (10%) FOR A TOTAL AUTHORIZATION OF
$511,620.32; AND APPROPRIATED $20,000 OF PARK DEVELOPMENT
FUNDS TO FULLY FUND THE PROJECT.
7. PUBLIC HEARING:
7.1 ADOPT RESOLUTION NO. 2010-33A: AMENDING RESOLUTION NO.
2010-33 ESTABLISHING AND ADOPTING A SCHEDULE OF RATES,
FEES AND CHARGES, FOR BUILDING AND SAFETY CONSTRUCTION
SERVICES PROVIDED BY THE CITY.
CM/DeStefano stated that as previously indicated staff is requesting that
this matter be continued to a later date to allow staff to conduct public
outreach through the City's website as well as other means of
communication in order to receive public comments on the issue of
building and safety fees. CM/DeStefano then advised that staff is
recommending that the Public Hearing be opened for anyone wishing to
speak on this matter after which the public hearing be continued to either
November 1 or November 15, 2011 for further consideration.
MPT/Chang opened the Public Hearing.
Allen Wilson said he was concerned that the Council visited this issue a
little over a year ago and that since then the City has lost Ralph's Market,
Hallmark, and Acapulco which were critical businesses for this community.
He stated that he has observed that there has been almost no activity for
serious construction matters within the City due to economic concerns. In
addition, the report states that despite the recommended increase, fees
will not reach full cost recovery levels and that the total overall increase in
revenue is unknown at this time as it is dependent upon future project
volumes. He did not see anything in the report that indicated the level of
revenues the City had accumulated over the past year, two, three or four
years and that the report indicates a thorough staff review determined that
building fees and permit fees had not been amended. Mr. Wilson
indicated that it appears that all permit fees will double which in his opinion
will hurt home builders. Further, it is troubling to him that two City Council
Members are not present this evening and that he would like to see this
item continued until such time as the other two council members are
OCTOBER 4, 2011 PAGE 5 CITY COUNCIL
present to hear what they have to say.
With no other public comments being offered MPT/Chang asked for
Council direction.
C/Evereft moved, C/Tanaka seconded to continue the Public Hearing to
November 15, 2011. Motion carried by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Everett, Tanaka, MPT/Chang
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: Herrera, M/Tye
8. COUNCIL CONSIDERATION: None
RECESS: MPT/Chang recessed the Regular City Council Meeting to the Public
Finance Authority at 7:03 p.m.
RECONVENE: MPT/Chang reconvened the Regular City Council Meeting from the
Public Financing Authority Meeting at 7:06 p.m.
State Senator Bob Huff stated that since the State Legislature is on fall break it gives
him the opportunity to reconnect with his constituents. He came to tonight's meeting
from a Chino Hills community meeting where residents are fighting the 200 foot towers
for the Tehachapi Renewable Line. He then announced that the big news of the year in
Sacramento is of course the budget and the matter of 9 billion dollars of "risky
assumptions". While D.B. has a Redevelopment Agency it does not have a project area
unlike most cities in his district do and when the Governor wanted to kill redevelopment
he was scoring 1.7 billion by doing so. This matter has been challenged legally and is
now before the State's Supreme Court and believes there is a good probability the cities
will win as they have in the past when the State has tried to take local monies. There is
another amount of Prop 98 monies, 40 percent of which goes to K-14 education. The
California Teachers Association and the leadership cut a deal to forgo this money and
balance the budget with taxes being put on the ballot for November 2012 to reimburse
these monies. The School Board Administration and other administrators have
challenged this as well. There are other items including Medicare assumptions that
were used to balance the budget. While trigger cuts were put in place if revenue
assumptions did not materialize prior notice to the legislature was added so that the
constituencies could get energized to lobby Sacramento so the triggers would not be
pulled. Bottom line is that it is still difficult for the State to live within its means. D.B. is
to be commended for putting forth a fiscally prudent budget each year which has led to
significant reserves which has further led to the City's ability to take advantage of the
weak real estate market and buy the City Hall and build it out. He wished the State
could learn from the lessons of D.B. Next year with the economy continuing to struggle
and unemployment reaching past 12 percent again, the State expects jobs and the
economy to dominate its schedule. He continues to dialogue with all of his cities
including D.B. and it is his pleasure to represent the citizens of this community.
OCTOBER 4, 2011 PAGE 6 CITY COUNCIL
MPT/Chang congratulated Senator Huff on being recognized as Legislator of the
Year, by the League of California Cities and thanked him for fighting for local
control.
9. COUNCIL SUBCOMMITTEE REPORTS/COUNCIL MEMBER COMMENTS:
C/Tanaka reported on his attendance at the following events: D.B. Breakfast
Lions and Leo Clubs at DBHS and Chaparral Middle School. Thursday before
last he attended the D.B. Seniors Italian Dinner Dance; this morning the D.B.
Seniors hosted a continental breakfast for Recreation Specialist, Lorry Meyer,
who retired from the City after nine years of service, primarily working with the
senior groups. C/Tanaka stated he is very pleased with the of the construction
contract for the construction of Washington Park.
C/Everett said the celebration for Lorry Meyer was to honor an exemplary
individual who served this community well and was a great team leader and team
player. Participating in various roles are five Parks and Recreation
Commissioners who heard from Brownie Troop 2234 about a falling hazard at
Sycamore Canyon Park near two tot lots and a stream. The Commissioners
went directly to that agenda item which also addressed erosion control in the
same area. Previous to this time., D.B. Mom's Club had discussed the same
concerns with staff and donated money for materials to address the problem.
Together, the Community Services staff, two D.B. clubs and five volunteer
Commissioners voted to approve staffs recommendation and the Mom's Club
agreed that their donation be spent for materials which the City is now
anticipating installation of a lodge pole fence (complimentary fencing) and
signage by the Conservation Corp. He clarified his comments of the September
20 meeting regarding Item 6.9 General Plan and said he intended what the
minutes reflected about staffs preparation of the required Annual State Report
on the status of D.B.'s General Plan. However, his personal interest and
commitment is to strengthen the economic content component of the City's
General Plan going forward. For example, the vision for the community is
stimulating and relevant. However, his interest and concern is for the residents
and business professionals to review the document and he encouraged
participation in order to have a current economic development strategic plan.
This is a most difficult challenge today and every day and would like to see
everyone in a brainstorming mode for the benefit of the City by getting serious
about economic development.
MPT/Chang reminded everyone to track her activities on behalf of the City on
Facebook and Twitter. Last week she and CM/DeStefano attended the League
of California Cities Conference in San Francisco during which Senator Bob Huff
received the Legislator of the Year award from the League for protecting local
control. She stated that she serves on the Revenue and Taxation Policy
Committee and attended the meeting to discuss legislation. She testified at the
last County Redistricting Hearing into support of Plan A-3 which is to have D.B.
remain within Assemblyman Knabe's jurisdiction. Under both alternative plans S-
OCTOBER 4, 2011 PAGE 7 CITY COUNCIL
2 and P-1, millions of individuals would be needlessly moved destroying the
connections and relationships that have been built over decades. She was
pleased to report that at the end of the meeting the supervisors voted 4-1 to
support amended Plan A-3. She participated in the Elite Board Meeting
conference call during which an -accountability component in the Division's
Strategic Plan was discussed which is a legislative scorecard. Data from last
year revealed that the top five senators and top four assembly members who
voted with the League LA Division are all Republicans. The City appreciates
support from legislators who step up to support local control. She will be serving
on the committee that establishes criteria for the scorecard and will keep the
community updated on their progress. Today she participated in the new D.B.
Educational Community Roundtable. She and other parents formed the
roundtable to address issues that have arisen over the years regarding how to
bridge the gap between the two different school districts. She then read the
group's mission statement. The organization is kicking off with the elementary
school components; and following that will expand to middle schools and
potentially, the high schools. Anyone interested in serving please contact
MPT/Chang. MPT/Chang reminded everyone that the October 17 zip code
survey is very important. She congratulated Lorry Meyer on her retirement and
thanked her for her service to D.B.
ADJOURNMENT: With no further business to conduct, MPT/Chang adjourned
the Regular City Council meeting at 7:25 p.m.
TOMMYE CRIBBINS, CITY CLERK
The foregoing minutes are hereby approved this day of 72011.
MAYOR PRO TEM LING-LING CHANG
Agenda No. 6.2
MINUTES OF THE CITY OF DIAMOND BAR
REGULAR MEETING OF THE PLANNING COMMISSION
AUGUST 23, 2011
CALL TO ORDER:
Chairman Shah called the meeting to order at 7:02 p.m. in the South Coast Air Quality
Management District/Government Center Auditorium, 21865 Copley Drive, Diamond
Bar, CA 91765.
PLEDGE OF ALLEGIANCE: Vice Chairman Lee led the Pledge of Allegiance.
1. ROLL CALL: -
Present: Commissioners Jimmy Lin, Steve Nelson, Tony
Torng; Vice Chairman Kwang Ho Lee, Chairman Jack Shah
Also present: Greg Gubman, Community Development Director; Grace
Lee, Senior Planner; Natalie Tobon, Planning Technician; and Stella Marquez,
Senior Administrative Assistant:
2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None.
3. APPROVAL OF AGENDA. As presented.
4. CONSENT CALENDAR:
4.1 Minutes of the Regular Meeting of July 12, 2011
C/Torng moved,.0/Nelson seconded, to approve the Minutes of the
Regular,Meeting of July 12, 2011, as amended. Motion carried by the
following Roll Call vote:
AYES: COMMISSIONERS: Lin, Nelson,Torng, Chair/Shah
NOES: COMMISSIONERS: None
ABSTAIN: COMMISSIONERS: VC/Lee
ABSENT: COMMISSIONERS: , None
4.2 Minutes of the Regular Meeting of July 26, 2011.
VC/Lee moved, C/Torng seconded, to approve the minutes of the Regular
Meeting of July 26, 2011, as presented:
AUGUST 23, 2011 PAGE 2 PLANNING COMMISSION
AYES: COMMISSIONERS: Lin, Nelson, Torng, VC/Lee
NOES: COMMISSIONERS: ' None
ABSTAIN: COMMISSIONERS Chair/Shah
ABSENT: COMMISSIONERS: None
5. OLD BUSINESS: None.
6. NEW BUSINESS:.
6.1 General Plan Status Report for. 2011
SP/Lee presented staffs report and proposed.the Planning Commission to
recommend approval of the General Plan Status Report for 2011 to the
City Council.
C/Torng asked where Silver Tip Park was located . and CDD/Gubman
responded that the park is off Longview Drive. C/Torng asked if the NFL
Stadium1
ro ect had to be included in the report whether or not it would
p
happen. SP/Lee responded that commitments regarding the NFL stadium
were provided by the City of Industry and have been included in the report
regardless .of whether the stadium is built in Industry or downtown Los
Angeles.
C/Lin asked if Diamond Bar had a diagram and cost indications of what
would impact the City's streets and CDD/Gubman responded that the
settlement agreement was deliberately, vague with respect to how the
funds would be earmarked., The commitment is. to . provide public
improvements and services that have a nexus/relationship to the impacts
that the stadium would impose. There is not a particular intersection where
the money would be spent; it could be` to improve intersections or to
provide other amenities that would somewhat offset the potential impacts
to the quality of ,for
in the. City. Funds cannot be spent on something that
cannot be tied to the stadium but the City has a lot of latitude as to how
the funds can be spent.
C/Lin moved, C/Nelson seconded to recommend approval of the General
Plan Status Report for 2011 to the.City Council. Motion carried by the
following Roll Call vote:
AUGUST 23, 2011 PAGE 3 PLANNING COMMISSION
AYES: COMMISSIONERS: Lin, Nelson, Torng, VC/Lee,
Chair/Shah
NOES COMMISSIONERS: None
ABSENT: COMMISSIONERS: None
7. PUBLIC HEARINGS:
7.1 Development Review and Minor Conditional Use Permit
No. PL2011-72 — Under theauthority of Development Code
Sections 22 48, and 22.56,the applicant, Ricky Huang and property owner
Duncan Yeung, requested approval to construct a 318 square foot
addition to the front of an existing 1,952 square-foot single family home,
and a Minor Conditional Use Permit for an existing non-conforming front
yard setback (15' 9" from the front property line where 20' is required on
one side and 10' is required on the other), and non-conforming distance to
the structure on the adjacent lot (10' 1" to the.structure to the north where
15' is required) on a 7,288 square-foot (0.17 acre) lot. The subject
property is zoned Low Medium Residential (RLM) with an underlying .
General Plan land use designation of Low Density Residential.
PROJECT ADDRESS: 1580 Kiowa Crest Drive
Diamond Bar; CA 91765
PROPERTY OWNER: Duncan.Yeung
1580 Kiowa Crest Drive
Diamond Bar, CA 91765
APPLICANT: Ricky Huang
12515 Morningside Street
EI Monte,,CA 91732
PT/Tobon presented- -staff's report and recommended. Planning
Commission approval of Development Review and Minor Conditional Use
Permit No. PL2011-72, based on the Findings of Fact, and.subject to the
conditions of approval as listed within the resolution.
C/Nelson asked for confirmation that the standards called for a 20 foot
'setback and the existing setback because it was built to Los Angeles
County standards which is 15' 9", and the proposed does not go beyond
15' 9" and with the addition, is still within the maximum lot coverage of
40 percent to which PT/Tobon responded"correct.
AUGUST 23, 2011: - PAGE 4 PLANNING COMMISSION
C/Lin asked under what conditions a setback variance would be granted
and not granted. PT/Tobon explained that this is nota Variance but a
Minor Conditional Use Permit to continue an existing setback that was
built under Los Angeles County standards. On Page 5 of staff's report, it
states that "the City encourages homeowners to make appropriate
improvements to their properties even if the existing improvements do not
fully conform to current development standards, etc." This project meets
the findings for the Minor Condition Use Permit.
Chair/Shah opened the public hearing.
Duncan Yeung said that he has lived in Diamond Bar for more than
25 years and the reason for this request is to be able to accommodate his
family in a contemporary home.
Chair/Shah closed the public hearing.
C/Nelson said he has always been a proponent of making sure families
can stay in Diamond Bar. He does not feel that this Minor Conditional Use
Permit is egregious or extreme in any way.
C/Nelson moved,. C/Torng seconded, to approve Development Review
and Minor Conditional Use Permit No. PL2011-72, based on the. Findings
of Fact, and subject to the conditions of approval as listed within the
resolution. Motion carried by the following Roll Call vote:
AYES: COMMISSIONERS: Lin, Nelson, Torng, VC/Lee
Chair/Shah
NOES: COMMISSIONERS: None
ABSENT: COMMISSIONERS:. None
7.2 Conditional Use Permit and Parking Permit No. PL20.11-251 - Under the
authority of Diamond Bar Development Code Section 22.58; the applicant,
Saanand Sethee, Steel Lotus LLC, and the property owner,.Country Hills Holding
LLC, requested Conditional. Use. Permit approval fora child daycare .facility at an
existing 7,450 square foot building at the south end of the Diamond Hills Plaza.
A parking permit is requested to share access and parking with Diamond Hills
Plaza. The subject property is zoned Community Commercial (C-2) with an
underlying General Plan land use designation of General Commercial.
PROJECT ADDRESS:',, 21385 Cold Spring Lane
Diamond Bar, CA 91.765
AUGUST 23, 2011 PAGE 5 PLANNING COMMISSION
PROPERTY OWNER: Country Hills Holding, LLC
8115 Preston Road, Suite 400
Dallas, TX 75225
APPLICANT: Saanand Sethee
Steele Lotus LLC
14514 Central Avenue
Chino Hills, CA 91710 .
PT/Tobon. presented staff's report and recommended Planning
Commission approval of Conditional Use Permit and Parking Permit
No. PL2011-251, based on the. Findings of Fact, and subject to the
conditions of approval as listed within the ,Resolution.
VC/Lee commented that Daycare Centers are great for the community.
He asked for clarification on`the parking requirement'and shared parking
demand analysis on Page 7, and the statement,-that peak hours and
parking needs do not conflict with the existing uses. However; there is no
foundation for.this statement. ' PT/Tobon stated that in the Traffic and
. 'Parking Assessment (Attachment 3) it was noted.that the daytime peak
hours are 1:00'to 2:00 p.m. and the evening hour is 6:00 p.m. The table
indicates that there are betWeen 152 and 173 available during those times
and on the weekend there are between 323 and 326 available parking
.spaces during those. times.-. According to- the Traffic and Parking
Assessment there would ba no conflict with the traffic for the Daycare use..
VC/Lee said that when he and his wife visit the centeron the weekends
there are almost noparking spaces available. PT/Tobon stated that there
are a lot of, parking"spaces..available toward the south end of the parking
lot.
C%Nelson'as.ked if-the individuals who monitor child movement will cover
the reciprocal parking area .as well as the on-parcel area.. and. PT/Tobon
responded "correct".' and referred the Commission. back to the slide
showing the'path of travel where a staff member will monitor safe crossing
for the children for which a condition is included
Chair/Shah ,asked why there was not a staff member required to be
present tomonitor children in the afternoon. PT/Tobon responded that the
afternoon. program runs from 2:20 p.m. to 6:30 p:m: and:the after school
program would provide -shuttle service for the children which would take
them adjacent to the entrance to the Daycare Center for drop off.
AUGUST 23, 2011 PAGE, 6 PLANNING COMMISSION
C/Torng felt that parents would park and take their, children to the door of
,the Daycare Center and as long as staff has asked that a monitor be
present that should suffice. He asked if there was a limit on the capacity
of young children in this building. PT/Tobon stated that maximum number
proposed is the maximum number the City would allow. The applicant
must also obtain,a maximum capacity from the Fire Department, and the
Building and Safety Division before occupancy is permitted. C/Torng
asked if there was a daycare currently operating at this location and
PT/Tobon responded that the building was vacant. C/Torng. asked when
the daycare would commence operation if the Planning , Commission
approved the CUP and Parking Permit and PT/Tobon referred C/Torng to
the applicant to respond.
C/Lin asked for clarity on the table and trip generations. CDD/Gubman
explained that the table shows the previous average daily trips for the
entire shopping center and compares it to the current situation with the
amendments to the shopping center remodel that occurred since the 2005
approval C/Lin asked if the building is being used and PT/Tobon
reiterated that it is currently vacant. C/Lin asked if there was.help to direct !
the parents driving to the building and PT/Tobon responded that the !
accented pathway is laid out with brick. SP/Lee explained that there are
existing paved surfaces/sidewalks adjacent to the parking spaces. When
one crosses from the parking.area to the other side of the parking area the
path is marked with brick pavers that distinguishes. the pedestrian
pathways. C/Lin asked if the applicant was willing to hire a full time
crossing guard to provide safety of the children. PT/Tobon explained that
as it is indicated in staff's report and in the resolution, the applicant would.
have a staff member monitor the area. C/Lin questioned the safety of the
children in this proposal. CDD/Gubman stated that the children would be ,
prohibited from going from their parents' vehicles to the entrance of the
daycare center unescorted so they must be escorted by an adult from the
building entrance to and from the vehicle. There will be no unsupervised
pedestrian Y Y re are no physical
barriers to keep .the . children and their escorts . on
edestnan actiyit b the children. The fact that the
those- ..'pedestrian
pathways is the reason for recommending that an attendant be present to
provide enforcement to ensure the parents and children follow those paths
to provide for maximum safety. In addition, staff has included a condition
to re-evaluate how the behavior, pattern, and habits of the daycare center
patrons actually work in real life. CDD/Gubman further "stated that it is
difficult to' contemplate where there may ,be conflicts or issues that staff
would ;need to specifically address; therefore, have included .a condition to
allow the businessto commence operations and provide for a test of how
AUGUST 23, 2011 PAGE 7 PLANNING COMMISSION
the traffic would flow. After reaching an equilibrium', staff will better be
able to address any unforeseen pedestrian and vehicle traffic safety that
must be resolved.
C/Lin asked how many staff members the daycare would employ and
where they would park and PT/Tobon responded that there 'would be 13
staff members present and that they would be directed to park away from
the parking lot in front of the building.
Chair/Shah said he too was concerned about the safety of the students
and that if the City was certain to make,it safe, it seemed to him to be a
reasonable solution for the time being.' CDD/Gubman added that the
operators of the daycare center are also under, the scrutiny, of their
insurance carriers that will have expectations for.keeping the students
safe in order to keep the insurance in effect. The City will not defer to the
insurance company, rather stating that it will be an additional level of
scrutiny with respect to liability and safety.
C/Torng said that access was limited to one entrance on the south parking
lot and PT/Tobon pointed out the two ingress/egress points using the
overhead and indicated the point at which there is no access.
Chair/Shah opened the public hearing:
Saanand Sethee, Kiddie Academy of Diamond Bar, said he has worked
on this project for several months and everyone is excited to see it come
to fruition. His family is a franchisee of Kiddie Academy, a national
franchise based in Baltimore with 110 locations nationwide. He believes
Kiddie Academy is a good fit becauseof the national support and local
and area` network of residents. He' plans to completely remodel the
interior with a"state of the art interior and playground area for the kids from.
Diamond Barr and surrounding areas. He asked for the Commission's
support of this project.
C/Nelson asked if the applicant would be open to working with the owner
of the shopping center to, put blue lines adjacent to the brick walkway to
delineate pathways and to put pedestrian crossing signs up coming from
the shopping center, and coming off of Cold Spring. Mr. Sethee said he
would work .with the owner .to see if .the owners would approve these.
installations.
VC/Lee concurred with C/Nelson. He asked if the applicant concurred
with staff's recommendation°to have a staff member present to guide
AUGUST 23, 2011 PAGE 8 PLANNING COI4i M.I.SSION
pedestrian and vehicular traffic for the safety of the children. Mr. Sethee
responded that he will require staff members to not park in the 17 internal
parking spaces and will point out the parent travel paths in the `Parent
Handbook" so that they know exactly where and how they should be
traveling to and from the building. In addition, it is a state requirement that
parents accompany their children to and from the childcare center and at
no time will a child be unaccompanied by a parent. He .stated that he
intends to comply with staffs condition that a staff member will be present
during the required times to guide vehicle and pedestrian traffic. VC/Lee
said his question was whether the applicant could meet the recommended
condition to have a staff member or security guard present during the
required hours and Mr. Sethee said he believed that they would be willing
to do that. So far they have considered only the two recommendations
mentioned in the Planning Department's report but if the Commission is
asking for additional, probably 30 minutes would be sufficient during peak
times but they must also consider the flow of traffic with respect. to when
parents actually come to the center to drop off their children and it will be
determined through the enrollment process. There are a couple of
enrollment schemes — one for a full day program and another for a one-
half day program so it will depend on the capacities during different times
of the day as to what the adjustments will be as they materialize.
C/Lin suggested the applicant work with the property owner and the City's
Traffic Engineer to mitigate the situation. He suggested that the applicant
could work with the property owner to restripe the parking spaces and red
line a certain area so that no. cars would be allowed to park.in the area
allowing the shortest distance possible for crossing the driveway. VC/Lee
said the suggestion made sense to him because if there is a red line the
driver has time to recognize pedestrians are close. Mr. Sethee felt the
parking>spaces were beneficial because one does not have to cross the
pathway and he is hoping that he can guide parents to drop off and pick
- up at a location he pointed to when.the parking lot is full so that the kids.
can exit onto the curb and walk to the front of the building.
Chair/Shah asked if the applicant had read staff's report and concurred
with the conditions of approval to which the applicant responded that
certainly they.had. He asked staff to verbalize additional conditions prior
to the Commission's approval.
CDD/Gubman offered to reflect back to the Commission what he heard.
He believed that-he heard a suggestion that there be some signage similar
to what one might.see in school zones and staff can add a condition
requiring similar signage to. alert motorists. that they.are in a children's:
AUGUST 23, 2011 PAGE 9 PLANNING COMMISSION
pedestrian safety zone. Examples of where those could be located would
be .starting at the Cold Spring Drive approach. Staff can work out the
details of those and a condition requiring that'a pedestrian safety alert
signage program be incorporated into the site layout. The next comment
he heard was from VC/Lee for staff to specify a minimum 30-minute
continuous timeframe for an attendant to be out in the parking lot to
monitor the arriving and departing students and parents and presently, the
Commission is still focusing on the two peak periods indicated in staff's
report but would add the condition that during those peak periods the
pedestrian activity be monitored for a minimum of 30-minutes. He
believed the third comment was to stripe a pedestrian path by removing
one of the parking spaces on left side of the entry approach somewhere
midway along that row of parking spaces to reflect the tendency for the
parents and other pedestrians to seek the shortest 'path-of travel. He does
not believe. the property owner is present this evening; however, the
Commission. has the authority to impose that as a condition, that one of
those parking spaces be removed to accommodate such striping which
can be an additional condition of approval.
SP/Lee stated that the property owner is present.
Chair/Shah said that although the City dictates the design, it is always
good for the applicant to come up with a proposed solution for the parking
recommendation made by the Commission such as signing and striping
and let the property owner decide whether they want to put in a crosswalk.
He does not believe the Commission should take on the liability of
deciding where to place a crosswalk.` In this process, the Commission will
place a condition for a plan to be reviewed and approved accordingly.
VC/Lee said he concurred with the Chair's comments.
CDD/Gubman said the condition could be worded more generally to say
that the applicant may include those components than the Commission
discussed and have the Public Works staff review the plan so that rather
than continuing this matter it can be conditioned for technical review of the
applicant's pedestrian safety circulation plan. .
Chair/Shah thanked.Mr. Gubman and asked if the,property owner wished
to address the Commission.
Richard Yeh, representing' the owner of Diamond Hills Plaza, asked if
there was anything that he needed to respond to other than being
encouraging and supportive of the applicant. H.is.firm owns everything in
the center except for the AAA building and parcels on the north .end.
AUGUST 23,.2011 PAGE 10 PLANNING COMMISSION
C/Nelson asked if Mr. Yeh would have any problem with the striping of the
crosswalk. or signage being discussed this evening and. Mr. Yeh
responded in concept no, but the idea of losing a parking spot to create a
crosswalk in the middle section as earlier referred to would not necessarily
be a good idea for the shopping center. Although there is abundant
parking, any idea of losing more parking spaces would be.resisted by the
property owner. C/Nelson asked if he felt that would trump child safety
and Mr. Ye said that obviously, child safety is the most important thing but
his point is that there can .be a crosswalk without having to lose a parking
space.
C/Lin asked if the property owner concurred with the findings of the Traffic
Engineer's report and Mr. Ye said he is not a traffic engineer and he would
not be able to comment. C/Lin said that the report refers to a residual of
156 plus spaces and the loss of one space would be minimal at best in the
grand scheme of things and the Commission is asking for a six foot wide
striped area for a walkway and if the property owner were to restripe the
rest of the parking there may not be any spaces lost. Mr. Ye said he
believed Diamond Bar has a minimum width for parking spaces and that
would not be an option. To Mr. Lin's point that there are 156 and losing
one space in an abstract way is correct but he believed there could be a
crosswalk that started at the end of the parking space. To Mr. Lee's point,
the property owner would have to consider whether that is the best place
for a crosswalk given that it is much closer to the entrance of the shopping
center .than the proposed red stripe area, given there is already a stop
sign where the red striped line is. C/Lin said he believed the decision
should be left to the traffic engineers. C/Lin asked if Mr. Yeh knew the
minimum width and Mr. Ye said he believed it was 20 feet. CDD/Gubman
said the minimum width is 9 feet and Mr. Ye said that 20 feet must be the
required length.
C/Torng asked if the applicant had the capacity figures and Mr. Sethee
said he does not yet have the numbers because the. process has .to go
through Fire Department. More importantly, the more rigid standard is
likely to. be the.California State Licensing standard which will issue the
childcare license for this building. In addition to the City of Diamond Bar's
Building ,and Safety Department, the Fire Department will come to the
building to give the business a Certificate of Occupancy and the State of
California will send a childcare licensing person to the site to determine
what the square footage is and how much is usable'for children. The state
q .
has, a requirement that each child have a minimum.of 35 square feet of
interior space after subtracting hallway
s,; office spaces; closets, etc.; and
that is howthe center arrived at the 120 number.. The state also has
AUGUST 23, 2011 PAGE 11 PLANNING COMMISSION
maximum classroom sizes per age group depending on the age of the
children. For the younger children the maximum classroom size is smaller
and as the children get older the classroom capacity increases. These
numbers have been. constructed with safety in mind. In short, the
requirements put in place by the state licensing board will be much more
stringent than the fire departments.requirements.
VC/Lee asked when the applicant plans to open the facility and
Mr. Sethee said he anticipates a March 2012 opening.
.Chair/Shah closed the public hearing.
C/Lin said he believed. Mr. Sethee was a very sincere person and would
live up to what he. agreed to do and he believed Diamond Bar needed
such a facility to provide convenience for the working fathers and mothers.
VC/Lee cautioned the property owner that the Commission's mission for
child safety should be uppermost in the minds of all concerned.
C/Lin moved, VC/Lee seconded, to approve Conditional Use Permit.and
Parking Permit No. PL2011-251, based on the Findings of Fact, and
subject to the conditions of approval as listed within the draft resolution
and the addition of a. condition to stipulate that the applicant will work with
staff.to present a satisfactory child safety route to the childcare center -
proposal. Motion carried by the following Roll Call voter
AYES: COMMISSIONERS: Lin, Nelson, Torng, VC/Lee
Chair/Shah
NOES: COMMISSIONERS: None
ABSENT: COMMISSIONERS: None
8. PLANNING COMMISSIONER COMMENTS/INFORMATIONAL ITEMS:
VC/Lee reiterated that the City must visit on the issue of the safety of the young
children who will occupy a building in'this shopping center.
9. STAFF COMMENTS/INFORMATIONAL ITEMS:
9.1 Public Hearing dates for future projects.
CDD/Gubman stated that, there are no agenda items for the next regularly
scheduled meeting on September 13 and staff recommends that the
Commission adjourn tonight's meeting to September 27, 2011. On the
AUGUST 23, 2011 PAGE 12 PLANNING COMMISSION
September 27 agenda there will be at least two items: An after-school
tutoring school in a 900 square foot space at the north end of the same
shopping center as the daycare center and, a Conditional Use Permit for a
wireless cell site facility proposed to be mounted atop the street signal at
the corner of Grand Avenue and Summitridge Drive.
CDD/Gubman updated the Commission regarding the See's Candy's soft
opening that took place on August 22 and there will be an official ribbon
cutting ceremony on September 9 with classic cars on display. The
community and staff are very pleased to have a national retail tenant
choose Diamond Bar at that particular intersection and are hoping that the
presence of a national retail tenant will send a message to other national
retail chains that this .is a lucrative site to which they will hopefully be
attracted. This is especially important since Ralph's Market closed last
week. At this time, the City is not aware of a lease for a new tenant to
occupy the currently vacant 40,000 square foot space. The City in
collaboration with the owner of that shopping center contacted 19 grocery
retail chains and most passed on the site, many because they simply are
not in an expansion mode at this time and others did not show interest in
the site due to potential location conflicts with other stores within their
market regions. There are at least a couple of grocers that are still
interested, Fresh and Easy being an interested grocer. Their typical store
size is about 25,000 square feet so they would.not be able to occupy the
entire space. Should they decide to locate in the center 15,000 square
feet would be divided off and staff would hope to see a drug store or
compatible business share that shell. There is also another national well-
known retailer that continues to show interest in the site and would be able.
to occupy the entire 40,000 square feet. If any developments are
disclosed to staff he will be sure to pass .the information along to the
Commission. He wished everyone a happy and safe Labor Day weekend.
C/Lin said, he would not be available for the September .27 Planning
Commission meeting.
C/Lin asked CDD/Gubman what kind of sales tax the City gleaned from
Ralph's on an annual basis and CDD/Gubman' responded that he could
not reveal this information as it is confidential information.
10. SCHEDULE OF FUTURE EVENTS:
As listed in ton.ight's.agenda:;
AUGUST 23', 2011 PAGE 13 PLANNING COMMISSION
ADJOURNMENT: With no further business before the Planning Commission,
Chairman Shah adjourned the regular meeting at 8:32 p.m. to September 27, 2011.
The foregoing minutes are hereby approved this 27th day of September, 2011.
Attest:
Respectfully Submitted,
Greg Gubma
Community Development Director
Jack Shah, I hairman
Agenda 9 6 . 3
Meeting Date: October 18, 2011
CI'ITT��_
CITY COUNCIL AGENDA REPORT
r��•nRPOR���
TO: Honorable Mayor and Members of the City Council
FROM: James DeStefano, City Ma
TITLE: Ratification of Check Register
gied September 29, 2011 through October
12, 2011 totaling $ 1,558,159.17.
RECOMMENDATION:
Ratify.
FINANCIAL IMPACT:
Expenditure of$ 1,558,159.17 in City funds.
BACKGROUND:
The City has established the policy of issuing accounts payable checks on a weekly
basis with City Council ratification at the next scheduled City Council meeting.
DISCUSSION:
The attached check register containing checks dated September 29, 2011 through
October 12, 2011 for $ 1,558,159.17 is being presented for ratification. All payments
have been made in compliance with the City's purchasing policies and procedures.
Payments have been reviewed and approved by the appropriate departmental staff and
the attached Affidavit affirms that the check register has been audited and deemed
accurate by the Finance Director.
PREPARED BY:
Luisa Fua
Accounting Technician
REVIEWED BY:
Finance Director
Attachments: Affidavit and Check Register— 9/29/11 through 10/12/11.
C!IT
CITY OF DIAMOND BAR
CHECK REGISTER AFFIDAVIT
The attached listings of demands, invoices, and claims in the form of a check register
including checks dated September 29, 2011 through October 12, 2011 has been
audited and is certified as accurate. Payments have been allowed from the following
funds in these amounts:
Description Amount
General Fund $777,570.36
Com Org Support Fund $1,500.00
Prop A-Transit Fund 100,904.21
Prop C-Transit Tax Fund 11,407.26
Integrated Waste Mgt Fund 2,337.50
AB2766 -Air Qlty Mgt Fund 3,397.50
Com Dev Block Grand Fund 6,541.58
LLAD 38 Fund 22,350.09
LLAD 39 Fund 13,648.34
LLAD 41 Fund 6,729.04
Enrgy Ef& Cnsvtn Blk Grant 10,134.41
Capital Imp Projects Fund 601,638.88
$1,558,159.17
Signed:
Glenn Steinbrink
Finance Director
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
9/29/2011 11-PP 20 PAYROLL TRANSFER PIR TRANSFER-11/PP 20 001 10200 164,849.63 $175,112.94
9/29/2011 PAYROLL TRANSFER P/R TRANSFER-11/PP 20 112 10200 3,616.27
9/29/2011 PAYROLL TRANSFER PIR TRANSFER-11/PP 20 113 10200 4,608.26
9/29/2011 PAYROLL TRANSFER P/R TRANSFER-11/PP 20 115 10200 1,522.56
9/29/2011 PAYROLL TRANSFER P/R TRANSFER-11/PP 20 125 10200 516.22
9/2912011 1 95988 AARP MATURE DRIVING-SEPT 2011 0015350 1 45300 1 88.00 $88.00
9/29/2011 1 95989 JACCESS CONTROL SECURITY SECURITY SVCS-DBC 9/9 0015333 1 45010 1 1,279.95 $1,279.95
9/29/2011 95990 ADVANTEC CONSULTING ENGINEERS INC CITYWIDE TRFFGAUG 2011 1135553 1 44000 1 755.00 $755.00
9/29/2011 1 95991 ILA SANDRA AKESSON IFACILITY REFUND-SYC CYN 1 001 1 23002 1 50.00 $50.00
9/29/2011 1 95992 JALBERTSONS SUPPLIES-COMM SVCS 0015350 1 41200 1 128.56 $128.56
9/29/2011 1 95993 ALLIANT INSURANCE SERVICES INC JSPCL INS-ENVIRNMNTL EVENT 1155515 1 42355 1 591.87 $591.87
9/29/2011 95994 JAMERICAN PUBLIC WORKS ASN IMEMBERSHIP DUES-R YEE 0015551 1 42315 1 181.251 $181.25
9/29/2011 1 95995 ANAHEIM GLASS INC VEH MAINT-COMM SVCS 0015310 1 42200 1 250.85 $250.85
9/29/2011 95996 JAT&T MOBILITY CELL CHRGS-CMGR AUG/SEPT 0014030 1 42125 1 53.091 $53.09
9/29/2011 1 95997 18ENESYST P/R DEDUCTIONS-9130/11 001 21105 1 699.76 $699.76
9/2912011 1 95998 BUCKNAM&ASSOCIATES INC ENG SVCS-PAVEMNT SYSTEM 0015510 1 45221 1 5,420.00 $5,420.00
9/29/2011 1 95999 CALIFORNIA COACH AUTO BODY VEH MAINT-COMM SVCS 0015310 1 42200 1 95.00 $95.00
9/29/2011 96000 CERTIFIED TRANSPORTATION SVCS INC TRANSPORTATION-PMPKN PTCH 1125350 1 45310 1 384.96 $769.92
9/29/2 ICERTIFIED TRANSPORTATION SVCS INC TRANSPORTATION-PMPKN PTCH 1125350 45310 384.96
9/29/2011 1 96001 ERIC CHANG REFUND-EN 11-739 001 1 23012 1 794.75 $794.75
9/29/2011 1 96002 ICITY OF MALIBU EQ-SAFE 0014090 1 41300 1 500.001 $500.00
Pagel
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
9/29/2011 96003 CPS HR CONSULTING TESTING MATERIALS-H/R 0014060 44000 598.00 $598.00
9/29/2011 96004 CPSRPTC CPRS CONF-MURPHEY 0015350 42330 309.00 $1,236.00
9/29/2011 CPSRPTC CPRS CONF-KNOX 0015350 42330 309.00
9/29/2011 CPSRPTC CPRS CONF-MEYERS 0015350 42330 309.00
9/29/2011 CPSRPTC CPRS CONF-MCKITRICK 0015350 42330 309.00
9/29/2011 96005 CPSRPTC CPRS CONF-GRUNDY 0015310 42330 309.00 $1,545.00
9/29/2011 CPSRPTC CPRS CONF-OWENS 0015310 42330 309.00
9/29/2011 CPSRPTC CPRS CONF-HERNDON 0015310 42330 309.00
9/29/2011 CPSRPTC CPRS CONF-LIANG 0015310 42330 309.00
9/29/2011 CPSRPTC CPRS CONF-ROBERTO 0015310 42330 309.00
9/29/2011 1 96006 ICTS LANGUAGE LINK ITRANSLATION SVCS-ELECTION 0014030 1 42390 1 375.001 $375.00
9/29/2011 96007 DAPEER ROSENBLIT&LITVAK LLP LEGAL SVCS-DECORAH TRUST 0014020 44023 1,662.00 $9,772.98
9/29/2011 JDAPEER ROSENBLIT&LITVAK LLP ILEGAL SVCS-AUG 2011 0014020 44023 8,110.98
9/29/2011 96008 DAVID EVANS AND ASSOCIATES INC PROF.SVCS-FPL 2009-375 001 23010 9.49 $1,448.35
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2009-375 001 23010 1.71
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2009-375 001 34430 -1.71
9/29/2011 DAVID EVANS AND ASSOCIATES INC PROF.SVCS-FPL 2010-404 001 23010 1,028.50
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2010-404 001 23010 185.13
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2010-404 001 34430 -185.13
9/29/2011 DAVID EVANS AND ASSOCIATES INC PROF.SVCS-FPL 2007-274 001 23010 321.50
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2007-274 001 23010 57.87
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2007-274 001 34430 -57.87
9/29/2011 DAVID EVANS AND ASSOCIATES INC PROF.SVCS-FPL 2010-404 001 23010 88.86
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2010-404 001 23010 15.99
9/29/2011 DAVID EVANS AND ASSOCIATES INC ADMIN FEE-FPL 2010-404 001 34430 -15.99
9/29/2011 96009 DAY&NITE COPY CENTER PRINT SVCS-PLANS&SPECS 0015510 42110 224.79 $769.41
9/29/2011 DAY&NITE COPY CENTER PRINT SVCS-PLANS&SPECS 0015510 42110 149.86
9129/2011 DAY&NITE COPY CENTER PRINT SVCS-APPL FORMS 0015220 42110 299.06
9/29/2011 DAY&NITE COPY CENTER PRINT SVCS-EN 11-715 001 23012 95.70
Page 2
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
9/29/2011 96010 JAMES DESTEFANO REIMS-ICSC CONF 0014030 1 42330 1 341.69 $341.69
9129/2011 1 96011 DELTA DENTAL JOCT 2011-DENTAL PREMIUMS 001 21104 3,583.271 $3,583.27
9/29/2011 96012 CAROL DENNIS PROF.SVCS-AR MINUTIES 0015210 44000 50.00 $425.00
9/29/2011 CAROL DENNIS PROF.SVCS-SS/CC MTG 0014030 44000 225.00
9/29/2011 CAROL DENNIS PROF.SVCS-P&R COMM 0015310 44000 150.00
9/29/2011 96013 DEPT OF TRANSPORTATION ITRFFC SGNL MAINT-MAY/JUN 0015554 1 45507 2,067.15 $2,067.15
9/29/2011 96014 DIAMOND BAR COMMUNITY FOUNDATION COMM ORG SUPPORT FUND 0114010 42355 1,000.00 $1,000.00
9/29/2011 96015 IDIAMOND BAR COMMUNITY FOUNDATION AD-F/FUN FSTVL SEPT/OCT 0014095 1 42115 1 1,000.001 $1,000.00
9/2912011 96016 DIAMOND BAR HAND CAR WASH CAR WASH-POOL VEH 0014090 42200 245.79 $357.69
9/29/2011 DIAMOND BAR HAND CAR WASH CAR WASH-ROAD MAINT 0015554 42200 23.98
9/29/2011 DIAMOND BAR HAND CAR WASH CAR WASH-NGHBRHD IMP 0015210 42200 33.97
9/29/2011 DIAMOND BAR HAND CAR WASH CAR WASH-COMM SVCS 0015310 42200 53.95
9/29/2011 1 96017 DIAMOND BARAMALNUT YMCA DAY CAMP PROG-JUL-AUG 11 1255215 1 42355 1 2,033.001 $2,033.00
9/29/2011 96018 DIANA CHO&ASSOCIATES PROF.SVCS-CDBG JUL 1255215 44000 1,680.00 $3,640.00
9/29/2011 DIANA CHO&ASSOCIATES PROF.SVCS-CDBG AUG 1255215 44000 1,960.00
9/29/2011 1 96019 DIVERSIFIED PARATRANSIT INC ISHUTTLE SVCS-CONCERTS AUG 1 1125350 1 45310 1 2,612.02 $2,612.02
9/29/2011 1 96020 IDOGGIE WALK BAGS INC SUPPLIES-COMM SVCS 1 0015340 1 41200 1 1,686.15 $1,686.15
9/29/2011 96021 DIANA DUNCAN EXCURSION-PUMPKIN PATCH 0015350 1 42410 250.00 $500.00
9/29/2011 IDIANA DUNCAN EXCURSION-PUMPKIN PATCH 0015350 42410 250.00
9/29/2011 1 96022 EDUCATION TO GO CONTRACT CLASS-SUMMER 0015350 1 45320 1 240.00 $240.00
9/29/2011 1 96023 JEMERALD LANDSCAPE SERVICES INC MAINT SVCS-SEPT 11 0014093 1 45300 1 816.001 $816.00
9/29/2011 1 96024 EXPRESS MAIL CORPORATE ACCOUNT 1EXPRESS MAIL-FPL 2011-432 001 1 23010 1 34.80 $190.19
Page 3
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
9/29/2011 96024... EXPRESS MAIL CORPORATE ACCOUNT EXPRESS MAIL-FPL 2011-437 001 23010 17.40 $190.19...
9/29/2011 EXPRESS MAIL CORPORATE ACCOUNT EXPRESS MAIL-FPL 2011-427 001 23010 17.40
9/29/2011 EXPRESS MAIL CORPORATE ACCOUNT EXPRESS MAIL-FPL 2011-438 001 23010 34.80
9/29/2011 EXPRESS MAIL CORPORATE ACCOUNT EXPRESS MAIL-FPL 2011-438 001 23010 17.40
9/29/2011 EXPRESS MAIL CORPORATE ACCOUNT EXPRESS MAIL-FPL 2011-437 001 23010 17.40
9/29/2011 EXPRESS MAIL CORPORATE ACCOUNT EXPRESS MAIL-GENERAL 0014090 42120 16.19
9/29/2011 EXPRESS MAIL CORPORATE ACCOUNT EXPRESS MAIL-FPL 2011-436 001 23010 34.80
9/29/2011 96025 EXTERMINETICS OF SO CAL INC PEST CONTROL-DBC 0015333 45300 75.00 $360.00
9/29/2011 EXTERMINETICS OF SO CAL INC PEST CONTROL-DBC 0015333 45300 40.00
9/29/2011 EXTERMINETICS OF SO CAL INC PEST CONTROL-PETERSON 0015340 42210 50.00
9/29/2011 EXTERMINETICS OF SO CAL INC PEST CONTROL-HERITAGE 0015340 42210 40.00
9/29/2011 EXTERMINETICS OF SO CAL INC PEST CONTROL-PANTERA 0015340 42210 30.00
9/29/2011 EXTERMINETICS OF SO CAL INC PEST CONTROL-PETERSON 0015340 42210 125.00
9/29/2011 1 96026 IFOOTHILL BUILDING MATERIALS INC SUPPLIES-P/WORKS 0014440 1 41200 1 342.561 $342.56
9/29/2011 1 96027 FRAN TONE INC DINNER-SR DANCE 0015350 1 45300 1 2,344.00 $2,344.00
9/29/2011 96028 FREEWAY ELECTRIC T/SIGNAL INSTALL-B/CYN 2505510 1 46412 81,061.00 $72,954.90
9/29/2011 IFREEWAY ELECTRIC RETENTIONS PAYABLE 250 20300 -8,106.10
9/29/2011 1 96029 IFUN EXPRESS SUPPLIES-COMM SVCS 0015350 1 41200 1 585.741 $585.74
9/29/2011 96030 GFB FRIEDRICH&ASSOCIATES INC. tANDSCAPINGASSESSMNT-#38 1385538 44000 157.44 $472.32
9/29/2011 GFB FRIEDRICH&ASSOCIATES INC. LANDSCAPINGASSESSMNT-#39 1395539 44000 157.44
9/29/2011 GFB FRIEDRICH&ASSOCIATES INC. LANDSCAPINGASSESSMNT-#41 1415541 44000 157.44
9/29/2011 1 96031 GRAFFITI CONTROL SYSTEMS GRAFFITI REMOVAL-AUG 11 1 0015230 1 45520 1 4,940.00 $4,940.00
9/29/2011 1 96032 HALL&FOREMAN,INC. PROF.SVCS-HYDROLOGY RPT 1 2505310 1 46415 1 823.501 $823.50
9/29/2011 1 96033 SHIRLEY HELMER SUPPLIES-COMM SVCS 1 0015350 1 41200 1 90.511 $90.51
9/29/2011 1 96034 ILEW HERNDON P&R COMM-AUG 2011 1 0015350 1 44100 1 45.001 $45.00
Page 4
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
9/29/2011 96035 INDUSTRIAL SUPPLIES.COM LLC SUPPLIES-TINY TOTS 0015350 41200 1 1,634.00 $1,634.00
9/29/2011 1 96036 INLAND EMPIRE MAGAZINE AD-DBC OCT 2011 1 0014095 1 42115 1 995.001 $995.00
9/29/2011 1 96037 INLAND EMPIRE STAGES TRANSPORTATION-SR EXCRSN 1 1125350 1 45310 1 793.00 $793.00
9/29/2011 96038 INLAND VALLEY DAILY BULLETIN AD-WASHINGTON PARK 2505310 46415 184.20 $1,475.40
9/29/2011 INLAND VALLEY DAILY BULLETIN LEGAL AD-INTRCNCT PROJ 0015510 42115 161.80
9/29/2011 INLAND VALLEY DAILY BULLETIN LEGALAD-FPL 2011-01 001 23010 366.20
9/29/2011 INLAND VALLEY DAILY BULLETIN LEGALAD-FPL 2011-444 001 23010 385.80
9/29/2011 INLAND VALLEY DAILY BULLETIN LEGAS AD-FPL 2011-440 001 23010 377.40
9/29/2011 1 96039 JINLINE TRANSLATION SERVICES INC TRANSLATION-P/WKS 1155515 42355 190.00 1 $190.001.
9/29/2011 1 96040 JESSE'S AUTO REPAIR INC SMOG INSPECTION-COMM SVCS 0015310 1 42200 1 60.001 $60.00
9/29/2011 1 96041 JOHN L HUNTER&ASSOC. INC NPDES SVCS-AUG 2011 1 0015510 1 44240 1 1,393.75 $1,393.75
9/29/2011 1 96042 IKEITH JOHNSON ENTERTAINMENT-SR DANCE 1 0015350 1 45300 1 350.00 $350.00
9/29/2011 1 96043 KEITH JOHNSON ENTERTAINMENT-SR DANCE 1 0015350 1 45300 1 350.00 $350.00
9/29/2011 1 96044 IKEITH JOHNSON ENTERTAINMENT-SR DANCE 0015350 1 45300 1 350.001 $350.00
9/29/2011 1 96045 IKENS HARDWARE SUPPLIES-ROAD MAINT 1 0015554 1 41250 1 22.25 $22.25
9/29/2011 96046 KENS HARDWARE SUPPLIES-RECREATION 0015350 41200 16.28 $329.72
9/29/2011 KENS HARDWARE SUPPLIES-DBC 0015333 41200 51.00
9/29/2011 KENS HARDWARE SUPPLIES-PARKS 0015310 41200 262.44
9/29/2011 1 96047 LANDS'END BUSINESS OUTFITTERS STAFF SHIRTS-BLDG&SFTY 1 0015220 1 41200 1 321.35 $321.35
9/29/2011 1 96048 IBENNY LIANG IP&R COMM-AUG 2011 0015350 1 44100 1 45.001 $45.00
9/29/2011 96049 LOS ANGELES COUNTY MTA MTA PASSES-SEPT 2011 1125553 1 45535 1 2,915.75 $3,767.50
9/29/2011 LOS ANGELES COUNTY MTA CITY SUBSIDY-SEPT 2011 1125553 45533 851.75
Page 5
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
9/29/2011 96050 LOS ANGELES COUNTY MTA MTA PASSES-TAP AUG 2011 1125553 45535 120.00 $150.00
9/29/2011 LOS ANGELES COUNTY MTA CITY SUBSIDY-AUG 2011 1125553 45533 30.00
9/29/2011 1 96051 ILOS ANGELES COUNTY PUBLIC WORKS INDUSTRIAL WASTE SVCS-JUN 1 0015510 1 45530 1 4,437.161 $4,437.16
9/29/2011 1 96052 LOWE'S BUSINESS ACCOUNT SUPPLIES-RECREATION 1 0015310 1 41200 1 86.181 $86.18
9/29/2011 96053 LPA INC ARCHITCHTL SVCS-LIBRARY 0014093 1 44000 5,536.16 $20,839.94
9/29/2011 LPA INC ARCHITECTURAL SVCS-C/HALL 0014093 44000 15,303.78
9/29/2011 1 96054 MANAGED HEALTH NETWORK OCT 2011-EAP PREMIUMS 1 001 1 21115 1 154.44 $154.44
9/29/2011 1 96055 IMARATHON DISTRIBUTORS SUPPLIES-BINGO CARDS 1 1255215 1 41200 1 352.361 $352.36
9/29/2011 1 96056 MCCAIN CT NET EQ-P/WORKS 1 1565610 1 46250 1 9,330.77 $9,330.77
9/29/2011 1 96057 MCE CORPORATION VEGETATION SVCS-JUL 11 1 0015558 1 45508 1 9,497.65 $9,497.65
9/29/2011 1 96058 MD NEWS AD-PHOTO CONTEST 1 0014095 1 42115 1 300.00 $300.00
9/29/2011 1 96059 MEALS ON WHEELS COMM ORG SUPPORT FUND 1 0114010 1 42355 1 500.00 $500.00
9/29/2011 1 96060 INEXTEL COMMUNICATIONS A/R CHRGS-P/W,CIS,C/D 1 0014090 1 42125 1 703.91 $703.91
9/29/2011 96061 OFFICEMAX INC SUPPLIES-DBC 0015333 41200 273.70 $2,549.20
9/29/2011 OFFICEMAX INC SUPPLIES-DBC 0015333 41200 32.88
9/29/2011 OFFICEMAX INC SUPPLIES-DBC 0015333 41200 106.26
9/29/2011 OFFICEMAX INC SUPPLIES-DBC 0015333 41200 44.70
9/29/2011 OFFICEMAX INC SUPPLIES-DBC 0015333 41200 85.72
9/29/2011 OFFICEMAX INC SUPPLIES-DBC 0015333 41200 9.98
9/29/2011 OFFICEMAX INC SUPPLIES-COMM SVCS 0015350 41200 286.18
9/29/2011 OFFICEMAX INC SUPPLIES-COMM SVCS 0015350 41200 368.22
9/29/2011 OFFICEMAX INC SUPPLIES-COMM SVCS 0015350 41200 34.64
9/29/2011 OFFICEMAX INC SUPPLIES-COUNCIL 0014010 41200 9.30
9/29/2011 OFFICEMAX INC SUPPLIES-CMGR 0014030 41200 171.28
9/29/2011 OFFICEMAX INC SUPPLIES-CMGR 0014030 41200 55.47
Page 6
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
9/29/2011 96061... OFFICEMAX INC SUPPLIES-CMGR 0014030 41200 13.22 $2,549.20...
9/29/2011 OFFICEMAX INC SUPPLIES-CMGR 0014030 41200 25.89
9/29/2011 OFFICEMAX INC SUPPLIES-CMGR 0014030 41200 33.25
9/29/2011 OFFICEMAX INC SUPPLIES-CMGR 0014030 41200 3.59
9/29/2011 OFFICEMAX INC SUPPLIES-CMGR 0014030 41200 22.73
9/29/2011 OFFICEMAX INC SUPPLIES-GENERAL 0014090 41200 401.93
9/29/2011 OFFICEMAX INC SUPPLIES-GENERAL 0014090 41200 5.74
9/29/2011 OFFICEMAX INC SUPPLIES-GENERAL 0014090 41200 182.27
9/29/2011 OFFICEMAX INC SUPPLIES-GENERAL 0014090 41200 357.57
9/29/2011 OFFICEMAX INC SUPPLIES-HIR 0014060 41200 1.50
9/29/2011 OFFICEMAX INC SUPPLIES-H/R 0014060 41200 23.1.8
9/29/2011 1 96062 JOLYMPIC STAFFING SERVICES TEMP SVCS-COM DEV 8/29 1 0014060 1 44000 1 158.88 $158.88
9/29/2011 1 96063 TED OWENS __1_P&R COMM-AUG 2011 0015350 1 44100 45.00 $45.00
9/29/2011 1 96064 PACIFIC TELEMANAGEMENT SERVICES TELEPHONE SVCS-OCT 11 0015340 1 42125 1 495.84 $495.84
9/29/2011 96065 PERS RETIREMENT FUND RETIRE CONTRIB-EE 001 21109 11,272.32 $11,317.89
9/29/2011 IPERS RETIREMENT FUND SURVIVOR BENEFIT 001 21109 45.57
9/29/2011 1 96066 1PROTECTION ONE INC ALARM SVCS-SYC CYN 1 0015340 1 42210 1 31.501 $31.50
9/29/2011 1 96067 PUBLIC STORAGE#23051 RENTAL-STORAGE #2303 1 0014090 1 42140 1 130.00 $130.00
9/29/2011 1 96068 IRICHARD&SHARON STANTON REFUND-EN 11-745 001 23012 1 1,000.001 $1,000.00
9/29/2011 1 96069 RKA CONSULTING GROUP JBLDG&SFTY SVCS-AUG 11 1 0015220 1 45201 1 29,167.66 $29,167.66
9/2912011 1 96070 DAVID A ROBERTO IP&R COMM-AUG 2011 1 0015350 1 44100 1 45.00 $45.00
9/29/2011 1 96071 IRTC MEMORIAL MARKERS INC TILES-DBC 1 0015333 1 42210 514.19 $514.19
9/29/2011 1 96072 S C SIGNS&SUPPLIES LLC SUPPLIES-ROAD MAINT 1 0015554 1 41250 1 1,549.42 $1,549.42
9/29/2011 1 96073 SOUTHERN CALIFORNIA PUBLIC LABOR JMEMBRSHP DUES-VC/RM/DG 1 0014060 1 42315 1 100.001 $100.00
Page 7
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
9/29/2011 1 96074 SEWER&PIPELINE REFUND-EN 11-728 001 1 23012 1 2,000.001 $2,000.00
9/29/2011 1 96075 ISIGN CONTRACTORS INC BANNERS-ARMED FORCES 0015350 1 45300 1 5,168.05 $5,168.05
9/29/2011 96076 ISIMPSON ADVERTISING INC PROF.SVCS-CITY NEWS OCT 0014095 1 44000 1 1,995.00 $1,995.00
9/29/2011 96077 , SMART&FINAL SUPPLIES-SR BINGO 0015350 41200 257.74 $667.02
9/29/2011 SMART&FINAL SUPPLIES-DAY CAMP 0015350 41200 204.56
9/29/2011 SMART&FINAL SUPPLIES-DAY CAMP 0015350 41200 14.97
9/29/2011 SMART&FINAL SUPPLIES-COMM SVCS 0015350 41200 73.29
9/29/2011 SMART&FINAL SUPPLIES-TINY TOTS 0015350 41200 116.46
9/29/2011 96078 SO COASTAIR QUALITY MGT DISTRICT LEASE-CITY HALL OCT 11 0014090 42140 23,749.32 $24,249.32
9/29/2011 ISO COASTAIR QUALITY MGT DISTRICT LEASE-MEETING ROOM 0014090 42140 500.00
9/29/2011 96079 SOUTHERN CALIFORNIA EDISON ELECT SVCS-PARKS 0015340 42126 4,094.57 $17,604.35
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 1385538 42126 505.39
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 39 1395539 42126 391.40
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 41 1415541 42126 221.96
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DBC 0015333 42126 8,502.62
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 1385538 42126 24.93
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 1385538 42126 24.73
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 1385538 42126 49.96
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 0015510 42126 397.79
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-TRFFC CONTROL 0015510 42126 2,098.87
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-TRFFC CONTROL 0015510 42126 504.35
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-TRFFC CONTROL 0015510 42126 271.65
9/2912011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-TRFFC CONTROL 0015510 42126 .353.87
9/29/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-TRFFC CONTROL 0015510 42126 162.26
9/29/2011 1 96080 ISPRINT REFUND-FPL 2006-206 1 001 1 23010 1 760.971 $760.97
9/29/2011 96081 STANDARD INSURANCE OF OREGON OCT 11-LIFE INS PREMS 001 21106 976.51 $3,115.78
9/29/2011 STANDARD INSURANCE OF OREGON OCT 11-SUPP LIFE INS PREM 001 21106 288.00
Page 8
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
9/29/2011 96081... STANDARD INSURANCE OF OREGON OCT 11-STD/LTD 001 21112 1 1,851.27 $3,115.78...
9/29/2011 96082 STUBBIES PROMOTIONS SUPPLIES-P/INFO 0014095 41400 245.72 $2,051.24
9/29/2011 STUBBIES PROMOTIONS SUPPLIES-COMM SVCS 0015350 42110 650.00
9/29/2011 STUBBIES PROMOTIONS SUPPLIES-RECREATION 0015350 45300 500.00
9/2912011 STUBBIES PROMOTIONS SUPPLIES-P/INFO 0014095 41400 655.52
9/29/2011 1 96083 TELEPACIFIC COMMUNICATIONST1 INTERNET SVCS-SEPT 0014070 1 44030 1 967.96 $9 67.96
9/29/2011 1 96084 ITHE GAS COMPANY GAS SVCS-HRTG COMM CTR 1 0015340 1 42126 1 14.301 $14.30
9/29/2011 1 96085 THE SAN GABRIEL VALLEY NEWSPAPER GR LEGALAD-PULTE TRACT 1 0015510 1 42115 1 3,325.52 $3,325.52
9/2912011 96086 THE SAUCE CREATIVE SERVICES PRINT SVCS-COMM SVCS 0015350 42110 900.00 $1,146.00
9/29/2011 ITHE SAUCE CREATIVE SERVICES PRINT SVCS-RECREATION 0015350 45300 246.00
9/29/2011 1 96087 THOMSON WEST PUBLICATIONS-C/CLERK 0014030 1 42320 1 702.61 $702.61
9/29/2011 96088 TIME WARNER INTERNET SVCS-C/HALL 0014070 1 44030 1 252.60 $385.43
9/29/2011 ITIME WARNER INTERNET SVCS-HERITAGE PK 0014070 44030 132.83
9/29/2011 1 96089 TIME WARNER MODEM SVCS-COUNCIL 0014010 1 42130 1 50.99 $50.99
9/29/2011 1 96090 TKE ENGINEERING&PLANNING PROF.SVCS-MASTER PLAN 0015310 1 44300 1 2,500.00 $2,500.00
9/29/2011 1 96091 ITRENCH PLATE RENTAL CO JEQ RENTAL-DBB/STEEP CYN 1 0015554 1 42130 1 225.001 $225.00
9/29/2011 1 96092 UNION BANK OF CALIFORNIA LOC FEES-JUN-SEPT 2011 1 0014090 1 42129 1 26,415.09 $26,415.09
9/29/2011 1 96093 JUS HEALTHWORKS MEDICAL GROUP PC PRE-EMPLOYMENT PHYSICALS 1 0014060 1 42345 1 238.00 $238.00
9/29/2011 96094 VALLEY CREST LANDSCAPE MAINT INC LANDSCAPE MAINT-DBC AUG 0015333 1 45300 5,645.47 $30,249.58
9/29/2011 VALLEY CREST LANDSCAPE MAINT INC LANDSCAPE MAINT-PARKS AUG 0015340 45300 24,604.11
9/29/2011 96095 VANTAGEPOINT TRNSFR AGNTS-303248 9/30/11-PIR DEDUCTIONS 001 21108 4,739.84 $5,772.03
9/29/2011 VANTAGEPOINTTRNSFRAGNTS-303248 9/30/11-LOAN DEDUCTIONS 001 21108 1,032.19
Page 9
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
9/29/2011 96096 WALNUT VALLEY UNIFIED SCHOOL DIST FACILITY RENTAL-JAN-MAR 0015350 42140 4,376.40 $10,812.90
9/29/2011 WALNUT VALLEY UNIFIED SCHOOL DIST FACILITY RENTAL-JAN-MAR 0015350 42140 3,979.50
9/29/2011 WALNUT VALLEY UNIFIED SCHOOL DIST FACILITY RENTAL-APR 0015350 42140 189.00
9/29/2011 WALNUT VALLEY UNIFIED SCHOOL DIST FACILITY RENTAL-MAY 0015350 42140 252.00
9/29/2011 WALNUT VALLEY UNIFIED SCHOOL DIST FACILITY RENTAL-JUN 0015350 42140 189.00
9/29/2011 WALNUT VALLEY UNIFIED SCHOOL DIST FACILITY RENTAL-JUN 0015350 42140 1,827.00
9/29/2011 96097 WALNUT VALLEY WATER DISTRICT IWATER SVCS-DIST 38 1 1385538 1 42126 1 1,684.97 $1,684.97
9/29/2011 1 96098 IWAXIE SANITARY SUPPLY SUPPLIES-PARKS 1 0015340 1 41200 1 518.261 $518.26
9/29/2011 96099 WELLDYNERX SHARPS SVCS-AUG 2011 1155515 44000 16.16 $33.07
9/29/2011 WELLDYNERX SHARP SVCS-AUG 2011 1155515 44000 0.75
9/29/2011 WELLDYNERX SHARP SVCS-SEPT 2011 1155515 44000 16.16
9/29/2011 1 96100 IWEST COAST MEDIA AD-PHOTO CONTEST SEPT 1 0014095 1 42115 1 700.001 $700.00
9/29/2011 1 96101 PAUL WRIGHT A/V SVCS-MTGS SEPT 11 1 0014090 1 44000 1 475.00 $475.00
10/6/2011 1 96102 BERTACOSTA IRECREATION REFUND 1 001 1 34780 1 105.001 $105.00
10/6/2011 1 96103 JADVANTEC CONSULTING ENGINEERS INC ENG SVCS-AUG 2011 1 0015551 1 45222 1 5,361.15 $5,361.15
10/6/2011 96104 ALL CITY MANAGEMENT SERVICES CROSSING GUARD SVCS-AUG 0014411 45410 2,992.86 $8,594.88
10/6/2 JALL CITY MANAGEMENT SERVICES CROSSING GUARD SVCS-AUG 0014411 45410 5,602.02
10/6/2011 1 96105 ILIVIALVAREZ FACILITY REFUND-SYC CYN 001 1 23002 1 50.00 $50.00
10/6/2011 1 96106 CHARLES ANDREU PKNG CITATION HEARING-JUL 1 0014411 1 45405 1 70.001 $70.00
10/6/2011 96107 ARCHITERRA DESIGN GROUP INC PROF SVCS-SILVERTIP PK 2505310 46415 478.75 $500.95
10/6/2011 JARCHITERRA DESIGN GROUP INC PROF.SVCS-SILVERTIP PK 2505310 46415 22.20
10/6/2011 1 96108 IAT&T PH.SVCS-GENERAL 0014090 1 42125 1 43.641 $43.64
10/6/2011 1 96109 IJUSTIN BACHON FACILITY REFUND-DBC 001 1 23002 1 100.001 $100.00
Page 10
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
10/6/2011 96110 GARY BAJET FACILITY REFUND-REAGAN 001 23002 1 50.00 $50.00
10/6/2011 1 96111 JISRAELBECERRA FACILITY REFUND-SYC CYN 001 1 23002 1 50.001 $50.00
10/6/2011 1 96112 IBUCKNAM&ASSOCIATES INC JPAVEMNT MNGMNT SYS-AUG 0015510 1 45221 1 3,635.00 $3,635.00
10/6/2011 96113 CALIFORNIA COMMERCIAL LIGHTING SPPL SUPPLIES-DBC 0015333 41200 315.48 $803.02
10/6/2011 ICALIFORNIA COMMERCIAL LIGHTING SPPL SUPPLIES-DBC 0015333 41200 487.54
10/6/2011 1 96114 ALMA CASTILLO IFACILITY REFUND-DBC 001 23002 500.00 $500.00
10/6/2011 1 96115 IHOWARD CHANG IFACILITY REFUND-PANTERA 001 1 23002 1 50.001 $50.00
10/6/2011 1 96116 KIM CHAVEZ FACILITY REFUND-DBC 001 1 36615 1 800.00 $800.00
10/612011 1 96117 ILORRAINE CHAVEZ IFACILITY REFUND-DBC 001 1 23002 1 350.00 $350.00
10/6/2011 1 96118 MICHAEL CHIOU FACILITY REFUND-DBC 001 1 23002 1 100.001 $100.00
10/6/2011 96119 TERESA CHILI RECREATION REFUND 001 34780 45.00 $85.00
10/6/2011 ITERESA CHILI RECREATION REFUND 001 34780 40.00
10/6/2011 96120 SHINGLIAN CHU FACILITY REFUND-DBC 001 23002 350.00 $450.00
10/6/2011 ISHINGLIAN CHU FACILITY REFUND-DBC 001 23002 100.00
10/6/2011 1 96121 JUNKO CIMINIERI IRECREATION REFUND 1 001 1 34780 1 99.00 $99.00
10/6/2011 96122 1 MAI RA CISNEROS FACILITY REFUND-SYC CYN 1 001 1 23002 1 50.001 $50.00
10/612011 1 96123 ICUMMINS ALLISON CORP ANNL MAINT-CK PERFORATOR 1 0014090 1 42200 1 400.791 $400.79
10/6/2011 1 96124 IJUANA DALY IRECREATION REFUND 1 001 1 34780 1 79.00 $79.00
10/6/2011 1 96125 JAY DAVDA FACILITY REFUND-DBC 001 23002 800.00 $770.00
1016/2011 JAY DAVDA FACILITY CHRGS-DBC 001 36615 -30.00
10/6/2011 1 96126 VINCENT DAVID FACILITY REFUND-HERITAGE 1 001 1 23002 1 200.001 $200.00
Page 11
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
10/6/2011 1 96127 DAY&NITE COPY CENTER PRINT SVCS-P/INFO 0014095 1 42110 1 91.35 $91.35
10/612011 1 96128 DAWN DEHNERT IRECREATION REFUND 1 001 1 34720 1 103.00 $103.00
10/6/2011 1 96129 IRAFAEL DELAROSA IFACILITY REFUND-REAGAN 1 001 1 23002 1 50.001 $50.00
10/6/2011 1 96130 1 DELTA CARE USA OCT 11-DENTAL PREMIUMS 001 21104 1 263.44 $263.44
10/6/2011 1 96131 ILYDIA DEVITA IRECREATION REFUND 001 1 34740 1 79.001 $79.00
10/6/2011 96132 DH MAINTENANCE JANITORIAL SVCS-SEPT 11 0015333 45300 12,250.83 $12,986.00
10/6/2011 JDH MAINTENANCE IJANITORIAL SVCS-PARKS 1 0015340 42210 735.17
10/6/2011 1 96133 IDIAMOND BAR CHINESE AMERICAN ASSN IFACILITY REFUND-PANTERA 001 1 23002 1 300.00 $300.00
10/6/2011 1 96134 DIAMOND BAR MOBIL FUEL-COMM SVCS 1 0015310 1 42310 1 541.831 $541.83
10/6/2011 1 96135 IVERONICA DIOKNO IFACILITY REFUND-PANTERA 1 001 1 23002 1 50.001 $50.00
10/6/2011 96136 DIVERSIFIED PRINTERS PRINT SVCS-CITY NEWS OCT 0014095 42110 3,155.00 $6,544.11
1016/2 IDIVERSIFIED PRINTERS IPRINT SVCS-CITY NEWS SEPT 0014095 42110 3,389.11
10/6/2011 1 96137 RENATE DORREL FACILITY REFUND-HERITAGE 1 001 1 23002 1 50.00 $50.00
10/6/2011 1 96138 IKERRIE DWYER FACILITY REFUND-SYC CYN 001 23002 1 50.001 $50.00
10/6/2011 1 96139 JEMPLOYMENT DEVELOPMENT DEPARTMENT UNEMPLOYMNT CHRGS-2 QTR 1 0014090 1 40093 1 80.451 $80.45
10/6/2011 1 96140 MIRIAM ESPINOZA IFACILITY REFUND-DBC 1 001 1 36615 1 400.00 $400.00
10/6/2011 1 96141 JERICA EVANS RECREATION REFUND 1 001 1 34780 1 55.00 $55.00
10/6/2011 96142 1EXCELLANDSCAPE INSTALL BACKFLOW-SUMMTRDG 1 1395539 1 42210 1 3,200.001 $3,200.00
10/6/2011 1 96143 IFEDEX EXPRESS MAIL-GENERAL 0014090 1 42120 177.26 $362.93
10/6/2011 FEDEX EXPRESS MAIL-GENERAL 0014090 42120 49.31
Page 12
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
10/612011 96143... FEDEX EXPRESS MAIL-GENERAL 0014090 42120 1 136.36 $362.93...
10/6/2011 1 96144 JDAVID FERNANDEZ CONTRACT CLASS-FALL 0015350 1 45320 1 662.40 $662.40
10/6/2011 1 96145 OSVALDO FIALLO IFACILITY REFUND-HERITAGE 1 001 1 23002 1 50.00 $50.00
10/6/2011 96146 DARREN FISHELL FACILITY REFUND-DBC 001 36615 1 77.50 $177.50
10/6/2011 JDARREN FISHELL FACILITY REFUND-DBC 001 23002 1 100.00
10/6/2011 1 96147 IMICHAEL FISHER IFACILITY REFUND-DBC 1 001 1 23002 1 100.00 $100.00
10/6/2011 1 96148 IFRAN TONE INC DINNER-SR DANCE 9/22 1 0015350 1 45300 1 311.00 $311.00
10/6/2011 1 96149 VANESSA GARCIA IRECREATION REFUND 001 1 34780 1 57.00 $57.00
10/6/2011 96150 1GABRIELA GONZALEZ FACILITY REFUND-DBC 001 36615 1 400.00 $400.00
10/6/201196151 GOODRICH CORPORATION FACILITY REFUND-SYC CYN 001 23002 200.00 $270.00
10/6/2011 GOODRICH CORPORATION FACILITY REFUND-SYC CYN 001 36625 25.00
10/6/2011 GOODRICH CORPORATION FACILITY REFUND-SYC GYN 001 36610 45.00
10/6/2011 1 96152 GREGORY S GUBMAN REIMB-APAANNL CONF 1 0015210 1 42330 1 199.74 $199.74
10/6/2011 96153 HALL&FOREMAN,INC. PROF.SVCS-EN 10-715 001 23012 498.00 $4,776.44
10/6/2011 HALL&FOREMAN,INC. ADMIN FEE-EN 07-559 001 23012 10.35
10/6/2011 HALL&FOREMAN,INC. ADMIN FEE-EN 07-559 001 34650 -10.35
10/6/2011 HALL&FOREMAN,INC. PROF.SVCS-PLAN CHECK 0015551 45223 1,465.32
10/6/2011 HALL&FOREMAN,INC. PRORSVCS-PLAN CHECK 0015551 45223 208.12
10/6/2011 HALL&FOREMAN,INC. PROF.SVCS-EN 08-605 001 23012 33.75
10/6/2011 HALL&FOREMAN, INC. ADMIN FEE-EN 08-605 001 23012 6.08
10/6/2011 HALL&FOREMAN,INC. ADMIN FEE-EN 08-605 001 34650 -6.08
10/6/2011 HALL&FOREMAN,INC. ADMIN FEE-EN 10-715 001 23012 89.64
10/6/2011 HALL&FOREMAN,INC. ADMIN FEE-EN 10-715 001 34650 -89.64
10/6/2011 HALL&FOREMAN,INC. PROF.SVCS-EN 06-543 001 23012 517.50
10/6/2011 HALL&FOREMAN, INC. ADMIN FEE-EN 06-543 001 23012 93.15
10/6/2011 HALL&FOREMAN, INC. ADMIN FEE-EN 06-543 001 34650 -93.15
Page 13
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
10/6/2011 96153... HALL&FOREMAN,INC. PROFSVCS-EN 03-397 001 23012 57.50 $4,776.44...
10/6/2011 HALL&FOREMAN, INC. ADMIN FEE-EN 03-397 001 23012 10.35
10/6/2011 HALL&FOREMAN, INC. ADMIN FEE-EN 03-397 001 34650 -10.35
10/6/2011 HALL&FOREMAN,INC. PROFSVCS-EN 07-559 001 23012 57.50
10/6/2011 HALL&FOREMAN,INC. PROF.SVCS-PLAN CHECK 0015551 45223 1,434.37
10/6/2011 HALL&FOREMAN, INC. PROFSVCS-INSPECTIONS 0015510 45227 504.38
10/6/2011 1 96154 MOONJU HAN RECREATION REFUND 1 001 1 34780 1 51.00 $51.00
10/6/2011 96155 HARDY&HARPER INC PAVEMENT MAINT-QUAIL RUN 0015554 45502 11,465.00 $44,145.49
10/6/2011 HARDY&HARPER INC PAVEMENT MAI NT-LONGVIEW 0015554 45502 1,789.89
10/6/2011 HARDY&HARPER INC PAVEMENT MAINT-G/SPRNGS 0015554 45504 30,890.60
10/6/2011 1 96156 JKRYSTAL HAYS jFACILrFY REFUND-HERITAGE 1 001 1 23002 1 200.001 $200.00
10/6/2011 96157 LUCY HONG FACILITY REFUND-SYC CYN 001 36625 20.00 $70.00
10/6/2 ILUCY HONG FACILITY REFUND-SYC CYN 001 23002 50.00
10/6/2011 1 96158 JINLAND VALLEY DAILY BULLETIN LEGALAD-BLDG&SFTY FEES 1 0014030 1 42115 1 539.801 $539.80
10!6/2011 1 96159 FRANCIELLA JAIMES FACILITY REFUND-PANTERA 001 23002 100.00 $150.00
10/6/2011 1FRANCIELLAJAIMES FACILITY REFUND-PANTERA 001 23002 50.00
10/612011 96160 ARJAN JETHWANI FACILITY REFUND-DBC 001 23002 600.00 $600.00
1016/2011 1 96161 ISOFI KASUBHAI FACILITY REFUND-DBC 1 001 1 36615 1 600.00 $600.00
10/6/2011 1 96162 SHELLEY KENNEDY FACILITY REFUND-DBC 1 001 1 23002 1 600.00 $600.00
10/6/2011 96163 KOA CORPORATION ITS SVCS-AUG 2011 1135553 1 44000 787.50 $4,185.00
10/6/2011 KOA CORPORATION ITS SVCS-AUG 2011 1185098 44030 3,397.50
10/6/2011 1 96164 JKYALA SUSHI&JAPANESE CUISINE REFUND-BANNER DEP 1 001 1 34430 1 100.001 $100.00
10/6/2011 1 96165 LANDS'END BUSINESS OUTFITTERS ANNL STAFF SHIRTS 0014095 1 41400 1 1,448.61 $1,448.61
Page 14
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
10/6/2011 96166 LANTERMAN DEV CENTERICOMM INDUSTRIE PARKWAY MAINT-AUG 11 0015558 45503 1 1,982.76 $1,982.76
10/6/2011 1 96167 JDANIEL LEE RECREATION REFUND 001 1 23002 1 50.001 $50.00
10/6/2011 96168 LEIGHTON&ASSOCIATES, INC. PRORSVCS-EN 10-684 001 23012 1,682.00 $2,869.50
10/6/2011 LEIGHTON&ASSOCIATES, INC. ADMIN FEE-EN 10-684 001 23012 302.76
10/6/2011 LEIGHTON&ASSOCIATES,INC. ADMIN FEE-EN 10-684 001 34650 -302.76
10/6/2011 LEIGHTON&ASSOCIATES, INC. PROF.SVCS-EN 11-744 001 23012 1,187.50
10/6/2011 LEIGHTON&ASSOCIATES, INC. ADMIN FEE-EN 11-744 001 23012 213.75
10/6/2011 LEIGHTON&ASSOCIATES,INC. ADMIN FEE-EN 11-744 001 34650 -213.75
1016/2011 1 96169 NAM BILL LIEU IFACILITY REFUND-DBC 001 1 23002 1 100.00 $100.00
10/6/2011 96170 ALDO LIMA FACILITY REFUND-DBC 001 23002 550.00 $750.00
10/6/2011 ALDO LIMA FACILITY REFUND-DBC 001 23002 100.00
10/6/2011 ALDO LIMA FACILITY REFUND-DBC 001 23002 100.00
10/6/2011 1 96171 1PING LIN RECREATION REFUND 001 34780 1 40.00 $40.00
10/6/2011 96172 LOS ANGELES COUNTY CLERKS OFFICE FILING FEE-G/VIEW TRAIL 0015310 44000 75.00 $75.00
10/6/2011 1 96173 IMARCEL MAHFOUZ IRECREATION REFUND 1 001 1 34780 1 51.00 $51.00
10/6/2011 1 96174 IMICHAEL MANOE FACILITY REFUND-DBC 001 1 36615400.00 $400.00
10/6/2011 1 96175 VIRGINIA MARIANO IRECREATION REFUND 001 1 34780 127.00 $127.00
10/6/2011 1 96176 IBRIAN MARQUEZ FACILITY REFUND-DBC 001 23002 550.001 $550.00
10/6/2011 1 96177 ILISAMAY FACILITY REFUND-DBC 1 001 1 36615 1 75.00 $75.00
10/6/2011 96178 MCE CORPORATION ROAD MAINT SVCS AUG 11 0015554 45502 9,152.18 $23,628.00
10/6/2011 MCE CORPORATION RIGHT-OF-WAY MAINT-AUG 11 0015554 45522 1,483.46
10/6/2011 MCE CORPORATION STRIPING&SIGN MAINTAUG 0015554 45506 2,967.36
10/6/2011 MCE CORPORATION VEGETATION CONTROL-AUG 0015558 45508 10,025.00
Page 15
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
10/6/2011 96179 SHAKTI MEHTA FACILITY REFUND-DBC 001 36615 1 400.00 $400.00
10/6/2011 96180 METROLINK METROLINK PASSES-SEPT 11 1125553 45535 83,606.60 $89,195.50
10/6/2011 METROLINK CITY SUBSIDY-SEPT 11 1125553 45533 20,901.65
10/6/2011 METROLINK RETURNED PASSES-SEPT 11 1125553 45535 -15,312.75
10/6/2011 1 96181 MOBILE PRO WIRELESS INC ADDL EQ TMC 1565610 46250 803.641 $803.64
10/6/2011 1 96182 ILOVE JOY MUNANDAR FACILITY REFUND-PANTERA 1 001 1 23002 1 50.00 $50.00
10/6/2011 1 96183 IMUNICIPAL COURT POMONA JUDICIAL DIS PARKING CITEADMIN-AUG 11 001 32230 1 2,684.50 $2,684.50
10/6/2011 1 96184 ASOK NANDI FACILITY REFUND-DBC 1 001 1 23002 1 1,800.001 $1,800.00
10/6/2011 1 96185 1 MARIA NAZARENO IFACILITY REFUND-HERITAGE 001 23002 1 50.00 $50.00
10/6/2011 96186 NINYO&MOORE INC PROF.SVCS-EN 10-698 001 23012 136.00 $136.00
10/6/2011 NINYO&MOORE INC ADMIN FEE-EN 10-698 001 23012 24.48
10/6/2011 NINYO&MOORE INC ADMIN FEE-EN 10-698 001 34650 -24.48
10/6/2011 1 96187 JONWARD ENGINEERING ROAD MAINT-AREA 7 2505510 46411 15,690.00 $17,030.00
10/6/2011 ONWARD ENGINEERING ROAD MAINT-AREA 7 2505510 46411 1,340.00
10/6/2011 96188 ORKIN PEST CONTROL INC PEST CONTROL-NEW C/HALL 0014093 42210 63.37 $258.86
10/6/2011 ORKIN PEST CONTROL INC PEST CONTROL-DIST 38 1385538 45500 63.37
10/6/2011 ORKIN PEST CONTROL INC PEST CONTROL-SYC CYN 0015340 42210 66.06
10/6/2011 ORKIN PEST CONTROL INC PEST CONTROL-SYC CYN 0015340 42210 66.06
10/6/2011 96189 JPAETEC COMMUNICATIONS INC. LONG DIST CHRGSSEPT/OCT 1 0014090 1 42125 1 846.88 $846.88
10/6/2011 1 96190 JANETTE PARRA RECREATION REFUND 001 1 34780 1 51.001 $51.00
10/612011 96191 DINAH PENAFLORIDA FACILITY REFUND-SYC CYN 001 23002 50.00 $70.00
10/6/2011 IDINAH PENAFLORIDA FACILITY REFUND-SYC CYN 001 36625 20.00
10/6/2011 1 96192 PAUL QUAN IRECREATION REFUND 1 001 1 34740 1 40.001 $40.00
Page 16
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/201.1
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
10/6/2011 96193 R F DICKSON COMPANY INC ST SWEEPING SVCS-AUG 0015554 45501 8,292.84 $8,292.84
10/6/2011 1 96194 JALMA RAMOS IRECREATION REFUND 1 001 1 34780 1 99.00 $99.00
10/6/2011 1 96195 DIANA REGALADO IFACILITY REFUND-DBC 1 001 1 23002 1 550.00 $550.00
10/6/2011 96196 REPUBLIC ITS INC TRFFC MAINTJULY2011 0015554 45507 4,102.00 $25,115.36
10/6/2011 REPUBLIC ITS INC TRFFC MAINT-REPAIRS JUL 0015554 45507 5,227.18
1016/2011 REPUBLIC ITS INC TRFFC MAINT G/SPRINGS 0015554 45507 700.00
10/6/2011 REPUBLIC ITS INC TRFFC MAINT-DBB/S/CROSSNG 0015554 45507 495.00
10/6/2011 REPUBLIC ITS INC TRFFC MAINT-HIGHLND VLLY 0015554 45507 1,405.00
10/6/2011 REPUBLIC ITS INC TRFFC MAINTAUG 2011 0015554 45507 4,102.00
10/6/2011 REPUBLIC ITS INC TRFFC MAINT-REPAIRS AUG 0015554 45507 9,084.18
10/6/2011 96197 1 REBECCA REYES RECREATION REFUND 001 34760 1 112.001 $112.00
10/6/2011 1 96198 ISONIA RIOS FACILITY REFUND-PETERSON 1 001 1 23002 1 50.001 $50.00
10/6/2011 1 96199 RAFAEL RODRIGUEZ IFACILITY REFUND-HERITAGE 1 001 1 23002 1 50.001 $50.00
10/6/2011 1 96200 MIKE SAN DIEGO IFACILITY REFUND-REAGAN 1 001 1 23002 1 50.001 $50.00
10/6/2011 1 96201 BALI SANDHU IRECREATTON REFUND 1 001 1 34780 99.001 $99.00
10/6/2011 1 96202 JONI SCHERRER RECREATION REFUND 1 001 1 34780 1 51.001 $51.00
10/6/2011 1 96203 JEDWARD SEGURA IFACILITY REFUND-DBC 1 001 1 23002 1 700.00 $700.00
1016/2011 1 96204 AMEESHA SHAH IFACILITY REFUND-REAGAN 001 1 23002 1 50.00 $50.00
10/6/2011 96205 SOUTHERN CALIFORNIA EDISON ELECT SVCS-TRFFC CONTROL 0015510 42126 139.60 $14,574.57
10/6/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 1385538 42126 46.32
10/612011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 1385538 42126 24.83
10/6/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-PARKS 0015340 42126 4,854.95
10/6/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 38 1385538 42126 524.09
10/6/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 39 1395539 42126 406.28
Page 17
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fundi Dept Acct# Amount Total CheckAmount
10/6/2011 96205... SOUTHERN CALIFORNIA EDISON ELECT SVCS-DIST 41 1415541 42126 234.79 $14,574.57...
10/6/2011 SOUTHERN CALIFORNIA EDISON ELECT SVCS-DBC 0015333 42126 8,343.71
10/6/2011 1 96206 ISPARKILETTS IWATER SUPPLIES-SYC CYN 0015340 1 42130 1 61.84 $61.84
10/6/2011 1 96207 GLENN STEINBRINK PROF.SVCS-INTERN FIN DIR 0014050 1 44000 1 3,680.00 $3,680.00
10/6/2011 96208 STITCHES UNIFORMS&EMBROIDERY IROAD MAINT SUPPLIES 0015554 1 41250 1 268.321 $268.32
10/6/2011 96209 SULLY MILLER CONTRACTING CO RETENTIONS PAYABLE 250 20300 -39,837.75 $509,902.73
10/6/2011 SULLY MILLER CONTRACTING CO RETENTIONS PAYABLE 250 20300 -16,818.10
10/6/2011 SULLY MILLER CONTRACTING CO ROAD MAINT PROJ-AREA 7 2505510 46411 398,377.58
10/6/2011 SULLY MILLER CONTRACTING CO ROAD MAINT PROJ-ZONE 5 2505510 46411 168,181.00
10/612011 96210 THOMAS TAM REFUND-EN 11-723 001 23012 690.20 $690.20
10/6/2011 1 96211 1HEDDYTANG RECREATION REFUND 1 001 1 34780 1 51.00 $51.00
10/6/2011 1 96212 THE GAS COMPANY GAS SVCS-DBC 0015333 42126 182.80 $195.94
10/6/2011 THE GAS COMPANY GAS SVCS-NEW CITY HALL 0014093 42126 13.14
10/6/2011 96213 THE SAN GABRIEL VALLEY NEWSPAPER GR LEGALAD-TRFFC SIGNAL 0015510 42115 166.70 $409.30
10/6/2011 ITHE SAN GABRIEL VALLEY NEWSPAPER GR LEGAL AD-WASHINGTON PK 2505310 46415 242.60
1016/2011 96214 THE SAUCE CREATIVE SERVICES SUPPLIES-F/FUN FESTIVAL 0015350 1 41200 1 267.50 $267.50
10/6/2011 96215 THREE VALLEYS MUNICIPAL WATER DIST MTG-COUNCIL 0014010 1 42325 15.00 $30.00
1 O/E ITHREE VALLEYS MUNICIPAL WATER DIST MTG-COUNCIL 0014010 42325 15.00
10/6/2011 1 96216 TIME WARNER MODEM SVCS-COUNCIL 0014010 1 42130 1 50.99 $50.99
10/6/2011 1 96217 ITIME WARNER IMODEM SVCS-HERITAGE 0015340 1 42126 1 116.011 $116.01
10/6/2011 96218 BALJITTOOR IFACILITY REFUND-DBC 1 001 1 23002 1 500.00 $500.00
10/6/2011 1 96219 TRAFFIC CONTROL SERVICE INC SUPPLIES-ROAD MAINT 0015554 1 41250 358.97 $1,367.03
Page 18
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total Check Amount
10/6/2011 96219... TRAFFIC CONTROL SERVICE INC SUPPLIES-ROAD MAINT 0015554 41250 1 1,008.06 $1,367.03...
10/6/2011 1 96220 TRI-CITIES POOL SERVICE&REPAIR WATER FOUNTAIN MAINT-AUG 1 0015333 1 45300 1 160.00 $160.00
10/6/2011 96222 US BANK COMP MAI NT-I.T. 0014070 42205 2,411.99 $20,782.62
10/6/2011 US BANK SUPPLIES-I.T. 0014070 41200 9.99
10/6/2011 US BANK COMP EQ-I.T. 0014070 41300 60.33
10/6/2011 US BANK ISACA EXAM FEE-I.T, 0014070 42340 375.00
10/6/2011 US BANK MTG SUPPLIES-P/WRKS 0015510 42325 46.76
10/6/2011 US BANK FUEL-COMM SVSC 0015310 42310 274.75
10/6/2011 US BANK FUEL-COMM SVSC 0015310 42310 205.00
10/6/2011 US BANK EQ MAINT-COMM SVCS 0015310 42200 136.31
10/6/2011 US BANK FUEL-COMM SVCS 0015310 42310 395.92
10/6/2011 US BANK SUPPLIES-DBC 0015333 41200 5.43
10/6/2011 US BANK MTG-COMM DEV 0015210 42325 23.33
10/6/2011 US BANK CITYVIEW CONF-TOBON 0015210 42330 421.80
10/6/2011 US BANK SUPPLIES-DAY CAMP 0015350 41200 360.06
10/6/2011 US BANK EXCURSIONS-DAY CAMP 0015350 42410 550.00
10/6/2011 US BANK SUPPLIES-CONCERTS 0015350 41200 1,393.58
10/6/2011 US BANK SUPPLIES-VETERANS DAY 0015350 45300 124.95
10/6/2011 US BANK SUPPLIES-CONCERTS 0015350 45305 135.50
10/6/2011 US BANK SUPPLIES-DBC 0015333 41200 92.38
1016/2011 US BANK EXHIBIT SPACE-DBC 0015333 42141 645.00
10/6/2011 US BANK SUPPLIES-TINY TOTS 0015350 41200 212.01
10/6/2011 US BANK EXCURSION-DAY CAMP 0015350 42410 180.00
10/6/2011 US BANK SUPPLIES-COMM SVCS 0015350 41200 379.93
10/6/2011 US BANK SUPPLIES-COMM SVCS 0015350 41200 538.46
10/6/2011 US BANK SUPPLIES-DBC 0015333 42210 139.85
10/6/2011 US BANK SUPPLIES-DBC 0015333 41200 4.86
10/6/2011 US BANK FUEL-COMM SVCS 0015310 42310 455.51
10/6/2011 US BANK SUPPLIES-GENERAL 0014090 41200 24.62
10/6/2011 US BANK LEAGUE CONF-COUNCIL 0014010 42330 525.00
10/6/2011 US BANK PRORSVCS-PARKS MSTR PLN 0015310 44000 9.99
10/6/2011 US BANK EMPLOYEE RECOG-H/R 0014060 42347 320.00
Page 19
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
10/6/2011 96222... US BANK MTG SUPPLIES-H/R 0014060 42325 34.98 $20,782.62...
10/6/2011 US BANK PROF.SVCS-DOC DESTRUCTION 0014090 44000 150.15
10/6/2011 US BANK MTG SUPPLIES-H/R 0014030 42325 74.45
10/6/2011 US BANK PUBLICATIONS-H/R 0014060 42115 75.00
10/6/2011 US BANK SUPPLIES-ROAD MAINT 0015554 41250 515.77
10/6/2011 US BANK FUEL-ROAD MAINT 0015554 42310 629.52
10/6/2011 US BANK MTGS-CMGR 0014030 42325 208.06
10/6/2011 US BANK LEAGUE CONF-CMGR 0014030 42330 2,934.47
10/6/2011 US BANK MTG SUPPLIES-GENERAL 0014090 42325 368.35
10/6/2011 US BANK SUPPLIES-GENERAL 0014090 41200 13.03
10/6/2011 US BANK MTG-COUNCIL 0014010 42325 10.00
10/6/2011 US BANK SUPPLIES-I.T. 0014070 41200 36.03
10/6/2011 US BANK FUEL-NGHBRHD IMP 0015230 42310 59.18
10/6/2011 US BANK FUEL-COMM SVCS 0015310 42310 335.00
10/6/2011 US BANK MAINT-COMM SVCS 0015340 42210 799.49
10/6/2011 US BANK EQ-CONCERT IN PARK 0015350 45305 129.19
10/6/2011 US BANK SUPPLIES-ROAD MAINT 0015554 41250 878.06
10/6/2011 US BANK FUEL-ROAD MAINT 0015554 42310 330.02
10/6/2011 US BANK FUEL-NGHBHD IMP 0015230 42310 184.05
10/6/2011 US BANK EQ MAINT-NGHBHD IMP 0015230 42200 52.70
10/6/2011 US BANK FUEL-POOL VEH 0014090 42310 359.40
10/6/2011 US BANK VEH MAINT-POOL VEH 0014090 42200 19.55
10/6/2011 US BANK SUPPLIES-WALL BRKING 0014090 42325 644.20
10/6/2011 US BANK SUPPLIES-P/INFO 0014095 41200 105.19
10/6/2011 US BANK ENGRAVING SVCS-P/INFO 0014090 42113 18.49
10/6/2011 US BANK 3CMACONF-P/INFO 0014095 42330 1,352.00
10/6/2011 US BANK SUPPLIES-DAY CAMP 0015350 41200 7.98
10/6/2011 1 96223 IWILLIAM VALDEZ IFACILITY REFUND-REAGAN 1 001 1 23002 1 50.00 $50.00
10/6/2011 1 96224 JMARJOLIJN VALENCIA IFACILITY REFUND-PANTERA 1 001 1 36625 1 468.321 $468.32
10/6/2011 96225 VALLEY CREST LANDSCAPE MAINT INC LANDSCAPE MAINT-DBC SEPT 0015333 1 45300 1 5,645.47 $31,551.57
10/6/2011 IVALLEY CREST LANDSCAPE MAINT INC LANDSCAPE MAINT-PARKS 0015340 45300 24,604.11
Page 20
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
10/6/2011 96225... VALLEY CREST LANDSCAPE MAINT INC ADDL MAINT-PANTERA PK 0015340 42210 529.78 $31,551.57...
10/6/2011 VALLEY CREST LANDSCAPE MAINT INC ADDL MAINT-REAGAN PK 0015340 42210 473.56
10/6/2011 VALLEY CREST LANDSCAPE MAINT INC ADDL MAINT-PANTERA PK 0015340 42210 298.65
10/6/2011 96226 VERIZON CALIFORNIA PH.SVCS-DBC 0015333 •42125 112.65 $589.09
10/6/2011 VERIZON CALIFORNIA PH.SVCS-DBC 0015333 42125 268.41
10/6/2011 VERIZON CALIFORNIA PH.SVCS-DATA MODEM 0014090 42125 36.90
10/6/2011 VERIZON CALIFORNIA PH.SVCS-GENERAL 0014090 42125 92.57
10/6/2011 VERIZON CALIFORNIA PH.SVCS-DIAL IN MODEM 0014090 42125 78.56
10/6/2011 96227 VERIZON WIRELESS CELL CHRGS-CMGR 0014030 42125 104.09 $306.57
10/6/2011 VERIZON WIRELESS CELL CHRGS-EOC 0014440 42125 57.67
10/6/2011 VERIZON WIRELESS CELL CHRGS-EOC 0014090 42125 4.89
10/6/2011 VERIZON WIRELESS CELL CHRGS-EOC 0014070 42125 4.89
10/6/2011 VERIZON WIRELESS CELL CHRGS-DESFORGES 0014070 42125 45.01
10/6/2011 VERIZON WIRELESS CELL CHRGS-AZIZ 0014070 42125 45.01
10/6/2011 VERIZON WIRELESS CELL CRHGS-MODEM 0014411 42125 45.01
10/6/2011 1 96228 IVISION SERVICE PLAN OCT 11-VISION PREMIUMS 001 1 21107 1 1,241.68 $1,241.68
10/6/2011 96229 WALNUT VALLEY WATER DISTRICT WATER SVCS-DIST 38 1385538 42126 19,244.06- $60,298.97
10/6/2011 WALNUT VALLEY WATER DISTRICT WATER SVCS-DIST 39 1395539 42126 9,493.22
10/6/2011 WALNUT VALLEY WATER DISTRICT WATER SVCS-DIST 41 1415541 42126 6,114.85
10/6/2011 WALNUT VALLEY WATER DISTRICT WATER SVCS-PARKS 0015340 42126 25,209.23
10/6/2011 WALNUT VALLEY WATER DISTRICT WATER SVCS-DBC 0015333 42126 237.61
10/6/2011 96230 WARREN SIECKE ENG SVCS-TRFFC STUDY 0015510 44000 445.50 $6,098.00
10/6/2011 WARREN SIECKE ENG SVCS-NEW C/HALL 1135553 46412 1,615.00
10/6/2011 WARREN SIECKE ENG SVCS-G/SPRINGS 0015510 44000 396.00
10/6/2011 WARREN SIECKE ENG SVCS-AUG 2011 1135553 46412 2,440.00
10/6/2011 WARREN SIECKE ENG SVCS-NEW C/HALL 1135553 46412 1,201.50
1 1
10/6/2011 96231 WAXIE SANITARY SUPPLY SUPPLIES-DBC 0015333 41200 1,360.76 $2,318.74
10/6/2011 WAXIE SANITARY SUPPLY SUPPLIES-DBC 0015333 41200 100.44
10/6/2011 WAXIE SANITARY SUPPLY SUPPLIES-DBC 0015333 41200 2.86
Page 21
City of Diamond Bar - Check Register 09/29/2011 thru 10/12/2011
Check Date Check Number Vendor Name Transaction Description Fund/Dept Acct# Amount Total CheckAmount
1016/2011 96231... WAXIE SANITARY SUPPLY SUPPLIES-HERITAGE 0015340 41200 474.13 $2,318.74_.
10/6/2011 WAXIE SANITARY SUPPLY SUPPLIES-DBC 0015333 41200 380.55
10/6/2011 96232 WEST COASTARBORISTS INC TREE WATERING-JUL 11 0015558 45510 345.00 $25,433.20
10/6/2011 WEST COASTARBORISTS INC TREE WATERING-AUG 11 0015558 45510 690.00
10/6/2011 WEST COASTARBORISTS INC TREE MAINT SVCS-JUL 11 0015558 45509 3,061.20
10/6/2011 WEST COASTARBORISTS INC TREE MAI NT SVCS-AUG 11 0015558 45509 6,165.60
10/6/2011 WEST COASTARBORISTS INC TREE MAI NT SVCS-AUG 11 0015558 45509 15,171.40
10/6/2011 1 96233 WEST COAST MEDIA AD-FALL FUN FESTIVAL OCT 1 0014095 1 42115 1 700.001 $700.00
10/6/2011 96234 WILLDAN GEOTECHNICAL PROF.SVCS-EN 11-733 001 23012 370.00 $2,960.00
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-733 001 23012 66.60
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-733 001 34650 -66.60
10/6/2011 WILLDAN GEOTECHNICAL PROF.SVCS-EN 11-740 001 23012 555.00
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-740 001 23012 99.90
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-740 001 34650 -99.90
10/6/2011 WILLDAN GEOTECHNICAL PROF.SVCS-EN 11-743 001 23012 555.00
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-743 001 23012 99.90
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-743 001 34650 -99.90
10/6/2011 WILLDAN GEOTECHNICAL PROF.SVCS-EN 11-730 001 23012 740.00
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-730 001 23012 133.20
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-730 001 34650 -133.20
10/6/2011 WILLDAN GEOTECHNICAL PROF.SVCS-EN 11-747 001 23012 740.00
1016/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-747 001 23012 133.20
10/6/2011 WILLDAN GEOTECHNICAL ADMIN FEE-EN 11-747 001 34650 -133.20
10/6/2011 1 96235 MARICRES WONG FACILITY REFUND-DBC 001 23002 1 500.00 $500.00
10/6/2011 1 96236 QIN YU RECREATION REFUND 001 34780 5.00 $5.00
9/29/2011 1 OCT2011 UNION BANK OF CALIFORNIA,NA LEASE PAYMENT-DBC OCT 11 0014090 1 42140 1 29,668.85 $29,668.85
$1,558,159.17
Page 22
i
Agenda # 6.4
Meeting Date: October 18, 2011
IT
Him n a
CITY COUNCIL -MRPOiAGENDA REPORT
t���
r9S9
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City MtAZtCONSTRUCTION
TITLE: AWARD OF DESIGN ADMINISTRATION
SERVICES CONTRACT FOR THE 2011-2012 COMMUNITY
DEVELOPMENT BLOCK GRANT (CDBG) CURB RAMP INSTALLATION
PROJECT TO INFRASTRUCTURE ENGINEERS IN THE AMOUNT OF
$30,830, AND AUTHORIZE A CONTINGENCY AMOUNT OF $3,000.00
FOR CHANGE ORDERS TO BE APPROVED BY THE CITY MANAGER,
FOR A TOTAL AUTHORIZATION AMOUNT OF $33,830.00.
RECOMMENDATION:
Award.
FINANCIAL IMPACT:
Fiscal Year 2011-2012 CIP Budget includes an allocation of $229,572 of Community Development
Block Grant (CDBG) funds for the Curb Ramp Installation Project within the vicinity of Maple Hill
Elementary School and Chaparral Middle School.
BACKGROUND:
As shown in the attached Exhibit "A", a total of seventy (70) curb ramp locations are anticipated to
be designed and constructed within the vicinity of Maple Hill Elementary School and Chaparral
Middle School. The majority of the 70 ramp locations are existing curb ramps previously installed
but will have to be removed and replaced to meet current ADA guidelines while the remainder will
be new curb ramp installations where currently no ramps exist.
DISCUSSION:
On August 10, 2011, the Public Works Department requested proposals for professional
engineering services. The request included preparation of plans, specifications and estimates,
construction administration/inspection, and construction staking services.
A total of four (4) proposals were received on September 1, 2011. The table below shows the
proposed fees of each consulting firm.
1
Consultant Total
Infrastructure Engineers $30,830.00*
Onward Engineering $44,735.00
DMS Consultants, Inc. $47,820.00**
Harris & Associates $78,200.00
*The original proposal submitted by Infrastructure Engineers did not include the cost to Preserve Survey Monumentation.
This was not previously identified in the RFP, however due to the fact that there are some monuments that will need to
be preserved staff requested that the cost for this task be added to their proposal. The cost shown in the table above
includes the added cost of the new task.
**The fee by DMS Consultants, Inc. included the task of Monumentation Perservation.
The four proposals were reviewed and evaluated by the selection committee. Staff concluded that
Infrastructure Engineers was the qualified consultant for the FY 2011-2012 CDBG Curb Ramp
Project because of their design approach, project team, public relations views, knowledge of local
conditions, as well as knowledge with CDBG Requirements.
Infrastructure Engineers scope of work includes:
• Research of City, County and utility company records
• Locate all existing utilities
• Prepare plans, specifications and cost estimates for CDBG project
• Survey and construction staking
• Construction Administration Services
• Provide all inspection services and daily reports
• Address Complaints and Concerns received from Neighborhood and Citizens
• Prepare "Punch List"
• Prepare final report
The tentative schedule of this project is as follows:
Design, Specifications and Estimate Complete December 2011
Construction Contract Award January 2012
Construction Completion March 2012
PREPARED BY: DATE PREPARED:
Kimberly M. Young, Associate Engineer October 4, 2011
REVIEWED
Davi . Liu, l5irectfor of Public Works
Attachments: Exhibit"A"
Consulting Services Agreement
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CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of October 18, 2011 by and between the City of
Diamond Bar, a municipal corporation ("City") and Infrastructure Engineers,
("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10, 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1. Consultant's Services.
A. Scope of Services. The nature and scope of the specific services
to be performed by Consultant are as described in Exhibit "B" the Consultant's
Proposal, dated September 1, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of
the specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect October 18, 2011,
and shall continue unless earlier terminated pursuant to the provisions herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule
set.forth in Exhibit "C". Payment will be made only after submission of proper invoices
in the form specified by City. Total payment to Consultant pursuant to this Agreement
shall not exceed Thirty Thousand, Eight Hundred Thirty Dollars ($30,830.00).
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Sid Mousavi, President and CEO
City of Diamond Bar Infrastructure Engineers
21825 Copley Drive 1815 E. Heim Ave., Suite 100
Diamond Bar, CA 91765-4178 Orange, CA 92865
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of
Consultant's employees, except as set forth in this Agreement. Consultant shall not, at
any time, or in any manner, represent that it or any of its agents or employees are in
any manner agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any
and all taxes, assessments, penalties, and interest asserted against City by reason of
the independent contractor relationship created by this Agreement. In the event that
City is audited by any Federal or State agency regarding the independent contractor
status of Consultant and the audit in any way fails to sustain the validity of a wholly
independent contractor relationship between City and Consultant, then Consultant
agrees to reimburse City for all costs, including accounting and attorney's fees, arising
out of such audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable workers compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City
from Consultant as a result of Consultant's failure. to promptly pay to' City any
reimbursement or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply
with the requirements in Section 6. Additionally, the City shall have the right to offset
against the amount of any fees due to Consultant under this Agreement for any amount
or penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation) of every nature arising out of or in connection with Consultant 's negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged
or actual passive negligence of City which may have contributed to the claims,
damages, costs or liability). Should City in its sole discretion find Consultant's legal
counsel unacceptable, then Consultant shall reimburse the City its costs of defense,
including without limitation reasonable attorneys fees, expert fees and all other costs
and fees of litigation. The Consultant shall promptly pay any final judgment rendered
against the City (and its officers, officials, employees and volunteers) with respect to
claims determined by a trier of fact to have been the result of the Consultant's
negligence, recklessness or willful misconduct. It is expressly understood and agreed
that the foregoing provisions are intended to be as broad and inclusive as is permitted
by the law of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of, broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000-00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover
damages that may be the result of-errors, omissions, or negligent acts of Consultant, in
an amount of not less than $1,000,000 per occurrence and at least $1,000,000
aggregate; and (5) worker's compensation insurance with a minimum limit of
$500,000.00 or the amount required by law, whichever is greater. City, its officers,
employees, attorneys, and volunteers shall be named as additional insured on the
policy(ies) as to comprehensive general liability, property damage, and automotive
liability. The policy(ies) as to comprehensive general liability, property damage, and
automobile liability shall provide that they are primary, and that any insurance
maintained by the City shall be excess insurance only.
A. All insurance policies shall provide that the insurance coverage
shall not be non-renewed, canceled, reduced, or otherwise modified (except through the
addition of additional insured to the policy) by the insurance carrier without the
insurance carrier giving City thirty (30) day's prior written notice thereof. Consultant
agrees that it will not cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant
pursuant to the terms of this Agreement; shall be issued by an insurance company
which is authorized to do business in the State of California or which is approved in
writing by the City; and shall be placed with a current A.M. Best's rating of no less that A
VII.
C. Consultant shall submit to City (1) insurance certificates indicating
3
compliance with the minimum worker's compensation insurance requirements above,
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this
Agreement shall allow City, as additional insured, to satisfy the self-insured retention
("SIR") and/or deductible of the policy in lieu of the Owner (as the named insured)
should Owner fail to pay the SIR or deductible requirements. The amount of the SIR or
deductible shall be subject to the approval of the City Attorney and the Finance Director.
Owner understands and agrees that satisfaction of this requirement is an express
condition precedent to the effectiveness of this Agreement. Failure by Owner as primary
insured to pay its SIR or deductible constitutes a material breach of this Agreement.
Should City pay the SIR or deductible on Owner's behalf upon the Owner's failure or
refusal to do so in order to secure defense and indemnification as an additional insured
under the policy, City may include such amounts as damages in any action against
Owner for breach of this Agreement in addition to any other damages incurred by City
due,to the breach.
10. Confidentiality. Consultant in the course of its duties may have access
to confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may
desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement,'or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
4
would conflict in any manner with the performance of its services pursuant to this
Agreement.
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant
shall not terminate this Agreement during the provision of services on a particular
project. The effective date of termination shall be upon the date specified in the notice
of termination, or, in the event no date is specified, upon the fifteenth (15th) day
following delivery of the notice. In the event of such termination, City agrees.to pay
Consultant for services satisfactorily rendered prior to the effective date of termination.
Immediately upon receiving written notice of termination, Consultant shall discontinue
performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard
to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical
or mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
5
D. Executive Order 11246 requires that during the performance of this
Agreement, Consultant agrees not to discriminate against any employee or applicant for
employment because of race, religion, sex, color or national origin. Consultant will take
affirmative action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, religion, sex, color or national
origin. Such action shall include, but not be limited to the following: employment,
upgrading, demotion, or transfer, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. Consultant agrees to post in
conspicuous places, available to employees and applicants for employment, notices to
be provided by the Consultant setting forth the provisions of this nondiscrimination
clause.
E. Section 3 of the Housing and Community Development Act of 1968,
as amended, 12 U.S.C. 1701 et. seq., requires that, to the greatest extent feasible,
opportunities for training and employment be given to lower income residents of the
project area and contracts for work in connection with the project be awarded to
business concerns which are located in or owned in substantial part by persons residing
in the area of the project.
F. Title VI of the Civil Rights Act of 1964 provides that no person shall,
on the ground of race, color or national origin, be excluded from participation in, be
denied the benefits of, or be subject to discrimination under any program or activity
receiving federal financial assistance.
G. Section 109, Title I of the Housing and Community Development
Act,of 1974 provides that no person shall, on the grounds of race, color, national origin,
or sex be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program of activity funded in whole or in part with funds made
available under this title.
H. Any prohibition against discrimination on the basis of age under the
Age Discrimination Act of 1975, or with respect to an otherwise qualified handicapped
individual, as provided in Section 504 of the Rehabilitation Act of 1973, shall also apply.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without
the prior written consent of City, and any attempt by Consultant to so assign this
Agreement or any rights, duties, or obligations arising hereunder shall be void and of no
effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall
6
the making by City of any payment to Consultant constitute or be construed as a waiver
by City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as
agreed upon by the parties and the costs and expenses thereof shall be borne equally
by the parties hereto. In the event the parties are unable to mutually agree upon the
mediator to be selected hereunder, the City Council shall select such a neutral, third
party mediation service and the City Council's decision shall be final. The parties agree
to utilize their good faith efforts to resolve any such dispute or controversy so submitted
to mediation. It is specifically understood and agreed by the parties hereto that referral
of any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this
Agreement shall be deemed received on (a) the day of delivery if delivered by hand
during regular business hours or by facsimile before or during regular business hours;
or (b) on the third business day following deposit in the United States mail, postage
prepaid, to the addresses heretofore set forth in the Agreement, or to such other
addresses as the parties may, from time to time, designate in writing pursuant to the
provisions of this section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
24. County Lobbying Certification.
The Consultant certifies that:
(A) It is understood that each person/entity/firm who applies for a
Community Development Commission contract, and as part of that process, shall certify
that they are familiar with the requirements of the Los Angeles County Code Chapter
2.160, (Los Angeles County Ordinance 9,0031) and;
7
(B) . That all persons/entity/firm who seeks a contract with the
Community Development Commission shall be disqualified therefrom and denied that
contract and, shall be liable in civil action, if any lobbyist, lobbying firm, lobbyist
employer or any other person or entity acting on behalf of the above named firm fails to
comply with the provisions of the County Code.
25. Contractor's Warranty of Compliance with County's Defaulted
Property Tax Reduction Program:
A. The Consultant. acknowledges that the County has established a
goal of ensuring that all individuals and businesses that benefit financially from the
County through contract are current in paying their personal and real property tax
obligations (secured and unsecured roll) in order to mitigate the economic burden
otherwise imposed upon the County and its taxpayers. Unless the Consultant qualifies
for an exemption or exclusion, the Contractor warrants and certifies that to the best of
its knowledge it is now in compliance, and during the term of this Contract will maintain
compliance, with the County's Defaulted Tax Program, found at Los Angeles County
Ordinance No. 2009-0026 and codified at Los Angeles County Code, Chapter 2.206.
B. Failure of the Consultant to maintain compliance with the
requirements set forth in the "County's Defaulted Property Tax Reduction Program "
shall constitute default under this Contract. Without limiting the rights and remedies
available to the City under any other provision of this Contract, failure of the Consultant
to cure such default within 10 days of notice shall be grounds upon which the City may
suspend or terminate this contract pursuant to the County's Defaulted Property Tax
Reduction Program found at Los Angeles County Ordinance No. 2009-0026 and
codified at Los Angeles County Code, Chapter 2.206.
26. Lobbying Certification.
The Consultant certifies that:
(A) No Federal appropriated funds have been paid or will be paid, by or
on behalf of the Consultant, to any person for influencing or attempting to influence an
officer or employee of any agency, a Member of Congress, and officer or employee of
Congress, or an employee of any Member of Congress in connection with the awarding
of any Federal contract, the making of any cooperative agreement, and the extension,
continuation renewal, amendment, or modification of any Federal contract, grant, loan
or cooperative agreement.
(B) If any funds other than Federal appropriated funds have been paid
or will be paid to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress in connection with this Federal
contract, grant, loan, or cooperative agreement, the Consultant shall complete and
submit Standard Form-LLL, "Disclosures Form to Report Lobbying", in accordance with
its instructions.
8
(C) The Consultant shall require that the language of this certification
be included in all subcontracts and that all subcontracts shall certify and disclose
accordingly.
27. Records and Audits. The Consultant shall maintain accounts and
records, including personnel, property and financial records, adequate to identify and
account for all costs pertaining to this Agreement and such other records as may be
deemed necessary by the City to assure proper accounting for all projects, both federal
and non-federal shares. These records will be made available for audit purposes to the
City or any authorized representative, and will be retained five years after final
payments are issued and other pending matters are closed. (24 CFR Part 84, Sec.
84.53)
28. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated
agreement between Consultant and City. This Agreement supersedes all prior oral or
written negotiations, representations or agreements. This Agreement may not be
amended, nor any,provision or breach hereof waived, except in a writing signed by the
parties which expressly refers to this Agreement. Amendments on behalf of the City will
only be valid if signed by the City Manager or the Mayor and attested by the City Clerk.
29. Exhibits. All exhibits referred to in this Agreement are incorporated
herein by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
1VCityV1
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
9
City of Namond Bar
I:ITS
\ms`s
21825 Copley Drive • Diamond Bar,CA 91765-4178
(909)839-7000 • Fax(909)861-3117
4n `" www.diamondbarca.gov
ryg9, g
August 10, 2011
SUBJECT: Request for Proposals for the Design, Construction
Administration/Inspection, Surveying and Staking
Services for the 2011-2012 Community Development
Block Grant (CDBG) Curb Ramp Installation Project
To Civil Engineering Firms:
1. INTRODUCTION
The City of Diamond Bar Public Works Department is seeking to retain the
services of a professional civil engineering consultant firm for the design,
construction administration/inspection, survey and staking .services of the
2011-2012 Community Development Block .Grant (CDBG) Curb Ramp
Installation Project. The curb ramp improvements required will upgrade
existing curb ramps and add curb ramps in existing right-of-way to provide
continuity for pedestrian access and Americans with Disabilities Act (ADA)
Steve Tye accessibility.
Mayor
Proposed. curb ramp locations are located within the neighborhoods in the
Ling-Ling Chang vicinity of Maple Hill Elementary School and Chaparral Middle School,
Mayor Pro Tem Please see Exhibit A attached.
Ron Everett
Council Member The project is federally funded through 2011-2012 Community
Development Block Grant (CDBG) Funds. Please find attached
Carol Herrera requirements and Consulting Services Agreement that must be met and
Council Member included in the proposal package. (Exhibit "B"). The total budget for the
Jack Tanaka project is $229,572 which includes, design, construction and construction
Council Member management:services. .
.Il: SCOPE OF WORK .
The City of Diamond Bar requires the services of a professional civil
engineering consultant firm to provide the technical design; construction
administration/inspection, surveying and staking services for the
aforementioned project areas under Section I.
j Receded oaner -
Page 2
RFP -Design, Construction Administration/Inspection, Surveying & Staking Services
August 10, 2011
The professional civil engineering consultant firm shall prepare plans,
specifications and estimates (PS&E) for the project. The proposal shall
identify tasks to be included as part of the project. At a minimum, these
tasks shall include:
1) Conduct utility search within the project limits. Review the location of
existing utilities, surface and subsurface structures and proposed
improvements. If the proposed improvements interfere ,with existing
utilities, necessary arrangements shall be . made. with
and
coordinate with all utility agencies and verify any possible
discrepancies.
2) Prepare technical plans, specifications and estimates (PS&E) and bid
schedule. Technical plans shall have typical plan views and sections to
fit 8 1/2 inch by 11 inch sheets or 11 inch by 17 inch sheets folded to fit
the size of 8 1/2 inch by 11 inch and shall be in the "Appendix" section
of the .specifications. Specifications shall be submitted in electronic
format in Microsoft® Word format. Cost estimates shall include each
bid item description, quantity, unit cost and total cost and shall be
submitted in tabular form in Microsoft® Excel format.
3) Final Plans and specifications will be required to be submitted in
j electronic format to be posted on the City's website.
The professional civil engineering consultant firm shall also perform
inspection, surveying and staking for the project. The proposal shall
identify tasks to be included as.part of the project. At a minimum, these
tasks shall include:
1. Observe construction for the duration of the project. Number of hours
i anticipated for adequate observation shall be identified.
2. Prepare and submit daily logs and weekly reports of construction
activities.
I .
3. Conduct Labor Compliance Employee Interviews per CDBG
Requirements.
Page 3
RFP — Design, Construction Administration/Inspection, Surveying and Staking Services
August 10, 2011
4. Provide construction surveying and staking services as necessary to
assist the contractor in construction of the proposed improvements per
the plans and specifications.
o Identify and mark the center line, dimension of the upstream
and downstream X of the new ramps. Ensure that curb ramps
are constructed with the correct grade and gutters have
adequate elevations to allow water to flow.
Identify, quantify, and recommend to the City in a timely
manner the removal and, replacement of damaged sidewalk,
curb and gutter in the immediate vicinity of the curb ramps.
5.. Respond and address contractor's request for information/questions
regarding design and construction issues.
6. Review and monitor contractor's progress and schedule.
7. Conduct final job walk and prepare the punch list.
8. Recommend final acceptance of project.
9. Maintain project construction records and prepare record drawings to
be given to the City at the end of project.
10.Monitor, evaluate, and approve change order requests.
III. PROPOSAL CONTENTS
The consultant's proposal shall contain the following information and shall
be organized as follows:
1 . Cover letter summarizing the proposal.
2. Statement ofqualifications including a list of design, inspection,
surveying and staking, projects that have been successfully
implemented within the last three (3) years with at least two (2) CDBG
Projects included.
3. Brief discussion of understanding of the City's needs.
i
Page 4
RFP— Design, Construction Administration/Inspection, Surveying and Staking Services
August 10, 2011
4. Detailed work plan which itemizes and describes each task to be
completed.
5. Project staffing and organization.
6. Resumes of project staff.
7. Minimum three (3) references with contact names, addresses and
telephone numbers.
8. A written statement of your firm's willingness to accept the terms of the
Consulting Services Agreement (Exhibit "B")
9. Additional information regarding the firm, sample reports, outputs or
pertinent insight about the design, inspection, surveying and staking
services may be included.
The consultant's fee proposal shall contain the following information:
1. Not-to-exceed (NTE) figure and hourly billing rates for typical staff
classifications and cost breakdown per task. All assumptions upon
which the costs are based shall be stated. Fee proposal shall be
submitted in a separate sealed envelope.
IV. SELECTION OF QUALIFIED CONSULTANT
The City will select the Consultant for this project based on a combination
of factors such as qualifications, past experience with similar projects,.
approach to this particular service and references. There may be
interviews of some or all consultants who submit proposals. The selected
firm shall enter into the Consulting Services Agreement with the City of
Diamond Bar, attached hereto as Exhibit "B." A statement MUST be
made in the proposal that all terms and conditions are acceptable.
Proof of Insurance requirements addressed in the professional services
agreement of this Request for Proposal shall be submitted by the selected
Consultant upon execution of the contract for submittal to the City Council.
The selected Consultant must submit.a, "Statement Certifying Insurance
Coverage" certifying that the required insurance coverage will be obtained
by the Consultant, and that the Consultant understands said coverage is
prerequisite for entering into an agreement with, the City. The Consultant
Page 5
RFP — Design, Construction Administration/Inspection, Surveying and Staking Services
August 10, 2011
is required to confirm with its insurance carrier that it can meet all the
requirements for insurance. Failure to meet with insurance regulations as
set forth shall result in the Consultant's disqualification.
The City has the right to reject all proposals at any point in the selection
process with no financial obligation to the consultants.
V. PROPOSAL
Consultants interested in responding to this Request for Proposal shall
submit a proposal by 3:30. p.m. on September 1, 2011. The proposal
shall be organized as described in the "Proposal Contents."
Three (3) sets of proposals shall be presented in one (1) sealed envelope,
and one (1) fee proposal shall be presented in one (1) sealed envelope.
Envelopes bearing the name, address and telephone number of individual or
entity submitting the proposal and shall be addressed to:
Ms. Kimberly Young, P.E.
Associate Engineer
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
Envelope for proposals shall be clearly marked with the notation: "DO NOT
OPEN- PROPOSAL."
Envelope for fee proposal shall be clearly marked with the notation: "DO
NOT OPEN- FEE PROPOSAL."
For any questions regarding this Request for Proposal, please contact Ms.
Kimberly Young, Associate Engineer, at (909) 839-7044.
Sincere)
Davi G. Liu, P.E.
Director of Public Works/City Engineer
Attachments .
Exhibits"A,,
Exhibit"B"- Consulting Services Agreement
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INFRASTRUCTURE
E N G I No E E R% S&
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o-1
City of Diamond
u.
Design, ConstructionAdministration/ k
Inspection, Surveying and Staking
Services for the 2011 -201
4
Community Development Block Grant
Curb a Installation Project
4 '
September 1 , 2011
1815 E.Heim Avenue,Suite 100 g
Orange, CA 92865
Phone:714.940.0100 Fax:714.940.0700
www.infeng.coMwh !•7
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G 7 R
�r INFRASTRUCTURE
ENGINEERS
Work Plan
The Design, Construction Administration/Inspection, Surveying and Staking Services for the
2011/2012 Community Development Block Grant (CDBG) Curb Ramp Installation Project in the
City of Diamond Bar will be accomplished by completing the following tasks:
Task 1: Project Development Meetings
Kick-off Meeting:
Upon issuance of the Notice-to-Proceed for the Project, Infrastructure Engineers team members
will arrange for a coordination meeting with City Staff to review and confirm the background,
detailed project scope, design objectives, and other pertinent project details. During this kick-
off meeting, design criteria and parameters for each of the various elements will be discussed.
Meeting minutes identifying the key elements of the program will be prepared and distributed.
We will outline our approach and methodologies as related to construction
administration/inspection, surveying and staking services. Sample project management tools
(engineer and inspector reports, quality control spreadsheets, RFI forms and logs, contract
change order logs, etc.) will be shared with the City team.
Design Review Meeting:
After compiling accurate field data and preparation of preliminary estimates of items of work,
Infrastructure Engineers will arrange for a meeting with City team members to review the results,
identify work needed on private property (if any), and arrange for necessary coordination. In
cases where right-of-way has previously been secured through the process of dedication,
easements (or similar mechanisms), Infrastructure Engineers will verify the documentation to
ascertain that the proposed improvements, as part of this project, will be constructed with
respect to the right-of-way.
Project Progress Meetings and Coordination:
In addition to the meetings identified in other Tasks, coordination, progress and update
meetings will be arranged between the design team, City staff, Contractor, and Utility
Companies. Meetings are generally anticipated after significant submittal milestones and when
required to address specific design and coordination issues. In addition to meetings, City staff
will be continuously informed of work status and issues through email, phone and facsimile
communications.
Task 2: Project Records Research and Collection
The Infrastructure Engineers design team will collect all project related records such as
improvement plans, "as-built" drawings, utility plans, inspection reports, citizen complaint logs,
studies, and other pertinent information within the projects limits. The design team will review
these existing records and incorporate them into the design program as appropriate.
j
Task 3: Field Review
The design team will complete a comprehensive field investigation within the specified project
limits and identify the estimated seventy (70) locations where the existing non-compliant curb
ramps need to be removed and replaced or where new curb ramps need to be constructed.
City of Diamond Bar: 2011-2012 CDBG Curb Ramp Installation-9/1/1 1 Page 3
i
® INFRASTRUCTURE
ENGINEERS
During the field investigation, accurate data regarding conditions of adjacent sidewalk, curb
and gutter and pavement improvements, adjacent private property improvements
(landscaping, hardscaping, irrigation systems), and existing features such as valve boxes and
pull boxes in the area of proposed work will be collected. The areas of removal of existing
sidewalk, curb and gutter and pavement and the existing curb ramps will be identified and
recorded in such a way as to outline.the optimum limits of removal with respect to existing joint
lines and score lines and with respect to the project's overall construction budget. Where it is
needed for design or construction purposes, the surveying services will be provided to assure the
proper vertical and horizontal control (elevation and layout) be used during the course of the
project.
Task 4: Right-of-Way Engineering
To ensure that all curb ramps are built within the public right-of-way, Infrastructure Engineers will
research and collect all current right-of-way documents to check versus needed area for new
ramp construction. In cases (if any) where the proposed improvements will encroach on private
property, exact limits of apparent encroachment will be documented. Staff will immediately
research existing documents to determine the right-of-way. As part of our field investigation
records, we will produce digital images of each location with particular attention to capturing
the condition of improvements in adjacent private properties. The results of the field
investigation and estimated quantities of work will be tabulated and will be presented to the
City.
In those cases where right-of-way needs to be secured, if directed by the City, Infrastructure
Engineers can assist with preparation of necessary documentation, such as legal descriptions as
an optional task and based on our hourly fees.
Task 5: Utility Search, Notification and Coordination
Infrastructure Engineers will conduct fieldwork to verify the locations of surface utility features
within the project limits. During the field investigation, Infrastructure Engineers will document the
locations of other special features. In conjunction with information gathered, Infrastructure
Engineers will notify affected utility companies of the impending project. Surface features (valve
boxes, pull boxes, etc.) requiring adjustment or relocation will be identified and properly
coordinated with the corresponding utility company. If the proposed improvements interfere
with existing utilities and if the utility company has prior rights, Infrastructure Engineers will include
the relocation as part of the design, if necessary. Infrastructure Engineers will provide the City
with copies of all correspondence with the utility companies compiled in a book report at the
submittal of 90%design, to ensure due diligence and follow-through with the utility companies.
li After obtaining concurrence on the exact scope of work, Infrastructure Engineers will
immediately start the process of preparing plans and specifications.
i
Task 6: Design Documents/Plans, Specifications and Cost Estimate (PS&E)
90% Plans Specifications &Cost Estimate (PS&E):
Infrastructure Engineers will prepare technical plans and specifications utilizing the City of
Diamond Bar "Boiler Plate". Technical plans will contain typical plan views and sections on 8.5
1 inch x 11 inch sheets to fit the bid documents package and will be placed in the "Appendix"
I
I
I
City of Diamond Bar: 2011-2012 CDBG Curb Ramp Installation-9/1/11 Page R
INFRASTRUCTURE
ENGINEERS
section of the documents. We will utilize the City's adopted standard drawings. Plans will be
produced in such a fashion to clearly identify each of the 70 locations where work will take
place. In cases where detailed plans need to be prepared, such as construction of curb behind
the ramp and sidewalk area, detailed drawings will be provided.
The bid schedule will become a part and parcel of the specification. In addition, a detailed
cost estimate in a tabular format (using MS Excel) and including bid items, estimated quantities,
unit prices, total price of each item of work, and the grand total for the entire will be provided to
the City.
Once the design documents are 90% complete, they will be submitted to the City for review
and approval. The City's comments and requested changes, if any, will be reviewed and will
be incorporated into the final design documents.
Final PS&E
Upon review and approval of the 90% design submittal by the City, the final (100%) plans,
specifications, and engineer's estimate will be prepared and submitted to the City. All City
requested revisions to the previously submitted construction plans will be incorporated in the
final 100% package. The professionally signed and sealed bid documents, along with an
electronic project file with all of the supporting documents, will be delivered to the City for
bidding purposes. Infrastructure Engineers will provide the City with two (2) sets of hard copies
of the bid document, along with an electronic copy utilizing MS Word on a Compact Disc.
Task 7: Assistance During Bidding and Award Process
Infrastructure Engineers will participate in the pre-bid meeting with the prospective contractors.
Infrastructure Engineers will also provide technical assistance to the City staff, clarifications to the
prospective bidders on behalf of the City, and develop, prepare, and submit to the City (for the
distribution to the prospective bidders) the necessary addendum documents (plans and/or
specifications) during the bidding period. Infrastructure Engineers will assist the City in evaluation
of the submitted bids and ascertain responsiveness of the apparent lowest bidder.
Task 8: Pre-Construction Meeting
After execution of the contract between the City and the contractor, Infrastructure Engineers
will arrange and conduct the pre-construction meeting. All stakeholders, including the utility
companies, School District, Police Department, Fire Department, municipal service providers,
such as trash pick-up and street sweeping services, will be invited to participate in the meeting.
Prior to the meeting, Infrastructure Engineers will prepare a comprehensive meeting agenda for
City's review. A meeting participation log will be prepared and circulated to all participants.
Compliance with requirements as related to the CDBG funding (wage decision, Section 3, labor
compliance, etc.) will be explained and emphasized during the interview process. Project
timeline, payment schedule, measurement of quantities of work on a daily basis, compliance
with NPDES requirements and other pertinent information will be reviewed. Minutes of the
meeting will be prepared and distributed to all parties.
City of Diamond Bar: 2011-22012 CDBG Curb Ramp Installation-9/1/11 Page 10
®.4 INFRASTRUCTURE
ENGINEERS
Task 9: Surveying and Construction Staking
Necessary surveying and construction staking will be arranged to ensure the contractor will be
able to perform his work without any delays and ensure that the curb ramps will be constructed
per design standards and details.
Infrastructure Engineers' Project Inspector will verify the scope of work and exact limits of
removals with the Contractor's foreman. Limits of removal and joint lines will be marked and
digital images of each location will be recorded.
Task 10: Construction Administration, Inspection
We will provide comprehensive construction administration and observations during the
construction phase of the project. This shall include, but not be limited to the following tasks:
Review of Submittals.
Infrastructure Engineers' Construction Manager will review the contractor's submitted baseline
construction schedule to ascertain compliance with bid documents.
Notices:
At least one week prior to start of work, the Project Notification Notices (as approved by the
City) will be circulated in the affected neighborhoods. In case of no parking requirements,
appropriate notices will be posted at least forty-eight (48) hours in advance of work.
Inspection:
Infrastructure Engineers' inspector will observe the work by the contractor on a daily basis to
ascertain compliance with project's plans and specifications, compliance with ,City's
requirements and ordinances (hours of work, noise ordinance, etc.) and general performance
of the contractor (continuous cleanup of construction site, compliance with NPDES
requirements). The Project Inspector will also closely monitor the contractor's concrete finishing
operations to ensure a quality end product. The Project Inspector will prepare a "daily
inspection report which clearly identifies the daily activities, work accomplished, number of
employees and equipment on the job and issues and concerns. Material delivery tickets will be
verified and attached to the inspection reports. It is estimated that the project will require 18
days of construction inspection.
Construction Management:
The Construction Manager will prepare weekly "project progress reports", which will be
forwarded to the City in an electronic format. The Construction Manager will also prepare
"weekly statement of working days",which will be sent to the Contractor.
The Construction Manager will continuously manage the construction phase through:
■ Monitoring Contractor's performance against the submitted schedule and will cause
correction by the Contractor in case of slippage.
■ Updating cost reports and construction invoicing forecasts.
Monitoring project's budget.
■ Coordinating CDBG labor:compliance with the CDC.
j Reviewing and verifying Contractor's progress payment requests.
City of Diamond Bar: 21011-20121 CDBG Curly Rarnp Installation-Q/1/11 Page
INFRASTRUCTURE.
ENGINEERS
Address Complaints and Concerns Received from Neighbors and Citizens:
Infrastructure Engineers' approach to construction activity related challenges is to become
familiar with the nuances and special requirements/circumstances;which vary from community
to community and even from neighborhood to neighborhood. A proactive approach is utterly
important. This is achieved by making the citizens aware of the project benefits to the
community, activities and schedules, proper notification prior to start of work, proper
coordination to accommodate trash pick-up and provide access to vehicular and pedestrian
traffic, particularly during morning peak hours when citizens leave their homes to work or school,
without compromising the project schedule. We understand that one of the measuring tools for
successful implementation of any project is the limited number of complaints received.
Nonetheless, we are also aware that we need to be prepared to receive and resolve
complaints and concerns through proper coordination and communication channels in a very
timely manner. We will maintain and update a complaint log and share it with the City's team.
We believe that many complaints and concerns can be prevented by scheduling construction
so as to minimize the impact on the residents.The construction near the main entry/exit points to
the neighborhood can be scheduled to prevent impact during peak traffic hours.
Responding to Requests for Information (RFI ,
Infrastructure Engineers' Construction Manager will receive, review and respond to contractor's
RFI's in a timely manner to ensure the contractor's flow of work. Our reporting systems have
built-in mechanisms to expedite the flow of information and ensure that no issues are
inadvertently ignored. For instance, the request for information log will automatically highlight
any RFI that has remained unprocessed for a period of 10 days. That way we can immediately
respond to the RFI and eliminate a potential contractor claim for the delay. The change order
and submittal logs have similar mechanisms to alert our project team to act on issues before
they become problems. Infrastructure Engineers will require the successful contractor to provide
project information to the project team in an approved format. Infrastructure Engineers will
make sure this requirement is a part of the instructions to bidders.
Controlling Change Orders:
An essential element of our change order control program is the scope review process. Our
review process serves as a second set of eyes to assist in identifying and resolving potential
deficiencies in the proposed change, thereby improving the quality of the change order
documents before they are issued. A clear set of change order documents always results in
more competitive proposals that are not padded with contingencies to cover unknowns.
In performing our analysis of change orders, Infrastructure Engineers' attention is focused on
determining whether or not alleged change is merely a clarification. If it is a change, we find out
if it is necessary. Lastly, we determine how much added value, if any, is given to the project by
making the change and which party is responsible. Every pending change involving time or cost
will be evaluated in a timely manner. Infrastructure Engineers' recommendations will be given to
the City to facilitate timely and well-informed decisions. We will assist the City in negotiating with
the contractor to ensure the City receives a fair price for all change orders.
Conduct Final Job Walk- Prepare Punch List:
We believe that one of the approaches to maintaining a healthy construction project
implementation phase is to resolve punch list type items on an ongoing and daily basis. This will
prevent unnecessary delays, surprises and possible claims by the contractor. However, after the
completion of the project by the contractor, Infrastructure Engineers will arrange for and
conduct a final walk-through with the contractor and the City team at the earliest available
I
City of Diamond Bar: 2011-22012 CDBG CIJOD (damp Insiallation-9/1/1 1 Page 12
INFRASTRUCTURE
ENGINEERS
time. This jobsite meeting will be fully documented. Results of the job-walk and discovery of the
deficiencies that need to be corrected will become the basis for preparation of the "punch list."
The Infrastructure Engineers construction administration team will obtain buy-in from the
Contractor to reduce the possibility of claims/disputes. Upon completion of all deficiencies by
the Contractor, Infrastructure Engineers will forward to the City a letter of recommendation to
accept the project as complete.
Certify Progress and Final Contractor's Payment(s):
The Infrastructure Engineers Construction Manager will review the contractor's progress and final
payment application and transmit to the City with the appropriate recommendation.
Coordinate Warranty Work:
The Infrastructure Engineers Construction Manager will:
■ Request letter detailing warranty enforcement protocol and directory from
contractor. Prepare criteria for determination of warranty enforcement actions:
• Prepare warranty action report forms. -
■ Prepare warranty action report log and status report.
Task 11: Post Construction Services
Upon completion of the project, Infrastructure Engineers will prepare a final report identifying
project costs and final cost status, complete as-built drawings (if any), accounting reports,
inspection reports, final project photos, summary of all change orders and other related
documents. All such reports and documents will be delivered to City for its record.
j
i
City of Diamond Bar: 2011-0-012 CDBG Curb Ramp Installation-9/1/1 l Page 13
i .
INFRASTRUCTURE
$ ENGINEERS
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As shown on the organization chart above, Infrastructure Engineers has carefully selected the
team members that have and will perform excellent quality work pertaining to Design,
Construction Administration/Inspection, Surveying and Staking, and other related services.for the
j City.
Oty of Diamond Bar: 201 1-2012 CDBG Curb Rornp Instaila ion-9/1/11P,ge 14.
INFRASTRUCTURE 1815 E. Heim Ave.,Ste.100
ENGINEERS Orange, 92865
Tei.:714.9.7 40.01000100
Fax:714.940.0700
www.infeng.co
October 3, 2011
Ms. Kimberly Young, P.E.
Associate Engineer
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
Re: Amendment to Proposal for Design, Construction Administration/Inspection,
Surveying and Staking Services for the 2011-2012 Community
Development Block Grant(CDBG)Curb Ramp Installation Project
Dear Ms. Young:
This is to confirm that our proposal dated September 1, 2011 for subject project for a total fee of $26,830 is
established to cover all needed cost including design surveying and construction staking as needed for
completion of the project per City's requirements.
Should the City desire to add "the preservation of the surveying monuments" as a part of Infrastructure
Engineers' responsibilities (this was not required by original RFP), then the following shall be amended to our
proposal:
Items to be amended to Infrastructure Engineers' proposal dated September I, 2011 for
Design, Construction Administration/Inspection, Surveying and Staking Services for the
2011-2012 Community Development Block Grant (CDBG) Curb Ramp Installation
Project:
I. Task 12 to be added to proposal on page 13 and shall read as follows:
Tusk 12: Preservation of Surveying Monument
Any surveying monuments which are disturbed during construction of curb ramp installation will
be identified for preservation. Such monuments will be listed in the design document and will be
recorded with the Office of County Surveyor prior to start of construction and will be
reestablished after completion of the project construction, all in conformance with Section 2-9.1
of Standard Specifications for Public Works Construction (Green Book).
2. The "Not-to-Exceed Time and Material proposed Fee Schedule" dated September I, 2011 shall
be replaced with the enclosed revised Fee Schedule dated October 3, 2011.
Thank you again for giving us the opportunity to verify and/or amend our submitted proposal. We are looking
forward to working on this project with you and the City of Diamond Bar.
Sincerely,
/ ti��G�YS'"r�G2.
' Sousavi, M.S., P.E.
ent and Chief Executive Officer
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Agenda # 6 .5
Meeting Date: 10/18/2011
v1:1 1 <..rV V 1 V V1L
AGENDA REPORT
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<<>rePcicc�C=
TO: Honorable Mayor and Members of he City Council
VIA: James DeStefano, City Man g
TITLE: RESOLUTION NO. 11-XX OF THE ITY COUNCIL OF THE CITY OF DIAMOND BAR
APPROVING THE APPLICATION FOR $89,608 OF LAND AND WATER CONSERVATION GRANT
FUNDS, WHICH IF AWARDED, REQUIRES AN $89,670 MATCH FROM THE CITY, FOR THE
GRAND VIEW TRAIL LINK IN THE SUMMITRIDGE PARK TRAIL SYSTEM.
RECOMMENDATION: Adopt Resolution.
FINANCIAL IMPACT: Development of the Grand View Trail Link is estimated to cost $179,278.
The Land and Water Conservation grant requires a 50% match from the City. Staff is requesting
$89,608 from the Land and Water Conservation Fund. The remaining amount is $89,670. There are
Park Development funds, Quimby funds and Proposition A "Safe Parks Act" funds available for this
match.
BACKGROUND: The Grand View Trail Link is part of the Summitridge Trail System included in the
City's Recreational Trails and Bicycle Route Master Plan. This project will complete 2,448 feet of trail
from the Grand View trailhead at the Diamond Bar Center to the Canyon Loop Trail in the center of
the trail system. Estimated cost to fund these improvements is $179,278. The Land and Water
Conservation grant provides an opportunity to obtain funding to develop this portion of the trail. As
this is a matching grant, any grant funds awarded to the City of Diamond Bar will have to be matched
by the City. The source of matching funds includes Park Development funds, Quimby funds and
Proposition A"Safe Parks Act" funds.
DISCUSSION: The application for this grant is being prepared by Community Services staff. The
trail will be developed from the Grand View Trail off the lower parking lot of the Diamond Bar Center
to the Canyon Loop Trail in the center of the trail system. The project will include construction of a
hard pan trail and lodge pole fencing, landscape tie steps, a foot bridge in an area that is soggy a
portion of the year, benches and interpretive and directional signage. The application is due
November 1, 2011. This Resolution is a required element of the grant application. This is one of many
grant applications that staff has submitted over the years in an effort to obtain funds to construct
improvements identified in the Trails Master Plan. Examples of Diamond Bar projects funded in the
past with Land and Water Conservation grants include the Sycamore Canyon Park Trailhead on
Diamond Bar Blvd, Phase III of the Sycamore Canyon Park Trail and the Grand View Trail which is
now in the design phase.
PREPARED BY: RE BY:
Alison Meyers ose
C.S. Coordinator Director of Community Services
RESOLUTION NO. 2011-XX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR APPROVING
THE APPLICATION FOR LAND,AND WATER CONSERVATION FUND FOR
THE GRAND VIEW TRAIL LINK
WHEREAS, the Congress under Public Law 88-578 has authorized the establishment of a federal
Land and Water Conservation Fund Grant-In-Aid program, providing matching funds to the State of
California and its political subdivisions for acquiring lands and developing facilities for public outdoor
recreation purposes; and
WHEREAS, the California Department of Parks and Recreation is responsible for administration
of the program in the State, setting up necessary rules and procedures governing applications by local
agencies under the program; and
WHEREAS, said adopted procedures established by the State Department of Parks and
Recreation require the APPLICANT to certify by resolution the approval of applications and the availability
of eligible matching funds prior to submission of said applications to the State; and
WHEREAS, the proposed Grand View Trail Link project is consistent with the most recent
California Outdoor Recreation Plan (CORP); and
WHEREAS, the Project must be compatible with the land use plans of those
jurisdictions immediately surrounding Project;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Diamond Bar hereby:
1. Approves the filing of an Application for Land and Water Conservation Fund assistance; and
2. Agrees to abide by SECTION 6(F)(3) of Public Law 88-578 which states "No property acquired or
developed with assistance under this section shall, without the approval of the National Secretary of
the Interior, be converted to other than public outdoor recreation uses. The Secretary shall approve
such conversion only if he finds it to be in accord with the then existing comprehensive statewide
outdoor recreation plan and only upon such conditions as he deems necessary to assure the
substitution of other recreation properties of at least equal fair market value and of reasonably
equivalent usefulness and location."
3. Certifies that said agency has Matching funds from eligible source(s) and can finance 100 percent of
the Project, which up to half may be reimbursed; and
4. Certifies that the Project is compatible with the land use plans of those jurisdictions immediately
surrounding the Project; and
5. Appoints the City Manager of the City of Diamond Bar as agent of the APPLICANT to conduct all
negotiations and execute and submit all documents, including, but not limited to, applications,
contracts, amendments, payment requests, and compliance with all applicable current state and
federal laws which may be necessary for the completion of the aforementioned Project.
Approved and Adopted on the 18`h day of October 2011.
Steve Tye
Mayor
I, Tommye Cribbins, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing
Resolution was passed, approved and adopted at a regular meeting of the City Council of the City of
Diamond Bar held on the 18th day of October 2011 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
Tommye Cribbins, City Clerk
City of Diamond Bar
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Agenda # 6,6
Meeting Date: Oct. 18, 2011
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CITY COUNCIL AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Man
at
TITLE: APPROVE PLANS AND PECIFICATIONS AND AWARD
CONSTRUCTION CONTRACT FOR THE 21810 EAST COPLEY DRIVE
INTERCONNECT PROJECT TO PROTECH ENGINEERING CORP. IN
THE AMOUNT OF $35,350.00 AND AUTHORIZE A CONTINGENCY
AMOUNT OF $4,500.00 FOR CONTRACT CHANGE ORDERS TO BE
APPROVED BY THE CITY MANAGER, FOR A TOTAL
AUTHORIZATION AMOUNT OF $39,850.00.
RECOMMENDATION:
Approve and award.
FINANCIAL IMPACT:
For Fiscal Year 2011-2012, the Capital Improvement Program (CIP) Budget includes an
appropriation of Proposition C Funds in the amount of $125,000 for the rerouting of the
traffic signal interconnect communication lines from the existing Air Quality
Management District (AQMD) building to the new City Hall located at 21810 Copley
Drive. The project cost is substantially less than originally budgeted because an
existing conduit along Copley Drive was determined to be a viable alternative for use
and has resulted in minimizing the original scope of work.
DISCUSSION:
The City's Traffic Management System relies on a fiber optic trunk line that carries all
operating data and video transmissions from the City's outlying traffic signal network to
one central location at City Hall. Since we will be moving to a new location. on Copley
Drive, the fiber optic trunk line will need to be extended from,its current location. The
scope of this project includes the construction of new conduit and installation of new
fiber optic trunk line. During the course of design, it was determined that an existing
conduit between 21810 Copley Drive and the adjacent building located at the corner of
Golden Springs Drive and Copley Drive would become available for use. Re-use of this
conduit provided for substantial construction cost savings for this effort. In addition, any
existing fiber that currently extends into the AQMD building that is determined to be
feasible will be re-used to save on overall construction cost.
The project was advertised for bids between August 24, 2011 and September 20, 2011.
On September 20, 2011, the City received the following seven (7) bid proposals:
Company Base Bid Amount
1 Protech Engineering $35,350.00
2. Roadway Data & Electrical $35,470.00
3. Steiny & Company, Inc. $38,239.50
4. Crosstown Electrical & Data $38,890.00
5 Unique Performance Inc. $42,110.00
6 Freeway Electric, Inc. $56,233.00
7. Atom Engineering $67,398.00
The engineer's estimate for the project was $68,000.00. The lowest responsible bid
was received from Protech Engineering Corp. in the amount of $35,350.00. Staff
reviewed their bid and verified their State Contractor's License. Staff received
acceptable reviews for Protech Engineering, Corp. from the City of Orange, the City of
Garden Grove, and the City of La Quinta. The project schedule is tentatively set as
follows:
Award of Contract October 2011
Start Construction Mid-November 2011
Construction Complete Mid-December 2011
PREPARED BY:
Rick Yee, Senior Civil Engineer Date Prepared: October 10, 2011
REVIEWED
David dr6u,"birector of Public Works
Attachment: Contract Agreement
AGREEMENT
The following agreement is made and entered into, in duplicate, as of the date executed
by the Mayor and attested to by the City Clerk, by and between Protech Engineerinji
Corp. hereinafter referred to as the "CONTRACTOR" and the City of Diamond Bar,
Califonlia, hereinafter referred to as "CITY."
WHEREAS, pursuant to Notice Inviting Sealed Bids, bids were received, publicly
opened, and declared on the date specified in the notice; and
WHEREAS, City did accept the bid of CONTRACTOR
and;
WHEREAS, City has authorized the Mayor to execute a written contract with
CONTRACTOR for furnishing labor, equipment and material for the
in the City of Diamond Bar.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed:
1. GENERAL SCOPE OF WORK: CONTRACTOR shall funush all necessary
labor, tools, materials, appliances, and equipment for and do the work for the
in the City of Diamond Bar. The
work to be performed in accordance with the plans and specifications, dated (The
Plans and Specifications) on file in the office of the City Clerk and in accordance with bid prices
hereinafter mentioned and in accordance with the instructions of the City Engineer.
2. INCORPORATED DOCUMENTS TO BE CONSIDERED
COMPLEMENTARY: The Plans and Specifications are incorporated herein by reference and
made a part hereof with like force and effect as if set forth in full herein. The Plans and
Specifications, CONTRACTOR'S Bid dated , together with this written
agreement, shall constitute the contract between the parties. This contract is intended to require
a complete and finished piece of work and any -ding necessary to complete the work properly and
in accordance with the law and lawful governmental regulations shall be performed by the
CONTRACTOR whether set out specifically in the contract or not. Should it be ascertained that
any inconsistency exists between the aforesaid documents and this written agreement, the
provisions of this written agreement shall control.
3. COMPENSATION: CONTRACTOR agrees to receive and accept the prices set
forth in its Bid Proposal as full compensation for fiiniishing all materials, perfonning all work,
and falfilling all obligations hereunder. Said compensation shall cover all expenses, losses,
damages, and consequences arising out of the nature of the work during its progress or prior to
its acceptance including those for well and faithfully completing the work and the whole thereof
in the manner and time specified in the aforesaid contract documents; and also including those
arising from actions of the elements, unforeseen difficulties or obstructions encountered in the
prosecution of the work, suspension or discontinuance of the work, and all other unknowns or
risks of any description comzected with the work.
4. TERM OF CONTRACT: The CONTRACTOR agrees to complete the work
within ( ) calendar days from the date of the notice to proceed.
The CONTRACTOR agrees further to the assessment of liquidated damages in
the amount of five hundred ($500.00) dollars for each calendar day the work remains incomplete
'1
beyond the expiration of the completion date. City may deduct the amount thereof from any
monies due or that may become due the CONTRACTOR under this agreement. Progress
payments made after the scheduled date of completion shall not constitute a waiver of liquidated
damages.
5. INSURANCE: The CONTRACTOR shall not commence work under this
contract until he has obtained all insurance required hereunder in a company or companies
acceptable to City nor shall the CONTRACTOR allow any subcontractor to commence work on
his subcontract until all insurance required of the subcontractor has been obtained. The
CONTRACTOR shall take out and maintain at all times during the life of this contract the
following policies of insurance:
a. Workers' Compensation Insurance: Before beginning work, the
CONTRACTOR 'shall famish to the City a certificate of insurance as
proof that he has taken out fall workers' compensation insurance for all
persons whom he may employ directly or through subcontractors in
carrying out the work specified herein, in accordance with the laws of the
State of California. Such insurance shall be maintained in ffill force and
effect during the period covered by this contract.
In accordance with the provisions of Section 3700 of the California Labor
Code, every CONTRACTOR shall secure the payment of compensation to
his employees. The CONTRACTOR, prior to commencing work, shall
sign and file with the City a certification as follows:
"I am aware of the provisions of Section 3700 of the Labor Code
which requires every employer to be insured against liability for
workers' compensation or to undertake self insurance in accordance
with the provisions of that Code, and I will comply with such
provisions before commencing the performance of work of this
contract."
b. For all operations of the CONTRACTOR or any sub-contractor in
perfonning the work provided for herein, insurance with the following
minimum limits and coverage:
1) Public Liability - Bodily hijury (not auto) $500,000 each person;
$1,000,000 each accident.
2) Public Liability - Property Damage (not auto) $250,000 each
person; $500,000 aggregate.
3) CONTRACTOR'S Protective - Bodily Injury $500,000 each
person; $1,000,000 each accident.
4) CONTRACTOR'S Protective - Property Damage $250,000 each
accident; $500,000 aggregate.
5) Automobile - Bodily Injury $500,000 each person; $1,000,000
each accident.
6) Automobile- Property Damage $250,000 each accident.
C. Each such policy of insurance provided for in paragraph b. shall:
2
1) Be issued by an insurance company approved in writing by City,
which is authorized to do business in the State of California.
2) Name as additional insured the City of Diamond Bar, its officers,
agents and employees, and any other parties specified in the bid
documents to be so included;
3) Specify it acts as primary insurance and that no insurance held or
owned by the designated additional insured shall be called upon to
cover a loss under the policy;
4) Contain a clause substantially in the following words:
"It is hereby understood and agreed that this policy may not be
canceled nor the amount of the coverage thereof reduced until
thirty (30) days after receipt by City of a written notice of such
cancellation or reduction of coverage as evidenced by receipt of a
registered letter."
5) Otherwise be in form satisfactory to the City.
d. The policy of insurance provided for in subparagraph a. shall contain an
endorsement which:
1) Waives all right of subrogation against all persons and entities
specified in subparagraph 4.c.(2) hereof to be listed as additional
insured in the policy of insurance provided for in paragraph b. by
reason of any claim arising out of or connected with the operations
of CONTRACTOR or any subcontractor in performing the work
provided for herein;
2) Provides it shall not be canceled or altered without thirty(30) days'
written notice thereof given to City by registered mail.
e. The CONTRACTOR shall, within ten (10) days from the date of the
notice of award of the Contract, deliver to the City Manager or his
designee the original policies of insurance required in paragraphs a. and b.
hereof, or deliver to the City Manager or his designee a certificate of the
insurance company, showing the issuance of such insurance, and the
additional insured and other provisions required herein.
f. Self Insured Retention/Deductibles. All policies required by this
Agreement shall allow City, as additional insured, to satisfy the self-
insured retention ("SIR") and/or deductible of the policy in lieu of the
Owner (as the named insured) should Owner fail to pay the SIR or
deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director.
Owner understands and agrees that satisfaction of this requirement is an
express condition precedent to the effectiveness of this Agreement. Failure
by Owner as primary insured to pay its SIR or deductible constitutes a
material breach of this Agreement. Should City pay the SIR or deductible
on Owner's behalf upon the Owner's failure or refusal to do so in order to
secure defense and indemnification as an additional insured under the
3
policy, City may include such amounts as damages in any action against
Owner for breach of this Agreement in addition to any other damages
incurred by City due to the breach.
6. PREVAILING WAGE: Notice is hereby given that in accordance with the
provisions of California Labor Code, Division 2, Part 7, Chapter 1, Articles 1 and 2, the
CONTRACTOR is required to pay not less than the general prevailing rate of per diem wages for
work of a similar character in the locality in which the public works is perfornmed, and not less
than the general prevailing rate of per diem wages for holiday and overtime work. In that regard,
the Director of the Department of Industrial Relations of the State of California is required to and
has determined such general prevailing rates of per diem wages. Copies of such prevailing rates
of per diem wages are on file in the Office of the City Clerk of the City of Diamond Bar, 21825
Copley Drive, Diamond Bar, California, and are available to any interested party on request.
City also shall cause a copy of such determinations to be posted at the job site.
The CONTRACTOR shall forfeit, as penalty to City, not more than twenty-five
dollars ($25.00) for each laborer, workman or mechanic employed for each calendar day or
portion thereof, if such laborer, workman or mechanic is paid less than the general prevailing
rate of wages hereinbefore stipulated for any work done under this Agreement, by him or by any
subcontractor under him.
7. APPRENTICESHIP EMPLOYMENT: In accordance with the provisions of
Section 1777.5 of the Labor Code, and in accordance with the regulations of the California
Apprenticeship Council, properly indentured apprentices may be employed in the performance of
the work.
The CONTRACTOR is required to make contribution to fiords established for the
administrative of apprenticeship programs if he employs registered apprentices or journeymen in
any apprenticeship trade on such contracts and if other CONTRACTOR'S on the public works
site are making such contributions.
The CONTRACTOR and subcontractor under him shall comply with the
requirements of Sections 1777.5 and 1777.6 in the employment of apprentices.
Information relative to apprenticeship standards, wage schedules and other
requirements may be obtained from the Director of Industrial Relations, ex-officio the
Administrator of Apprenticeship, San Francisco, California, or from the Division of
Apprenticeship Standards and its branch offices.
8. LEGAL HOURS OF WORK: Eight (8) hours of labor shall constitute a legal
day's work for all workmen employed in the execution of this contract, and the CONTRACTOR
and any sub-contractor under him shall comply with and be governed by the laws of the State of
California having to do with working hours set forth in Division 2,Part 7, Chapter 1, Article 3 of
the Labor Code of the State of California as amended.
The CONTRACTOR shall forfeit, as a penalty to City, twenty-five dollars
($25.00) for each laborer, workman or mechanic employed in the execution of the contract, by
him or any sub- CONTRACTOR under him, upon any of the work hereinbefore mentioned, for
each calendar day during which the laborer, workman or mechanic is required or permitted to
labor more than eight (8) hours in violation of the Labor Code.
9. TRAVEL AND SUBSISTENCE PAY: CONTRACTOR agrees to pay travel
and subsistence pay to each workman needed to execute the work required by this contract as
4
such travel and subsistence payments are defined in the applicable collective bargaining
agreements filed in accordance with Labor Code Section 17.73.8.
10. CONTRACTOR'S LIABILITY: The City of Diamond Bar and its officers,
agents and employees ("Indemnitees") shall not be answerable or accountable in any manner for
any loss or damage that may happen to the work or any part thereof, or for any of the materials
or other things used or employed in performing the work; or for injury or damage to any person
or persons, either workers or employees of CONTRACTOR, of its subcontractors or the public,
or for damage to adjoining or other property from any cause whatsoever arising out of or in
connection with the performance of the work. CONTRACTOR shall be responsible for any
damage or injury to any person or property resulting from defects or obstructions or from any
cause whatsoever.
CONTRACTOR will indemnify hndem pities against and will hold and save Indemnitees
harmless from any and all actions, claims, damages to persons or property, penalties, obligations
or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political
subdivision, or other organization arising out of or in connection with the work, operation, or
activities of CONTRACTOR, its agents, employees, subcontractors or invitees provided for
herein, whether or not there is concurrent passive negligence on the part of City. In connection
therewith:
a. ,CONTRACTOR will defend any action or actions filed in comnection with
any such claims, damages, penalties, obligations or liabilities and will pay
all costs and expenses, including attorneys' fees, expert fees and costs
incurred in comlection therewith.
b. CONTRACTOR will promptly pay any judgment rendered against
CONTRACTOR or hndeemnitees covering such claims, damages, penalties,
obligations and liabilities arising out of or in comzection with such work,
operations or activities of CONTRACTOR hereunder, and
CONTRACTOR agrees to save and hold the Indemnitees harmless
therefrom.
C. hi the event.Indemnitees are made a party to any action or proceeding
filed or prosecuted against CONTRACTOR for damages or other claims
arising out of or in comlection with the work, operation or activities
hereunder, CONTRACTOR agrees to pay to Indemnitees and any all costs
and expenses incurred by Indemnitees in such action or proceeding
together with reasonable attorneys' fees.
Contractor's obligations under this section apply regardless of whether or not such claim,
charge, damage, demand, action, proceeding, loss, stop notice, cost, expense,judgement, civil fine
or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without
affecting the rights of City under any provision of this agreement, Contractor shall not be
required to indemnify and hold harmless City for liability attributable to the active negligence of
City, provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City active negligence accounts for only a percentage of the
liability involved, the obligation of Contractor will be for that entire portion or percentage of
liability not attributable to the active negligence of City.
So much of the money due to CONTRACTOR under and by virtue of the contract as
shall be considered necessary by City may be'retained by City until disposition has been made of
such actions or claims for damages as aforesaid.
5
It is expressly understood and agreed that the foregoing provisions are intended to be as
broad and inclusive as is permitted by the law of the State of California. This indemnity
provision shall survive the termination of the Agreement and is in addition to any other rights or
remedies which Indemnitees may have under the law.
This indemnity is effective without reference to the existence or applicability of any
insurance coverage which may have been required under this Agreement or any additional
insured endorsements which may extend to Indemnitees.
CONTRACTOR, on behalf of itself and all parties claiming under or through it, hereby
waives all rights of subrogation and contribution against the Indemnitees, while acting within the
scope of their duties, from all claims, losses and liabilities arising out of or incident to activities
or operations performed by or on behalf of the CONTRACTOR regardless of any prior,
concurrent, or subsequent passive negligence by the Indemnitees.
11. NON-DISCRIMINATION: Pursuant to Labor Code Section 1735, no
discrimination shall be made in the employment of persons in the work contemplated by this
Agreement because of the race, color or religion of such person. A violation of this section
exposes the CONTRACTOR to the penalties provided for in Labor Code Section 1735.
12. TERMINATION: This agreement may be terminated by the City, without cause,
upon the giving of a written "Notice of Termination" to CONTRACTOR at least thirty (30) days
prior to the date of termination specified in the notice. In the event of such termination,
CONTRACTOR shall only be paid for services rendered and expenses necessarily incurred prior
to the effective date of termination.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement with all the
folinalities required by law on the respective dates set forth opposite their signatures.
State of California
"CONTRACTOR'S" License No.
By:
TITLE
Date
CITY OF DIAMOND BAR, CALIFORNIA
By:
STEVE TYE, MAYOR
Date
ATTEST:
By:
TOMMYE CRIBBINS, CITY CLERK
Date
CONTRACTOR'S Business Phone
Emergency Phone at which CONTRACTOR can be reached at any time
APPROVED AS TO FORM:
CITY ATTORNEY
Date
7
Agenda # 6, '7
Meeting Date :October 18, 2011
�ciTr
CITY COUNCIL AGENDA REPORT
UPPbRN��i
Y�
TO: Honorable Mayor and Members oJ the City Council
VIA: James DeStefano, City Mang
TITLE: AWARD PROFESSIONAL ENGI ERING SERVICES CONTRACT FOR ON-
CALL TRAFFIC ENGINEERING WITH (a.) ADVANTEC CONSULTING
ENGINEERS, (b.) ITERIS , (c.) SASASKI TRANSPORTATION SERVICES,
(d.) WARREN SIECKE, (e.) FEHR & PEERS, AND (f.) KOA CORPORATION
FOR A PERIOD OF THREE (3) YEARS
RECOMMENDATION:
Approve.
FINANCIAL IMPACT:
For development related projects, funding will be provided through developer fees and
deposits paid by the applicant prior to the plan/report review stage. For specific traffic and
transportation engineering services needed by the Public Works Department, the 2011/2012
Fiscal Year budget includes $65,000 for these services.
BACKGROUND/DISCUSSION:
To supplement the City's professional capabilities, traffic and transportation engineering
services have been utilized by the City on an as-needed basis. The current consultant
service agreements are set to expire on October 31, 2011.
In August 2011, the City issued a Request for Proposals (RFP) inviting consultants to submit
proposals for traffic and transportation engineering services on an as-needed basis. A total
of seven (7) proposals were received which are available in the City Clerks' office. City staff
independently reviewed each proposal and then collaborated to determine the most qualified
consultants. As a result, Advantec Consulting Engineers, Iteris, Sasaki Transportation
Services, Warren C. Siecke, Fehr & Peers, and KOA Corporation were recommended for
three (3) year contracts to provide on-call traffic and transportation engineering services with
the option to extend by two (2) additional years upon mutual consent. Due to the specialized
niches within the traffic and transportation engineering field, it is beneficial to retain multiple
firms because collectively these firms are able to provide the full range of desired services.
With the exception of Iteris, each of these consultants has previously worked for Diamond Bar
to successfully deliver projects and services. Iteris has demonstrated relevant experience
and expertise with traffic operations and management. Specifically, Iteris staff has
experience with management of complex traffic flows associated with construction and large
^
public 8v8Dt8 including theme park attendance. AdV@Ot8C and K[}A Corporation provide
traffic signal and traffic rD@Oag8[OeOt 8VSt8nO GUDDO[t and have been instrumental in
Dl8iDt8iDiDg efficiency in our traffic signal sVDChnOOiZ@tiVD efforts. Sasaki Transportation
Services has pPOVgO to be an aQSEd with their history Of 8Xpeh8OC8 with the traffic impact
studies 8GGOCi@t8d with the City of Industry's development projects. Fehr & PBH[S is already
under contract for the SR 57/80 Congestion Relief Effort, but they also have [8GOUrceS that
can aid the City in reviewing traffic impact studies and can provide useful pHnGDRCtiVe on
transportation 88they relate tOregional issues. Lastly, Warren C. Sieck8has @ multitude Of
8Xp8[i8DCe as 8 City Traffic Engineer for several local area municipalities. He is able to
advise the City on traffic engineering issues as they F8|@t8 to OlUDiCiD8l practices.
The SCOD8 Ofservices tO he provided include: geometric and traffic signal design, review Of
various environmental and traffic impact studies, conducting studies and preparing nepOdS.
preparing data for the CODg8GUOO Ol@D8geOO8Di pnOg[@Dl' preparing and Dl8iDt8iDiOg traffic
signal Op8[8UOO and coordination 8tUdi8G' traffic Dl8D8gOrDeDt sVGt8n0 support, and other
related G8rViCeS as requested by the City which pertain to development and capital projects.
� ConOp8OS8hOO for these 88rViC8G will be billed in @ccORj8DCB with the appropriate
classification Ofservice provided pursuant tVeach consultant's fee schedule.
PREPARED BY:
Rick Yee, Senior Civil Engineer Date Prepared: October 11' 2O11
REVIEW BY:
U8V|O G. L|V,ffi[8CtOrOT PUDUC YYO[KG
Attachments: Conau|tantSnrvioaoAgmamont-AdvontecConou|UngEnginoano
Cunou|hsntSomivanAgmement-|tehn
ConeulhantSemiomoAgmoment-SenakiTmnopodationSemionn
Consultant Services Agreement-Warren C. 8iecke
Connu|tantServioeoAgreemont-Fehr&Peem
Conou|tantSemiunnAgmemmnt-KOACorporaUon
2
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 1 20' -",. by and between the
City of Diamond Bar, a municipal corporation ("City") and Advantec Consulting
Engineers Inc., ("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 , 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1 Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31
2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20XX7
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Leo Lee,. PE
City of Diamond Bar Advantec Consulting Engineers
21825 Copley Drive 21700 Copley Drive, Suite 350
Diamond Bar, CA 91765-4178 Diamond Bar, CA 91765
1
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum, limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an. express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership
rship of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
4
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimi nation and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, 'religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
5
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
6
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
7
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 20. " by and between the
City of Diamond Bar, a municipal corporation ("City") and Iteris Inc.,
("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 , 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1. Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 _, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20XX,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Scott Carlson, PE
City of Diamond Bar Iteris
21825 Copley Drive 1700 Carnegie Ave, Suite 100
Diamond Bar, CA 91765-4178 Santa Ana, CA 92705-5551
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting°and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not lessthan $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A V11.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
4
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense; all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations, or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
5
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the.
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
11cityll
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 2C' by and between the
City of Diamond Bar, a municipal corporation ("City") and Sasaki Transportation
Services _, Inc., ("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 , 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
I Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 29 -1 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20XX,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Steve Sasaki, PE
City of Diamond Bar Sasaki Transportation Services
21825 Copley Drive PO Box 5159
Diamond Bar, CA 91765-4178 Laguna Beach, CA 91765-4178
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
,independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit fails to sustain the validity of a wholly independent contractor
relationship between City and Consultant because Consultant is not in business for itself
and/or providing similar services to other clients, then Consultant agrees to reimburse
City for all costs, including accounting and attorney's fees, arising out of such audit and
any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. CONSULTANT shall indemnify, defend (with counsel
reasonably acceptable to CITY), and hold harmless CITY, its officers, officials,
employees and volunteers from and against all liability, loss, damage, expense, cost
(including without limitation reasonable attorneys fees, expert fees and all other costs
and fees of litigation) ("Claim" and/or "Claims") arising out of, pertaining to or relating to
2
CONSULTANT's negligence, recklessness or willful misconduct in the performance of
work under this AGREEMENT, except to the extent that such loss or damage is caused
by the active negligence or willful misconduct of the CITY, or the negligence or willful
misconduct of the CITY's independent contractors, including the general contractor,
subcontractors and other consultants retained by the CITY. Should the CONSULTANT
and CITY be unable to execute a conflict of interest waiver in furtherance of the joint
representation by CONSULTANT'S legal counsel, an actual, unwaivable conflict of
interest exists or the CITY finds CONSULTANT'S legal counsel unacceptable, then
CONSULTANT shall reimburse the CITY its costs of defense, including without limitation
reasonable attorneys fees, expert fees and all other costs and fees of litigation to the
extent such fees, costs and all other costs are determined by the court of competent
jurisdiction to have been caused by the actual negligence, recklessness or willful
misconduct of the Consultant. The CONSULTANT shall promptly pay any final judgment
rendered against the CITY (and its officers, officials, employees and volunteers) to the
extent such Claims are determined by a trier of fact to have been caused by
CONSULTANT'S negligence, recklessness or willful misconduct. It is expressly
understood and agreed that the foregoing provisions are intended to be in compliance
with Civil Code Section 2782.8 and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law. City, its officers, employees, attorneys, and volunteers shall be named
as additional insureds on the policy(ies) as to comprehensive general liability, property
damage, and automotive liability. The policy (ies) as to comprehensive general liability,
property damage, and automobile liability shall provide that they are primary, and that
any insurance maintained by the City shall be excess insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
3
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
.precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, , documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
Notwithstanding any other provision of this Agreement, nothing received by
Consultant shall be considered to be city Confidential Information if (1) it has been
published or otherwise readily available to the public other than by a breach of this
Agreement; (2) it has been rightfully received by Consultant from a third party without
confidentiality limitations; (3) it has been developed independently by Consultant or for
Consultant; or (4) it was known to Consultant prior to the Effective Date of this
Agreement.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
4
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
P
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision,, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
5
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon I by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
6
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California. The venue for any action
brought under this Agreement shall be Los Angeles County.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
11cityff
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
7
By:
Its:
i
s
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of , 20 — by and between the
City of Diamond Bar, a municipal corporation ("City") and Warren C. Siecke Inc.,
("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1 Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 26 _, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20XX,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Warren Siecke, PE
City of Diamond Bar Warren C. Siecke
21825 Copley Drive 20142 Canyon Drive
Diamond Bar, CA 91765-4178 Yorba Linda, CA 92886-6058
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant.and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. CONSULTANT shall indemnify, defend (with counsel
reasonably acceptable to CITY), and hold harmless CITY, its officers, officials,
employees and volunteers from and against all liability, loss, damage, expense, cost
(including without limitation reasonable attorneys fees, expert fees and all other costs
and fees of litigation) ("Claim" and/or "Claims") arising out of, pertaining to or relating to
CONSULTANT's negligence, recklessness or willful misconduct in the performance of
2
work under this AGREEMENT, except to the extent that such loss or damage is caused
by the active negligence or willful misconduct of the CITY, or the negligence or willful
misconduct of the CITY's independent contractors, including the general contractor,
subcontractors and other consultants retained by the CITY. Should the CONSULTANT
and CITY be unable to execute a conflict of interest waiver in furtherance of the joint
representation by CONSULTANT'S legal counsel, an actual, unwaivable conflict of
interest exists or the CITY finds CONSULTANT'S legal counsel unacceptable, then
CONSULTANT shall reimburse the CITY its costs of defense, including without limitation
reasonable attorneys fees, expert fees and all other costs and fees of litigation to the
extent such fees, costs and all other costs are determined by the court of competent
jurisdiction to have been caused by the actual negligence, recklessness or willful
misconduct of the Consultant. The CONSULTANT shall promptly pay any final judgment
rendered against the CITY (and its officers, officials, employees and volunteers) to the
extent such Claims are determined by a trier of fact to have been caused by
CONSULTANT'S negligence, recklessness or willful misconduct. It is expressly
understood and agreed that the foregoing provisions are intended to be in compliance
with Civil Code Section 2782.8 and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
3
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney .and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
4
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue.performing services.
14. * Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
5
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and. local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
6
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
1
shall constitute one and the same instrument.
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 1 20. by and between the
City of Diamond Bar, a municipal corporation ("City") and Fehr & Peers Inc.,
("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 ' , 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1. Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 _, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20XX,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Steve Brown, PE
City of Diamond Bar Fehr & Peers
21825 Copley Drive 15707 Rockfield Blvd, Suite 155
Diamond Bar, CA 91765-4178 Irvine, CA 92618-2897
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor , relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant'shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant s negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
4
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap,. medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
6
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City,will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
.ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of .-, 20, - by and between the
City of Diamond Bar, a municipal corporation ("City") and KOA Corporation Inc.,
("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 , 2011.
B. Consultant represents that it is fully 'qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1 Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 -, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect , 20XX,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Min Zhou, PE
City of Diamond Bar KOA Corporation
21825 Copley Drive 1120 West La Veta Ave, Suite 660
Diamond Bar, CA 91765-4178 Orange, CA 92868
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts, paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
j of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property. damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
Ij to the terms of this Agreement; shall be issued by an insurance company which is
j authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
4
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
5
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by ;either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
6
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
PROPOSALS AVAILABLE FOR REVIEW IN THE CITY CLERK'S OFFICE.
i
l
i
Agenda # 6 , 8
Meeting Date :October 18, 2011
�C IIT
---1���6 ice•�.__� ....._'
CITY COUNCIL ��� 'CPOR��� AGENDA REPORT
� �>R
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City a
TITLE: AWARD PROFESSIONAL EN INEERING SERVICES CONTRACT FOR ON-
CALL CIVIL ENGINEERING WITH (a.) HALL AND FOREMAN, INC., (b.)
ONWARD ENGINEERING, (c.) HARRIS AND ASSOCIATES, AND (d.) DMS
CONSULTANTS FOR A PERIOD OF THREE (3) YEARS
RECOMMENDATION:
Approve.
FINANCIAL IMPACT:
Funding for these services will be provided through developer fees and deposits associated
with the respective development projects. In Fiscal year 2011/2012 a total of $45,000 has
been budgeted for engineering plan check and inspection services. This amount represents
82% of the funds that are anticipated to be collected from project applicants. The remaining
18% of funds will be retained by the City to cover the administrative costs of processing
development plans and reports.
BACKGROUND/DISCUSSION:
To supplement the City's professional capabilities, consultant engineering plan check and
inspection services have been utilized by the City on an as-needed basis. The current
consultant service agreements are set to expire on October 31, 2011.
A Request for Proposals (RFP) was issued in August 2011 and a total of six (6) proposals
were received which are available in the City Clerks' office. City staff independently reviewed
each proposal and then collaborated to determine the most qualified consultants. As a result,
Hall and Foreman, Inc., Onward Engineering, Harris and Associates, and DMS Consultants
were recommended for three (3) year contracts to provide on-call engineering, plan check,
and inspection services with the option to extend by two (2) additional years upon mutual
consent. In order to provide timely and responsive review of development projects, it is
beneficial to retain multiple firms to provide the desired services.
With the exception of Harris and Associates, each of these consultants has previously worked
for Diamond Bar to successfully deliver projects and services. Harris and Associates has
demonstrated relevant experience and expertise with similar projects in several local area
municipalities. Each consultant will bring a level of experience and professionalism that is
beneficial to the City.
The scope of services to be provided include:
I) Preparation of and monitoring the implementation of project conditions of approval;
2) Review and approval of site plans and grading plans for development projects;
3) Review and approval of various subdivision maps and related documents;
4) Inspection and monitoring of grading activities and construction of public
improvements;
5) Maintenance of an established process and turnaround time frame; and
6) Provision of other engineering/development related services as requested by City
staff.
For development related projects, the consultants will be compensated at 82 percent of the
fees outlined in City Fee Resolution No. 2011-2 for the first three (3) plan checks and the first
inspection. Compensation for reviews exceeding three (3) plan checks will be billed to the
project applicant at -designated rates for appropriate classifications. The fee for any re-
inspection will also be based on the established rate for all consultants.
Compensation for all other engineering services will be billed in accordance with the
appropriate classification of service provided pursuant to each consultant's fee schedule.
PREPARED BY:
Rick Yee, Senior Civil Engineer Date Prepared: October 11, 2011
REVIEW BY:BY:
David G. Liu, birector of Public Works
Attachments: Consultant Services Agreement—Hall and Foreman, Inc.
Consultant Services Agreement—Onward Engineering
Consultant Services Agreement—Harris&Associates
Consultant Services Agreement—DMS Consultants
2
PROPOSALS AVAILABLE FOR REVIEW IN THE CITY CLERK'S OFFICE.
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of - 2e by and between the
City of Diamond Bar, a municipal corporation ("City") and Hall and Foreman , Inc.,
("Consultant")
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 2011.
B. Consultant represents that it is fully qualified to perform` such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1. Consultant's Services.
A. Scope of Services. The nature and scope p of the specific services to
be performed by Consultant are as described in Exhibit, "B" the Consultant's Proposal,
dated August 31 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B:"
2. Term of Agreement. This Contract shall take effect 20:
and shall continue until unless earlier terminated pursuant to the provisions
`herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper,invoices in the
j form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City James DeStefano, City Manager`Consultant: Jon Bourgeois., PE
City of Diamond Bar Hall and Foreman, Inc.
21825 Copley Drive 17782 17th Street, Suite 200
Diamond Bar, CA 91765-4178 Tustin, CA 92780
comply with any of its obligations contained in this Agreement, except such loss or
damage which. is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without Limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The-Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits ' of
$1,000,000.00 combined single limit coverage against any injury,.death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation 'insurance with a minimum limit of $500,000.00 or the. amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they .are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall-provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant`pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall.be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's, covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination,' City agrees to pay Consultant for services
satisfactorilyrendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has; or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant' or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
I eserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national`origin, 'ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include' but.not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates'of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed,by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap,`medical condition, or sexual'orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
5
24. Entire Agreement. This Agreement, and. any. other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant. and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
.IN WITNESS WHEREOF, the parties have executed this Agreement as of.
the date first written above.
..City..
ATTEST: CITY OF DIAMOND BAR
By; By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
I
7
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific.reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on,behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
'iCONSULTANT°
By:
Its:
7
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 20' "', by and between the
City of Diamond Bar, a municipal corporation ("City") and Onward Engineering
Inc., ("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1 Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 -, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20-,,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Majdi Ataya, PE
City of Diamond Bar Onward Engineering
21825 Copley Drive 300 S. Harbor, Suite 814
Diamond Bar, CA 91765-4178 Anaheim, CA 92805
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
,make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
4
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered 'by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
5
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or' proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
6
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 20i by and between the
City of Diamond Bar, a municipal corporation ("City") and Harris & Associates
Inc., ("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 , 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1 Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 _, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20.-,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Ehab Gerges, PE
City of Diamond Bar Harris & Associates
21825 Copley Drive 34 Executive Park, Suite 150
Diamond Bar, CA 91765-4178 Irvine, CA 92614-4705
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and holdharmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
4
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
5
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
6
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 1 201- "' by and between the
City of Diamond Bar, a municipal corporation ("City") and DMS Consultants Inc.,
("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1. Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 2 0,*�:
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Surender Dewan, PE
City of Diamond Bar DMS Consultants, Inc.
21825 Copley Drive 12371 Lewis Street, Suite 203
Diamond Bar, CA 91765-4178 Garden Grove, CA 92840
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf.of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any man'ner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
recklessness or willful misconduct in the performance of work hereunder or its failure to
2
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
3
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
-understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
4
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily. rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant Will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
5
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by,either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced,in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
6
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
Agenda # 6 .9
Meeting Date :October 18 2011
��
n
-1 -_.. -
CITY COUNCILn r. AGENDA REPORT
ORPoUIN
TO: Honorable Mayor and Members of4he City Council
VIA: James DeStefano, City Man g
TITLE: AWARD PROFESSIONAL ENGIN EKING SERVICES CONTRACT FOR ON-
CALL SOILS AND GEOTECHNICAL ENGINEERING SERVICES WITH (a.)
LEIGHTON AND ASSOCIATES, INC. (b.) WILLDAN GEOTECHNICAL, AND
(c.) NINYO AND MOORE FOR A PERIOD OF THREE (3) YEARS
RECOMMENDATION:
Approve.
FINANCIAL IMPACT:
For development related projects, funding will be provided through developer fees and
deposits paid by the applicant prior to the plan/report review stage. For soils and
geotechnical engineering services, the 2011/2011 Fiscal Year budget includes $40,000 for
these services.
BACKGROUND/DISCUSSION:
To supplement the City's professional capabilities, soils and geotechnical engineering
services have been utilized by the City on an as-needed basis. The current consultant
service agreements are set to expire on October 31, 2011.
A Request for Proposals (RFP) was issued in August 2011 and a total of three (3) proposals
were received which are available in the City Clerks' office. City staff independently reviewed
each proposal and then collaborated to determine the most qualified consultants. As a result,
Leighton & Associates, Inc., Willdan Geotechnical, and Ninyo and Moore were recommended
for three (3) year contracts to provide on-call soils and geotechnical engineering services with
the option to extend by two (2) additional years upon mutual consent. In order to provide
timely and responsive review of development projects, it is beneficial to retain multiple firms
to provide the desired services.
Each of these consultants has previously worked for Diamond Bar to successfully deliver
projects on time. Staff has been pleased with the level of experience and professionalism
that each consultant brings.
'
The scope of services to be provided include: [eVeVV and [ecorDn08Od8tiOn of various soils
investigations, g8Ot8chDiC8l, engineering geology, and eOViPOODl8Dt@l remediation nBpOd3
which pertain to d8VelOpDlHDt and capital projects, p8V8nO8Dt testing and aD8lySiG, soils
investigation and CODlp8CtiOD testing, and other related services 88 requested by the City
which pertain tOdevelopment and capital projects.
Compensation will be in @CCOFd8nQe with City Fee R8GnlUtiOO No. 2011-20 and the
appropriate C|8GGifiC8bDD Of service provided pU[GU@Dt to each CODsu|t8Dt'8 fee schedule.
Deposits are received atthe time Ofproject SUbOlitt8l and consultant fees are drawn from the
deposit account OD@Oactual cost basis.
PREPARED BY:
Rick Yee, Senior Civil Engineer Date Prepared: October 11' 2011
7 71/%��
Attachments: Consultant Services Agreement-Leighton&Associates
Consultant Services Agreement-VVi||danGnobanhinoa|
Consultant Services Arewmeni-Ninyo& Moore
!
|
i 2
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of 7 2C :' by and between the
City of Diamond Bar, a municipal corporation ("City") and Leighton and
Associates Inc., ("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1 Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
,be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 -7 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20' '-,1,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3 Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Phil Buchiarelli, CEG
City of Diamond Bar Leighton & Associates
21825 Copley Drive 10532 Acacia St, Suite B-6
Diamond Bar, CA 91765-4178 Rancho Cucamonga, CA 91730
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant s'hall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
1 7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. CONSULTANT shall indemnify, defend (with counsel
reasonably acceptable to CITY), and hold harmless CITY, its officers, officials,
employees and volunteers from and against all liability, loss, damage, expense, cost
(including without limitation reasonable attorneys fees, expert fees and all other costs
and fees of litigation) ("Claim" and/or "Claims") arising out of, pertaining to or relating to
2
CONSULTANT's negligence, recklessness or willful misconduct in the performance of
work under this AGREEMENT, except to the extent that such loss or damage is caused
by the active negligence or willful misconduct of the CITY, or the negligence or willful
misconduct of the CITY's independent contractors, including the general contractor,
subcontractors and other consultants retained by the CITY. Should the CONSULTANT
and CITY be unable to execute a conflict of interest waiver in furtherance of the joint
representation by CONSULTANT'S legal counsel, an actual, unwaivable conflict of
interest exists or the CITY finds CONSULTANT'S legal counsel unacceptable, then
CONSULTANT shall reimburse the CITY its costs of defense, including without limitation
reasonable attorneys fees, expert fees and all other costs and fees of litigation to the
extent such fees, costs and all other costs are determined by the court of competent
jurisdiction to have been caused by the actual negligence, recklessness or willful
misconduct of the Consultant. The CONSULTANT shall promptly pay any final judgment
rendered against the CITY (and its officers, officials, employees and volunteers) to the
extent such Claims are determined by a trier of fact to have been caused by
CONSULTANT'S negligence, recklessness or willful misconduct. It is expressly
understood and agreed that the foregoing provisions are intended to be in compliance
with Civil Code Section 2782.8 and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a 'minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of negligent acts, errors, or omissions of Consultant, in an amount
of not less than $1,000,000 per claim and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
3
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
4
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
5
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
6
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
24. Entire . Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made as of ', 20' by and between the
City of Diamond Bar, a municipal corporation ("City") and Willdan Geotechnical_,
Inc., ("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
I Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 31 -, 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 201 ,
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B". Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Ross Khiabani, PE
City of Diamond Bar Willdan Geotechnical
21825 Copley Drive 1515 S. Sunkist St, Suite E
Diamond Bar, CA 91765-4178 Anaheim, CA 92806
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
2
recklessness or willful misconduct in the performance of work hereunder or its failure to
comply with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation. The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance:carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
3
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible'of the policy in lieu of the Owner (as the named insured) should Owner fail to,
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's,failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
4
would conflict in any manner with the performance of its services pursuant to this
Agreement.
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
5
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
,provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to,
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
6
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed .by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
.25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
11cityll
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
CONSULTING SERVICES AGREEMENT
I
THIS AGREEMENT is made as of 20", '-- by and between the
City of Diamond Bar, a municipal corporation ("City") and Ninvo & Moore Inc.,
("Consultant").
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor
to provide consulting services to City as set forth in Exhibit "A", the City's Request for
Proposals dated August 10 2011.
B. Consultant represents that it is fully qualified to perform such consulting
services by virtue of its experience and the training, education and expertise of its
principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants
and conditions herein contained, the parties hereto agree as follows:
1 Consultant's Services.
A. Scope of Services. The nature and scope of the specific services to
be performed by Consultant are as described in Exhibit "B" the Consultant's Proposal,
dated August 30 2011 to the City's Request for Proposals.
B. Level of Services/Time of Performance. The level of and time of the
specific services to be performed by Consultant are as set forth in Exhibit "B."
2. Term of Agreement. This Contract shall take effect 20'.
and shall continue until unless earlier terminated pursuant to the provisions
herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the schedule set
forth in Exhibit "B"'. Payment will be made only after submission of proper invoices in the
form specified by City.
4. General Terms and Conditions. In the event of any inconsistency
between the provisions of this Agreement and Consultant's proposal, the provisions of
this Agreement shall control.
5. Addresses.
City: James DeStefano, City Manager Consultant: Kurt Yoshii, PE, GE
City of Diamond Bar Ninyo & Moore
21825 Copley Drive 475 Goddard, Suite 200
Diamond Bar, CA 91765-4178 Irvine, CA 92618
6. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor
any of its agents shall have control over the conduct of Consultant or any of Consultant's
employees, except as set forth in this Agreement. Consultant shall not, at any time, or in
any manner, represent that it or any of its agents or employees are in any manner
agents or employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to
Consultant under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in ,any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law
regarding Consultant and Consultant's employees. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with
applicable worker's compensation laws. City shall have the right to offset against the
amount of any fees due to Consultant under this Agreement any amount due to City from
Consultant as a result of Consultant's failure to promptly pay to City any reimbursement
or indemnification arising under this Section 6.
D. Consultant shall, at Consultant's sole cost and expense fully secure
and comply with all federal, state and local governmental permit or licensing
requirements, including but not limited to the City of Diamond Bar, South Coast Air
Quality Management District, and California Air Resources Board. Consultant further
agrees to indemnify and hold City harmless from any failure of Consultant to comply with
the requirements in Section 6. Additionally, the City shall have the right to offset against
the amount of any fees due to Consultant under this Agreement for any amount or
penalty levied against the City for Consultant's failure to comply with Section 6.
7. Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions.
8. Indemnification. Consultant shall indemnify, defend with counsel
approved by City, and hold harmless City, its officers, officials, employees and
volunteers from and against all liability, loss, damage, expense, cost (including without
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation)
of every nature arising out of or in connection with Consultant 's negligence,
2
recklessness or willful misconduct in the performance of work hereunder or its failure to
comply
y with any of its obligations contained in this Agreement, except such loss or
damage which is caused by the sole active negligence or willful misconduct of the City
(meaning that Consultant shall indemnify and defend City notwithstanding any alleged or
actual passive negligence of City which may have contributed to the claims, damages,
costs or liability). Should City in its sole discretion find Consultant's legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense, including
without limitation reasonable attorneys fees, expert fees and all other costs and fees of
litigation: The Consultant shall promptly pay any final judgment rendered against the
City (and its officers, officials, employees and volunteers) with respect to claims
determined by a trier of fact to have been the result of the Consultant's negligence,
recklessness or willful misconduct. It is expressly understood and agreed that the
foregoing provisions are intended to be as broad and inclusive as is permitted by the law
of the State of California and will survive termination of this Agreement.
9. Insurance. Consultant shall at all times during the term of this Agreement
carry, maintain, and keep in full force and effect, with an insurance company authorized
to do business in the State of California and approved by the City (1) a policy or policies
of broad-form comprehensive general liability insurance with minimum limits of
$1,000,000.00 combined single limit coverage against any injury, death, loss or damage
as a result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement; (2)
property damage insurance with a minimum limit of $500,000.00; (3) automotive liability
insurance, with minimum combined single limits coverage of $500,000.00; (4)
professional liability insurance (errors and omissions) to cover or partially cover damages
that may be the result of errors, omissions, or negligent acts of Consultant, in an amount
of not less than $1,000,000 per occurrence and at least $1,000,000 aggregate; and (5)
worker's compensation insurance with a minimum limit of $500,000.00 or the amount
required by law, whichever is greater. City, its officers, employees, attorneys, and
volunteers shall be named as additional insureds on the policy(ies) as to comprehensive
general liability, property damage, and automotive liability. The policy (ies) as to
comprehensive general liability, property damage, and automobile liability shall provide
that they are primary, and that any insurance maintained by the City shall be excess
insurance only.
A. All insurance policies shall provide that the insurance coverage shall not be
non-renewed, canceled, reduced, or otherwise modified (except through the addition of
additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City thirty (30) day's prior written notice thereof. Consultant agrees that it will not
cancel, reduce or otherwise modify the insurance coverage.
B. All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement; shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by the
City; and shall be placed with a current A.M. Best's rating of no less that A VII.
3
C. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum worker's compensation insurance requirements above,
and (2) insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less that one (1) day prior to beginning of
performance under this Agreement. Endorsements shall be executed on City's
appropriate standard forms entitled "Additional Insured Endorsement", or a substantially
similar form which the City has agreed in writing to accept.
D. Self Insured Retention/Deductibles. All policies required by this Agreement
shall allow City, as additional insured, to satisfy the self-insured retention ("SIR") and/or
deductible of the policy in lieu of the Owner (as the named insured) should Owner fail to
pay the SIR or deductible requirements. The amount of the SIR or deductible shall be
subject to the approval of the City Attorney and the Finance Director. Owner
understands and agrees that satisfaction of this requirement is an express condition
precedent to the effectiveness of this Agreement. Failure by Owner as primary insured to
pay its SIR or deductible constitutes a material breach of this Agreement. Should City
pay the SIR or deductible on Owner's behalf upon the Owner's failure or refusal to do so
in order to secure defense and indemnification as an additional insured under the policy,
City may include such amounts as damages in any action against Owner for breach of
this Agreement in addition to any other damages incurred by City due to the breach.
10. Confidentiality. Consultant in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
11. Ownership of Materials. All materials provided by Consultant in the
performance of this Agreement shall be and remain the property of City without
restriction or limitation upon its use or dissemination by City. Consultant may, however,
make and retain such copies of said documents and materials as Consultant may desire.
12. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
4
would conflict in any manner with the performance of its services pursuant to this
Agreement.
B. Consultant covenants not to give or receive any compensation,
monetary or otherwise, to or from the ultimate vendor(s) of hardware or software to City
as a result of the performance of this Agreement. Consultant's covenant under this
section shall survive the termination of this Agreement.
13. Termination. Either party may terminate this Agreement with or without
cause upon fifteen (15) days'. written notice to the other party. However, Consultant shall
not terminate this Agreement during the provision of services on a particular project. The
effective date of termination shall be upon the date specified in the notice of termination,
or, in the event no date is specified, upon the fifteenth (15th) day following delivery of the
notice. In the event of such termination, City agrees to pay Consultant for services
satisfactorily rendered prior to the effective date of termination. Immediately upon
receiving written notice of termination, Consultant shall discontinue performing services.
14. Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consultant or under it
supervision, and all personnel engaged in the work shall be qualified to perform such
services. Consultant reserves the 'right to determine the assignment of its own
employees to the performance of Consultant's services under this Agreement, but City
reserves the right, for good cause, to require Consultant to exclude any employee from
performing services on City's premises.
15. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion,
sex, marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees
placed by or on behalf of Consultant state either that it is an equal opportunity employer
or that all qualified applicants will receive consideration for employment without regard to
race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
5
16. Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without the
prior written consent of City, and any attempt by Consultant to so assign this Agreement
or any rights, duties, or obligations arising hereunder shall be void and of no effect.
17. Compliance with Laws. Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
18. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall the
making by City of any payment to Consultant constitute or be construed as a waiver by
City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
19. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
20. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, shall be referred by the parties
hereto for mediation. A third party, neutral mediation service shall be selected, as agreed
upon by the parties and the costs and expenses thereof shall be borne equally by the
parties hereto. In the event the parties are unable to mutually agree upon the mediator
to be selected hereunder, the City Council shall select such a neutral, third party
mediation service and the City Council's decision shall be final. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that referral of
any such dispute or controversy, and mutual good faith efforts to resolve the same
thereby, shall be conditions precedent to the institution of any action or proceeding,
whether at law or in equity with respect to any such dispute or controversy.
21. Notices. Any notices, bills, invoices, or reports required by this Agreement
shall be deemed received on (a) the day of delivery if delivered by hand during regular
business hours or by facsimile before or during regular business hours; or (b) on the third
business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
22. Governing Law. This Contract shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
6
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
24. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended, nor
any provision or breach hereof waived, except in a writing signed by the parties which
expressly refers to this Agreement. Amendments on behalf of the City will only be valid if
signed by the City Manager or the Mayor and attested by the City Clerk.
25. Exhibits. All exhibits referred to in this Agreement are incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"City"
ATTEST: CITY OF DIAMOND BAR
By: By:
Tommye Cribbins, City Clerk Steve Tye, Mayor
Approved as to form:
By:
City Attorney
"CONSULTANT"
By:
Its:
PROPOSALS AVAILABLE FOR REVIEW IN THE CITY CLERK'S OFFICE.
Agenda # 6. 10
Meeting Date: Oct 18, 2011
CITY COUNCIL AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Man
TITLE: APPROVE CONTRACT INCREAS WITH FREEWAY ELECTRIC FOR
THE TRAFFIC SIGNAL INSTALLATION AT BREA CANYON CUTOFF
ROAD AND THE SOUTHBOUND STATE ROUTE 57 FREEWAY RAMP
IN THE AMOUNT OF $6,000 FOR A TOTAL AUTHORIZATION
AMOUNT OF $176,515
RECOMMENDATION:
Approve.
FINANCIAL IMPACT:
As part of the Fiscal Year 2011/2012 Budget, $250,000 was appropriated for the traffic
signal installation at Brea Canyon Cutoff Road and the Southbound State Route 57
Freeway Ramp. These funds are developer fees that were collected as traffic
mitigations from prior development projects so their use is limited to previously identified
traffic improvements. The previously authorized contract amount was $170,515
(including a 10% contingency amount of $15,500) and there is sufficient budget to cover
the requested contract increase. The total project cost (including contract increase) is
detailed below:
Design Construction Contract Construction Caltrans SCE Total
(including Increase Management Permit Fees
contingency)
$3,3250) $170,515 $6,000 $2,50011) $16,500 $5,000 $203,840
(1) Amount does not include original design costs that were previously paid to Warren C. Siecke under separate contract in the
amount of$6,175
(2) Original Encumbered Amount was$10,000 so net savings of$7,500 achieved
DISCUSSION:
The traffic signal at Brea Canyon Cutoff Road and the Southbound State Route 57
Freeway Ramp was recently completed and placed in operation. This traffic signal was
funded by local developer fees but it will be owned and operated by Caltrans. In order
to obtain Caltrans approval to construct, permit fees were incurred that were originally
planned to be paid from the City direct to Caltrans. However, Caltrans would not allow
City to pay permit fees but instead required the contractor as the permitted entity to pay
the permit fees in order to maintain one responsible party. In order to accommodate
Caltrans, the City's contractor, Freeway Electric, agreed to pay the permit fees and to
be reimbursed by the City. The actual project contingencies consisted of additional
potholing and remobilization efforts amounting to approximately $5,000. After
accounting for the project contingencies, the remaining $10,500 of contingency was
applied towards reimbursement to Freeway Electric for the Caltrans permit fees. Thus,
an additional contract amount of $6,000 is necessary in order to fully reimburse
Freeway Electric for the Caltrans permit fee amount of $16,500. It should be noted that
cost savings in the amount of $7,500 were achieved in construction management
services since Caltrans was able to provide daily inspection services for the work.
PREPARED BY:
Rick Yee, Senior Civil Engineer Date Prepared: October 12, 2011
REVIEWED BY:
David G. Lir, Director of Public Works
2
Agenda # 6. 11
Meeting Date: Oct. 18, 2011
or
all
CITY COUNCIL Iv AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Ma a
TITLE: ADOPT RESOLUTION 2011-XX: A RESOLUTION OF THE CITY
COUNCIL OF CITY OF DIAMOND BAR RATIFYING AND
RECONFIRMING THE DESIGN GUIDELINES APPLICABLE TO THE
GATEWAY CORPORATE CENTER AND AMENDING A PORTION OF
RESOLUTION NO. 89-104 TO ALLOW ON STREET PARKING OF
VEHICLES ALONG PORTIONS OF BRIDGE GATE DRIVE AND
VALLEY VISTA DRIVE
RECOMMENDATION:
Adopt.
FINANCIAL IMPACT:
There will be costs related to the removal and installation of appropriate signage and
red curb which can be accommodated by the Public Works Department maintenance
budget.
BACKGROUND/DISCUSSION:
The Gateway Corporate Center Association has identified a concern with the lack of
adequate parking for its tenants along Bridge Gate Drive and Valley Vista Drive. The
Association has informed the City that both existing tenants and potential tenants have
commented on the insufficiency of parking spaces. As an example, QTC, a provider of
government outsourced occupational health and disability exam services occupies 4
buildings and is in the process of acquiring additional lease space on Bridge Gate Drive
to accommodate near term growth. However, in order for QTC to meet their parking
needs, they identified a need for on street parking to meet the demands of their
expected employee count. Since parking has become such a critical issue to the
tenants and potential tenants of the Gateway Corporate Center, the Board of Directors
of the Gateway Corporate Center Association, at their June 24, 2011 meeting,
unanimously approved a motion to amend the Gateway Corporate Center Design
Guidelines to allow for street parking on Valley Vista Drive and Bridge Gate Drive in
areas as permitted by the City during the hours of 7:00 AM to 10:00 PM.
Public Works staff has conducted field assessments with the assistance of our traffic
engineering consultant and determined that on street parking can be accommodated
within specified limits along Bridge Gate Drive and Valley Vista Drive (see attachment).
Parking will only be allowed along street frontage that contains existing sidewalk. In
addition, parking will be further restricted in all'areas that present visibility hazards and
in areas adjacent to fire hydrants. After accounting for the aforementioned parking
restrictions, approximately 90 parking spaces will be available on these streets. Lastly,
a half day parking prohibition will be enacted on Thursdays between the hours of 7:30
AM to 1:00 PM to accommodate street sweeping operations.
PREPARED BY:
Rick Yee, Senior Civil Engineer Date Prepared: October 11, 2011
REVIEWED BY:
David G. Liu, Director of Public Works
Attachment: Resolution 2011-xx
RESOLUTION NO. 2011-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF DIAMOND BAR RATIFYING AND RECONFIRMING THE
DESIGN GUIDELINES APPLICABLE TO THE GATEWAY
CORPORATE CENTER AND AMENDING A PORTION OF
RESOLUTION NO. 89-104 TO ALLOW ON STREET
PARKING OF VEHICLES ALONG PORTIONS OF
BRIDGE GATE DRIVE AND VALLEY VISTA DRIVE
A. Recitals.
(i) On December 16, 1981, ARCIERO & SONS, INC., a California
Corporation ("Arciero" hereinafter) and the DIAMOND BAR DEVELOPMENT
CORPORATION, a California Corporation ("Development Corporation" hereinafter)
entered into that certain Agreement of Protective Covenants, Conditions and
Restrictions ("Agreement" hereinafter) pertaining to that certain real property in the
City of Diamond Bar commonly referred to as the Gateway Corporate Center -
Diamond Bar ("Gateway" hereinafter) and legally described as Lots 1 through 24,
inclusive, of Tract Map No. 39679, as recorded in Book 1083, pages 14 through 21,
inclusive, of Tract Maps in the Office of the County Recorder of Los Angeles County.
(ii) On June 21, 1985, Development Corporation and Arciero
executed that certain First Amendment to the agreement, thereby modifying the provisions
of the agreement pertaining to an architectural committee.
(iii) On or about June 28, 1985, the Los Angeles County Board of
Supervisors adopted and approved a Unilateral Contract Imposing Land Use Restrictions
pertaining to the Gateway property and caused to be recorded said Unilateral Contract
and Development Standards and Landscape Criteria appended thereto concerning
Gateway in furtherance of Los Angeles County Zoning Ordinance No. 85-00992
adopted June 6, 1985.
(iv) On April 9, 1987, TRANSAMERICA DEVELOPMENT
COMPANY, successor in interest to Development Corporation ("Transamerica"
hereinafter) and DIAMOND BAR BUSINESS ASSOCIATES successor to Arciero
("Business Associates" hereinafter) executed a Second Amendment to the Agreement
thereby amending certain parking standards contained in the Agreement.
Transamerica and Business Associates, on May 16, 1988, amended the Agreement
pertaining to certain specified permitted uses within Gateway.
(v) On April 13, 1987, Business Associates recorded a Master
Declaration of Covenants, Conditions and Restrictions ("Master Declaration"
hereinafter) pertaining to Gateway, thereby supplementing and amending
the Agreement. Said Master Declaration specifically adopted and approved,
in Section 5.3(a) thereof, certain architectural design criteria and specifications
for Gateway described as "Gateway Corporate Center - Diamond Bar Design
Guidelines" prepared by Hill Pinkert Architects, Inc., and dated October, 1986
("Design Guidelines" hereinafter). Said Master Declaration was approved and
recorded in accordance with the procedures and requirements of the
Agreement. Recordation of the Master Declaration thereby substituted the
Design Guidelines referred to therein for the Development Standards and Landscape
Criteria identified in paragraph A (iii), above.
(vi) Pursuant to Section 5.3 of the Master Declarations, the
Design Guidelines were amended in July, 1988.
(vii) On October 17, 1989, the City Council adopted Resolution No. 89-
104 which ratified and reaffirmed the Design Guidelines for Gateway Corporate
Center, Diamond Bar, dated October, 1986, and amended July, 1988. The City
Council determined that the Design Guidelines, dated October, 1986 and amended
July, 1988, were to become the Design Guidelines for the Gateway Corporate Center
and were duly and validly approved pursuant to the provisions of the Master
2
Declaration of Covenants, Conditions and Restrictions and the Agreement.
(v i i i) On June 24, 2011, the Board of Directors of the Gateway Corporate
Center Association amended the Design Guidelines for Gateway Corporate Center, dated
October 1986, and amended July 1988 to allow for street parking on portions of Valley
Vista Drive and Bridgegate Drive on the sides adjacent to the sidewalk during business
hours from 7:00 a.m. to 10:00 p.m. (See Exhibit A — Valley Vista Drive/Bridgegate Drive
On-Street Parking Exhibit)
(ix) It is the purpose of this Resolution to reconfirm and ratify the
Design Guidelines,. as heretofore amended, in order to insure that the same are utilized
and implemented with respect to property developed in Gateway.
W All legal prerequisites to the adoption of this Resolution have
occurred.
B. Resolution.
NOW, THEREFORE, the City Council of the City of Diamond Bar does
hereby find, determine and resolve as follows:
1. In all respects is set forth in the Recitals, Part A, of this Resolution.
2 . The City Council hereby ratifies and reaffirms the Design
Guidelines for Gateway Corporate Center, Diamond Bar, dated October 1986, and
amended July 1988 and subsequently amended June 24, 2011 to allow for street parking
on portions of Valley Vista Drive and Bridgegate Drive on the sides adjacent to the
sidewalk during business hours from 7:00 a.m. to 10:00 p.m. The City Council hereby
specifically finds and determines that the Design Guidelines, dated October 1986 and
amended July 1988 and subsequently amended June 24, 2011, are the Design
Guidelines for the Gateway Corporate Center and were duly and validly approved
pursuant to the provisions of the Master Declaration of Covenants, Conditions and
Restrictions and the Agreement.
3. The City Council hereby specifically finds and determines that
the Design Guidelines, including, but not limited to, parking requirements and design
3
criteria contained therein shall be, and the same hereby are declared to be, applicable
to all projects in Gateway and City staff, consultants and developers of projects
within Gateway hereby are directed to implement the same.
4. The allowance of street parking on portions of Valley Vista Drive
and Bridgegate Drive, as provided herein, shall not apply until the City places
appropriate signs giving notice. Street parking on Valley Vista Drive and Bridgegate
Drive shall be prohibited on Thursdays between 7:30 AM and 1:00 PM to provide for
street sweeping operations. The City Council hereby authorizes and directs the City
Engineer to cause appropriate signage to be posted in a manner that provides
adequate notice to persons parking on the affected streets (See Exhibit A — Valley
Vista/Bridgegate Drive On-Street Parking Exhibit).
5. This resolution shall be considered to be incorporated as a part
of Resolution 89-104 for purposes of the definition of the term "Gateway Corporate
Center" contained in Municipal Code Section 22.80.020.
6. The City Clerk shall keep and maintain a full, true and correct copy of
the Design Guidelines available for public use.
7 . Business Associates shall provide to the City of Diamond Bar any
proposed amendments, modifications or changes to the Design Guidelines and/or the
Master Declaration.
8. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 18th,day of October,201 1.
Steve Tye, Mayor
1, TOMMYE CRIBBINS, City Clerk of the City of Diamond Bar do hereby certify that the
foregoing Resolution was passed, adopted and approved at a regular meeting of the
City Council of the City of Diamond Bar held on the 18th day of October, 2011 by the
following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
CITY CLERK OF THE
CITY OF DIAMOND BAR
EXHIBIT A
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Agenda # 6. 12
Meeting Date: October 18. 2011
i
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`INII � ue
CITY COUNCIL
V AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Mana
TITLE: AUTHORIZE CITY MANAGER T CONTINUE FINANCE DEPARTMENT CONSULTING
SERVICES WITH GLENN STEINBRINK NOT TO EXCEED A TOTAL COST OF $75,000.
RECOMMENDATION:
Approve.
FINANCIAL IMPACT:
None. The total cost will be offset by salary savings realized from the vacant Director of Finance position. The
request for City Council authorization is in the amount of $50,000 and the total cost of services not to exceed
$75,000, includes the City Manager's authority of$25,000.
BACKGROUND/DISCUSSION:
In May 2011, upon review and content approval by the City Attorney, a Consulting Services Agreement with
Mr. Glenn Steinbrink was executed under City Manager authority. The City retained the direct services of Mr.
Glenn Steinbrink to continue to provide interim Director of Finance services until a new Director was hired.
We are in the final stages of the process for a new Director and anticipate the arrival of the Finance Director in
mid-November. Mr. Steinbrink's services will continue to be necessary to aid in bringing the new Director up to
speed during the transition period. Following the transition period, Mr. Steinbrink's services will be utilized as
needed for other finance projects.
Therefore, it is recommended that the City Council authorize the City Manager to continue consulting services
with Mr. Glenn Steinbrink to provide on-going consulting services not to exceed a total amount of$75,000.
PREPARED BY:
Vicki Cross, Human Resources Manager
REV Y:
David e, Assis nt City Manager
Attachment: Consulting Services Agreement—Glenn Steinbrink
CONSULTING SERVICES AGREEMENT
With
GLENN STEINBRINK
This Agreement is made on this 31st day of May, 2011 at Diamond Bar, California, by and between
the City of Diamond Bar (hereinafter referred to as the "CITY") and Glenn Steinbrink (hereinafter
referred'to as the "CONSULTANT").
RECITALS
A. City seeks to engage Contractor on an interim basis to serve as Finance Director for the City of
Diamond Bar.
B. Contractor is fully qualified by virtue of his extensive experience in municipal finance and his
familiarity with the City of Diamond Bar to perform these services for City as an independent
contractor.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained, the parties agree as follows:
1. DUTIES. City hereby agrees to engage the services of Contractor, to serve as Interim
Finance Director to perform Director of Finance duties and responsibilities, special financial
projects, and to perform such other legally permissible and proper duties and functions as the
City Manager may assign. Contractor' shall perform the services required -under this
Agreement during normal City operating hours on a part-time 20 hour per week work
schedule, and further, shall be available for attendance at meetings during other hours as may
be necessary. City and Contractor further agree that Contractor will not exceed more than
960 hours of contract services during a Fiscal Year (July through June) for the City of
Diamond Bar or any other CalPERS contract employer.
2. TERM. The term of this contract shall commence upon execution by both parties and
continue until terminated in accordance with sections below,
a. Termination for Convenience. Either party may terminate this Agreement without cause
and in its sole discretion at any time by giving the other party fifteen (15) days' written
notice of such termination. In the event of such termination, the CONSULTANT shall cease
services as of the date of termination and shall be compensated for services performed to
the CITY's satisfaction up to the date of termination.
b. Termination for Cause. All terms, provisions, and specifications of this Agreement are
material and binding, and failure,to perform any material portion of the work described
herein shall be considered a breach of this Agreement. Should the Agreement be
breached in any manner, the CITY may, at its option, terminate the Agreement not less
than five (5) days after written notification is received by the CONSULTANT to remedy the
violation within the stated time or within any other time period agreed to by the parties. In
the event of such termination, the CONSULTANT shall be responsible for any additional
costs incurred by the CITY in securing the services from another contractor.
Page 1 of 6
3. CONTRACT ADMINISTRATION.
a. The CITY's Representative. Unless otherwise designated in writing, James DeStefano,
City Manager shall serve as the CITY's representative for the administration of this contract.
All activities performed by the CONSULTANT shall be coordinated with this person.
b. Responsibilities of the CITY. The CITY shall provide all relevant documentation in its
possession to the CONSULTANT upon request in order to minimize duplication of efforts.
The CITY's staff shall work with the CONSULTANT as necessary to facilitate performance
of the services.
4. COMPENSATION. City agrees to pay Contractor for his services rendered pursuant hereto
compensation of $80.00 per hour. Such payment shall be processed upon presentation and
verification of billable hours to the City Manager.
5. BENEFITS. Contractor hereby waives all benefits provided to City employees, including
retirement contribution, health/medical insurance, dental insurance, life and disability
insurance, sick leave, vacation, unemployment insurance and similar benefits.
6. GENERAL EXPENSES. City recognizes that certain expenses of a non-personal and
generally job affiliated nature may be incurred by Contractor and hereby agrees to reimburse
Contractor said necessary and reasonable expenses as are submitted to the City Manager for
approval based upon expense receipts, statements, or personal affidavits, and audit thereof in
like manner as other demands against the City. Out-of-town travel and conference/training
attendance for which expense reimbursement will be sought shall be subject to advance
approval by the City Manager.
7. SERVICE RELATED INJURY INCOME PROTECTION. City and Contractor agree that
Contractor is not an employee of the City and is not covered by the City's worker's
compensation insurance policy.
8. CONTRACTOR'S RESPONSIBILITY FOR CONTRIBUTIONS, PAYMENTS OR
WITHHOLDING. Contractor shall be solely responsible for all contributions, payments, or
withholdings normally made on behalf of an employee including but not limited to, state and
federal income taxes, federal social security contributions, California State disability insurance
taxes, and unemployment insurance contributions. City shall issue Contractor a Form 1099 in
connection with the compensation paid hereunder, and Contractor shall pay all required taxes
on amounts paid hereunder. Contractor shall indemnify and hold harmless City, its officers,
agents and employees from and against all taxes, penalties, assessments and interest
asserted against City by reason of the independent contractor relationship created by this
Agreement, or by virtue of nonpayment by Contractor of legally due taxes. In the event the
City is audited by any federal or State agency regarding the independent contractor status of
the Contractor and the audit fails to sustain the validity of a wholly independent contractor
relationship, the Contractor agrees to reimburse the City for all costs, including accounting
and attorneys' fees, arising out of such audit and,any appeals related thereto.
Page 2 of 6
9. RELATIONSHIP BET,,,.,:-EN THE PARTIES. The p artieb to this Agreement agree that
Contractor is an independent contractor in business for himself, and that City is a client for
whom Contractor provides professional services.
10. INSURANCE. Contractor shall at his own cost and expense procure and maintain in effect a
policy of automobile insurance for use of his private vehicle with not less than
$100,000/$300,000 coverage, shall name the City, its officers and employees, as additional
insureds, and shall not be subject to cancellation, modification or lapse without City first
receiving thirty (30) days advance written notice. This policy shall be considered primary
insurance as regards the City and its officers,,agents and employees.
a. Failure to Procure Insurance. Failure on the part of the CONSULTANT to procure or
maintain required insurance shall constitute a material breach of contract under which the
CITY may terminate this Agreement pursuant to Section 2.b. above.
11.. LIABILITY. City agrees to indemnify, hold harmless and defend at its expense Contractor
from any .and all claims, actions, losses, damages, charges, expenses or attorneys fees to
which Contractor may be subject to arising out of, or resulting from, the performance of this
contract and Contractor's duties hereunder as Interim Finance Director. Notwithstanding the
foregoing, the City's obligation under this Section 11 shall not apply to any punitive or
exemplary damages which may be awarded by a court against Contractor; nor shall this
paragraph apply to liability.incurred by Contractor for actions outside the scope of his services
or which result from wrongful or malicious conduct or gross negligence, or through the use of
any personal vehicle, all as to which Contractor shall indemnify and hold City, its officers,
agents and employees harmless.
12. CONFLICT OF INTEREST. Contractor affirms and warrants that he has no financial,
contractual or other interest or obligation that conflicts with or is harmful to the performance of
his obligations under this Agreement. Contractor shall not during the term of this Agreement
knowingly obtain such an interest or incur such an obligation.
13, ENTIRE AGREEMENT. This Agreement supersedes any and all other agreements, written or
oral, between the parties, and contains all of the covenants and agreements between the
parties. Each party acknowledges that no promises, representations, inducements or
agreements, oral or otherwise, have been 'made by any party, or anyone acting on behalf of
any party, which is not embodied herein. No modification to this Agreement shall be effective
unless reduced to writing and signed by both parties.
, 14. GENERAL PROVISIONS.
a. The text herein shall constitute the entire agreement between the parties.
b. This agreement shall be binding upon and inure to the benefit of the heirs-at-law and
executors of Contractor.
c. If any provision or any portion hereof contained in this agreement is held to be
unconstitutional, invalid or unenforceable the remainder of this agreement or portion thereof
shall be deemed severable and shall not be affected and shall remain in full force and
effect.
Page 3 of 6
d. The City is entering into this Agreement by virtue of the professional reputation, experience
and competence of Contractor. Hence, the obligations of Contractor under this Agreement
shall not be assigned or subcontracted, nor shall the rights be delegated without prior
written approval of the City Manager.
e. The Contractor shall comply with and adhere to all City policies, rules and regulations
including but not limited to its policies regarding non-discrimination and sexual harassment.
15. RECORDS AND AUDITS. The CONSULTANT shall maintain accounts and records,
including personnel, property, and financial records, adequate to identify and account for all
costs pertaining to this Agreement and such other records as may be deemed necessary by
the CITY or any authorized representative. All records shall be made available at the request
of the CITY, with reasonable notice, during regular business hours, and shall be retained by
the CONSULTANT for a period of three years after the expiration of this Agreement.
16. OWNERSHIP OF DOCUMENTS. It is understood and agreed that the CITY shall own all
documents and other work product of the CONSULTANT, except the CONSULTANT's notes
and work papers, which pertain.to the work performed under this Agreement. The CITY shall
have the sole right to use such materials in its discretion and without further compensation to
the CONSULTANT, but any re-use of such documents by the CITY on any other project
without prior written consent of the CONSULTANT shall be at the sole risk of the CITY. The
CONSULTANT shall at its sole expense provide all such documents to the CITY upon
request.
17. NOTICE. All Notices permitted or required under this Agreement shall be in writing, and shall
be deemed made when delivered to the applicable party's representative as provided in this
Agreement. Additionally, such notices may be given to the respective parties at the following
addresses,or at such other addresses as the parties may provide in writing for this purpose.
uch notices shall be deemed made when personally delivered or when mailed forty-eight (48)
hours after deposit in the U.S. mail, first-class postage prepaid, and addressed to the party at
its applicable address.
City of Diamond Bar Glenn Steinbrink
James DeStefano, City Manager 14835 Foxglove Drive
21825 Copley Drive Chino Hills, CA 91709
Diamond Bar, CA 91765
18. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California.
19. ENTIRE AGREEMENT; MODIFICATION. This Agreement supersedes any and all other
agreements, either oral or written, between the parties, and contains all of the covenants and
agreements between the parties. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, oral or otherwise, have been made
by any party, or anyone acting on behalf of any party, which is not embodied herein. Any
agreement, statement, or promise not contained in the Agreement, and any modification to the
Agreement, will be effective only if signed by both parties.
Page 4 of 6
20. WAIVER. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver of a subsequent breach of the same or any other provision under this
agreement. Payment of any invoice by the CITY shall not constitute a waiver of the CITY's
right to obtain correction or replacement of any defective or noncompliant work product.
21. EXECUTION. This Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument and shall become binding upon the parties when at
least one copy hereof shall have been signed by both parties hereto. . In approving this
Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
22. AUTHORITY TO ENTER AGREEMENT. The CONSULTANT has all requisite power and
authority to conduct its business and to execute, deliver, and perform this Agreement. Each
party warrants that the individuals Who have signed this. Agreement have the legal power,
right, and authority to make this Agreement and to bind each respective party.
Page 5 of 6
IN WITNESS WHEREOF, the parties have executed this Agreement the 31St day of May, 2011.
ATTEST: CITY OF DIAMOND BAR
U r '
Temmye C ibbins, City Clerk Jamk'DeStefano, City Manager
APPROVED AS 'TO FORM:
y orney
CONSULTANT
Glenn Steinbrink
Page 6of6
Agenda # 6. 13
Meeting Date: October 18, 2011
...................
............ ............ .......................
CITY COUNCIL AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City M T
TITLE: Authorize the City Manger to pu chase various telecommunication and security
ou t
equipment from CDWG inirtana ount not to exceed $290,000 which includes all
required training and professional design services for installation; and appropriate
$90,000 from COPS funds.
RECOMMENDATION:
Approve.
BUDGET/FINANCIAL IMPACT:
There are sufficient funds in the FY 2011-12 City Hall project budget for the purchase of the Phone
System, Local Area Network, and the Digital Media System. The Public Safety communication and
security system are eligible to be funded by COPS funds. Since the FY 2011-12 budget doesn't
include any appropriation of COPS funds, it is recommended that the Council appropriate $90,000 for
the public safety equipment.
DISCUSSION:
The City is currently constructing a new City Hall which is scheduled to open to the public and provide
services,to the community beginning January 3, 2012. The new City Hall facility requires various
equipment to enable employees to conduct City business and provide service to the community such
as a Phone System, Local Area Network (LAN), Digital Signage System, and a Security Camera
System.
While City Hall currently has a phone system and LAN, these existing systems have outlived their
useful lives and are not appropriate for re-use in the new building. A more detailed description of the
need to replace these systems is shown below:
1
PHONE SYSTEM ($95,500)
The existing phone system is over 8 years old and the manufacture was purchased by another firm a
number of years ago, and they no longer sell this old model system, nor provide software updates,
nor support critical software for the system. The City has used a local reseller with access to used
parts to keep the system hardware up and running but that has become increasingly difficult and cost
prohibitive to continue. For these reasons it is recommended that the phone system be replaced in
the new facility. City staff did an exhaustive review of phone systems that are compatible with the
LAN and other City systems.
Following this review and analysis, it was determined that CISCO is the most appropriate
manufacturer for our equipment needs. The City received four bids from CISCO authorized vendors
for the equipment and professional services required for design and implementation of the new phone
system. The lowest responsible bidder was CDWG.
LOCAL AREA NETWORK (LAN) ($93,000)
As indicated in the FY 11/12 budget discussion, several existing pieces of network equipment have
outlived their useful live and have a high likelihood of failure in the next 6 to 12 months. It is
recommended that this old equipment be replaced. All other existing LAN equipment will be relocated
and used in the new facility. In order to leverage the City's existing infrastructure and equipment and
eliminate any potential future technical compatibility issues, City staff has determined it is appropriate
to continue to purchase and install CISCO network equipment. Again, after receiving bids for this
equipment, CDWG was the lowest responsible bidder.
DIGITAL SIGNAGE ($30,000) AND SECURITY SYSTEM ($88,000)
With the relocation into the new facility, there is a need to provide various systems that are not
currently owned or operated by the City. For example, there is no digital signage system nor a city-
owned security camera system in the existing facility. It is recommended a Digital Signage System
be installed in the new facility to provide visitors and customers with City news and information, and
direct them to the appropriate location for City services. City staff solicited bids for a Digital Signage
System and again CDWG was the lowest responsible bidder.
In addition installation of a security system is recommended for the safety of the facility, grounds,
visitors and employees. The system will include a direct radio connection to the LA County Sheriff's
Department (LASD) through the City's Emergency Operations Center. However, the communication
equipment is still being reviewed and designed by LASD representatives and is not recommended for
purchase at this time. City staff is recommending the purchase and installation of several security
cameras as part of the system. Staff received bids for the various cameras and again CDWG was
the lowest responsible bidder ($63,000)
So while the EOC communications system is still currently being designed by LASD, it is estimated
that the cost of this system will be $25,000. Staff is recommending Council appropriate COPS funds
at this time but we are not currently purchasing this equipment. It is recommended that the Council
2
appropriate $90,000 from COPS funds for the purchase of the security system and a $2,000
contingency for future unanticipated costs.
CONTINGECY
The above purchases, while all being purchase through a single vendor, represent multiple projects of
varying complexity and require the use of professional design services. The cost of the design
services is included in the amount of each project. However, staff is recommending an $8,500
contingency for use amongst and across any of the above projects as deemed necessary by the City
Manager.
SUMMARY
It is recommended that the City Council authorize these expenditures, appropriations, and approve
the disposal of the existing surplus property per City policy.
Prepared by:
Ken Desforges, Director Information Systems
Reviewed
David Doyle, ssA'Va)Wity Manager
3
Agenda # 6.14
Meeting Date: October 18, 2011
CITY COUNCIL AGENDA REPORT
1W,
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Man
TITLE: Approve a contract with Time Wqarer Cable to relocate existing Fiber and COAX cable
from 21825 Copley Drive to 21810 Copley Drive in the amount of$27,247, and
authorize the City Manager to execute change orders, as required, up to $5,000 for a
total authorization of$32,247.
RECOMMENDATION:
Approve.
FINANCIAL IMPACT:
The adopted FY 2011-2012 budget included an appropriation for the construction of new City Hall.
The proposed contract and contingency amount ($27,247 + $5,000) exceeds the original fiber and
cable relocation estimate by $7,247. There are sufficient funds already appropriated for this purchase
as a result of cost savings from other components of the City Hall construction budget.
BACKGROUND:
City Hall is currently located at 21825 Copley Drive within the SCAQMD Government Center. The
City has existing fiber connections between 21825 Copley Drive and the Diamond Bar Center located
at 1600 Grand Avenue. These strands of fiber are City owned but exist within the fiber infrastructure
of Time Warner Cable. The City has existing COAX cable service to 21825 Copley Drive, which was
installed as part of the cable franchise agreement.
Time Warner will relocate the cable and fiber at a cost of$27,247. The cost proposal is based upon
the use of conduit that is part of the Traffic Management System relocation. The components of the
relocation include the following:
1.) One fiber connection between City owned property at 21810 Copley Drive and
1600 Grand Avenue to connect the two facilities for all LAN/WAN and voice services.
2.) One Fiber connection between 21810 Copley Drive and the SCAQMD to connect
the two sites for City broadcast retransmissions
3.) One COAX connection between 21810 Copley Drive and the SCAQMD to provide
broadcast distribution.
4.) Construction to commence approximately 3 weeks after receipt of a Notice To
Proceed.
It is recommended that the City Council authorize these appropriations and expenditures. If approved,
city staff will complete a contract with Time Warner and commence the project.
Reviewed by:
David Doyle, AsisisIaWtity Manager
Attachment: Time Warner Cable Statement of Work and cost proposal received October 12, 2011.
'
��0�� WARNER CABLE� ||�/�� ���U���{� ���V�K���
THE POWER OF YOUnn
Ken Desforges
Director ofInformation Services
City ofDiamond Bar
McDesforges.
Here is the SOW for the relocation of the fiber and coax from 21825 Copley Drive to 21810
Copley Drive.
1\ Time Warner Cable will relocate the fiber that feeds 1600 G Grand Ave from its current
location et21B25Copley Drive bothe new location.located at2181OCopley Drive hothe
K8POElocation and terminate the fiber connection.
2\ Time Warner Cable will connect via fiber 21825 Copley Drive A\QK0CA from the 70POE
room to the now location located at 21810 Copley Drive to the yNPOE location and
terminate the fiber connection.
3) Time Warner Cable will provide a coax feed into the location at 21810 Copley Drive to a
location of your choice (ounanUy the K8POE room). This will be capable of provide
broadcast distribution throughout the new City Hall.
The bzba| cost for this work will be $27.247.00. Please see the cost ono|yo|a that was forward to
you for the break down in costs. Once Time Warner receives the check this will serve as an
agreement inthe scope ofwork and pricing.
Shawn Boykin
Construction Supervisor
Time Warner Cable
` .
Agenda # 8 . 1
c T Meeting Date: October 18, 2011
CIA I
CITY COUNCIL AGENDA REPORT
`hrORPOR��9
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Mana
TITLE: Adopt Resolution No. 2011-XX pproving documents related to the
conversion of the City of Diamond Bar Public Financing Authority Variable
Rate Lease Revenue Bonds, Series 2002A from a variable interest rate to
a fixed interest rate, and authorizing and directing certain actions in
connection therewith
RECOMMENDATION:
Adopt
FINANCIAL SUMMARY:
The "average" interest rate on the Bonds since issuance is approximately 1.77%;
however the average "all in cost" on the Bonds through 6/30/11 (including all bank,
remarketing and interest rate cap fees) is approximately 3.10%. Conversion to fixed
rate will initially result in higher annual all in costs than the current variable rate.
However, long term rates are extremely attractive and are at or close to historic lows.
Conversion to a fixed rate provides budget certainty, and eliminates interest rate risk
and volatility for the remaining 22 years that the debt will be outstanding. It also
eliminates renewal risk on future Bank letters of credit which are required to remarket
the existing variable interest rate Bonds. The conversion to fixed rate also eliminates
the existing costs associated with the Letter of Credit fee, remarketing fees, and the
interest rate cap. Costs to convert to a fixed rate will be paid out of remarketing
proceeds. Such costs are estimated not to exceed $150,000.
BACKGROUND:
At the August 16, 2011 Study Session City Council discussed the policy decision of
whether to keep the Bonds issued in December of 2002 to finance the Diamond Bar
Center in a variable rate mode supported by the direct-pay letter of credit issued by
Union Bank or consent to a fixed rate conversion of the Bonds. City Staff and the City's
Financial Advisor, Fieldman, Rolapp & Associates, Inc., provided the City Council with
the background of the performance of the Bonds since 2002 and the costs associated
with renewing the direct-pay letter of credit compared to the projected costs of a fixed
rate conversion of the Bonds. The City Council was also provided an overview of the
potential changes that will be implemented in 2015 due to new financial regulations and
the impact it may have on new Letters of Credit in the future and an overview of the
near historic low in long-term fixed interest rates. Based upon the information
presented and the recommendation of City Staff and its Financial Advisor, the City
Council directed staff to proceed with a fixed rate conversion of the Bonds in order to
lock in the low fixed interest rates and eliminate the City's exposure to variable rate and
the uncertainty of securing a direct-pay letter of credit in the future.
DISCUSSION
Approval of the Resolution No. 2011-XX authorizes the City Manager or his designee to
take the necessary actions to convert the current variable interest rate on the Bonds to
a fixed rate. The Resolution approves the form of a Remarketing Agreement by and
among the City, the Diamond Bar Public Financing Authority and a Remarketing Agent
to be designated by the City Manager. Pursuant to the Remarketing Agreement, the
Remarketing Agent will price and sell the Bonds at a fixed rate and deliver funds to pay
off the Union Bank Letter of Credit in full on the mandatory tender date for the variable
rate Bonds on December 1, 2011. The Resolution also approves the form of a
Preliminary Reoffering Memorandum pursuant to which the Bonds will be marketed to
potential investors. The Preliminary Reoffering Memorandum describes the terms of
the fixed rate Bonds, the sources of payment for the Bonds and the City's General
Fund. The Preliminary Reoffering Memorandum is subject to the antifraud provisions of
the federal securities laws and Council Members are encouraged to review it and notify
staff of any inaccuracies or omissions of material facts related to the City and its
finances. The Resolution also approves Amendment No.1 to the Lease Agreement, a
Continuing Disclosure Certificate (pursuant to which the City will covenant to report to
investors on annual basis certain financial information and to provide notice upon the
occurrence of certain listed events), and financial services contracts with Fieldman
Rolapp & Associates, Inc., as Financial Advisor, and Stradling Yocca Carlson & Rauth,
as Bond Counsel in connection with the conversion of the Bonds to a fixed rate.
As mentioned above, the variable rate bonds are subject to mandatory tender on
December 1, 2011. It is anticipated that the fixed rate bonds would be sold in early to
mid November and close on December 1, 2011. At that time the existing LOC with
Union Bank would terminate and the City would begin to pay fixed annual lease
payments.
PREPARED BY:
. - Ni
David Doyle, Assistant City Manager
DOCSOC/1519446v 1(024168-0005
Attachments:
1. Resolution No. 2011-XX authorizing the execution and delivery of documents
relating to conversion of the interest rate to a fixed rate with respect to the City of
Diamond Bar Public Financing Authority Variable Rate Lease Revenue Bonds,
Series 2002A, and authorizing and directing certain actions in connection
therewith
2. Remarketing Agreement
3. Preliminary Reoffering Memorandum
4. Amendment No. I to Lease Agreement
5. Continuing Disclosure Certificate
6. Financial Advisor Contract
7. Bond Counsel Agreement
DOCSOC/1519446v]/024168-0005
i
RESOLUTION NO.
RESOLUTION OF THE CITY OF DIAMOND BAR AUTHORIZING THE EXECUTION AND
DELIVERY OF DOCUMENTS RELATING TO THE CONVERSION OF THE INTEREST RATE
TO A FIXED RATE WITH RESPECT TO THE CITY OF DIAMOND BAR PUBLIC FINANCING
AUTHORITY VARIABLE RATE LEASE REVENUE BONDS,2002 SERIES A,AND
AUTHORIZING AND DIRECTING CERTAIN ACTIONS IN CONNECTION THEREWITH.
The City Council of the City of Diamond Bar does hereby find, order and resolve as follows:
SECTION 1. Recitals.
A. The City of Diamond Bar (the "City") is a municipal -corporation and a general law
city duly organized and existing under and pursuant to the Constitution and laws of the State of
California(the"State").
B. The City of Diamond Bar Public Financing Authority (the "Authority") has assisted
the City to finance a community/senior center and other public improvements in the City through the
issuance of the $13,755,000 City, of Diamond Bar Public Financing Authority Variable Rate Lease
Revenue Bonds, 2002 Series A (the "Bonds") pursuant to that certain Indenture, dated as of
December 1, 2002 (the "Indenture"), by and between the Authority and Union Bank,N.A., formerly
known as Union Bank of California,N.A., as trustee (the"Trustee").
C. The Bonds were originally issued on December 19, 2002 in the aggregate principal
amount of$13,755,000. Since the date of their initial issuance, the Bonds have borne interest at a
Weekly Rate (as such term is defined in the Indenture) and the regularly scheduled payments of
principal and interest on the Bonds have been payable from the proceeds of draws upon an
irrevocable direct-pay letter of credit issued by Union Bank,N.A., formerly known as Union Bank of
California,N.A. (the "Letter of Credif').
D. The City has determined that it is in the best interest of the City: (i) to convert the
interest rate on the Bonds to a Fixed Rate (as such term is defined in the Indenture) on December 1,
2011 in accordance with the provisions of the Indenture; and (ii)to terminate the Letter of Credit on
December 1, 2011 in accordance with the provisions of the Indenture and the Reimbursement
Agreement(as such term is defined in the Indenture).
E. The forms of the documents necessary to accomplish the conversion of the interest
rate on the Bonds to a Fixed Rate and the termination of the Letter of Credit are on file with the City
Clerk(the "Clerk")as described herein.
F. All acts, conditions and things required by the Constitution and laws of the State to
exist, to have happened and to have been performed precedent to and in connection with the
conversion of the interest rate on the Bonds to a Fixed Rate and the termination of the Letter of
Credit do exist, have happened and have been performed in regular and due time, form and manner
as required by law, and the City is now duly authorized and empowered, pursuant to each and every
requirement of law, to consummate such financing for the purpose, in the manner and upon the terms
herein provided.
SECTION 2. Findings. The City Council hereby specifically finds and declares that each of
the statements, findings and determinations of the City set forth in the recitals set forth above and in
the preambles of the documents approved herein are true and correct.
SECTION 3. Authorization of Conversion and Termination. The City Council hereby
authorizes the conversion of the interest rate on the Bonds to a Fixed Rate and the termination of the
Letter of Credit.
SECTION 4. Remarketing Agreement. The form of the Remarketing Agreement, by and
among the City, the Authority and E.J. De La Rosa & Co., Inc., as remarketing agent (the
"Remarketing Agent"), presented to this meeting and on file with the Clerk is hereby approved.
Each of the Mayor of the City (the "Mayor"),the City Manager of the City (the "City Manager") and
the Assistant City Manager of the City (the "Assistant City Manager") or their designees
(collectively,the "Authorized Officers"), ig hereby authorized and directed, for and in the name and
on behalf of the City, to execute and deliver the Remarketing Agreement in substantially said form,
with such changes therein as the Authorized Officer or Officers executing the same may require or
approve, such approval to be conclusively evidenced by the execution and delivery thereof by one or
more of the Authorized Officers; provided that: (i)the aggregate true interest cost of the Bonds shall
not exceed 6.0% after conversion to a Fixed Rate; and (ii) the Remarketing Agent's fee shall not
exceed 0.6%of the outstanding aggregate principal amount of the Bonds.
SECTION 5. Preliminary Reoffering Memorandum. The form of the Preliminary Reoffering
Memorandum presented to this meeting and on file with the Clerk is hereby approved. The City
Manager and his designee are hereby authorized to make such changes to the Preliminary Reoffering
Memorandum as are necessary to make it final as of its date and are authorized and directed to
execute and deliver a certificate deeming the Preliminary Reoffering Memorandum final as of its
date in accordance with Rule 15c2-12 promulgated under the Securities Exchange Act of 1934. Each
of the Authorized Officers is hereby authorized and directed to execute, approve and deliver the final
Reoffering Memorandum in the form of the Preliminary Reoffering Memorandum with such
changes, insertions and omissions as the Authorized Officer or Officers executing said document
may require or approve, such approval to be conclusively evidenced by the execution and delivery
thereof by one or more of such Authorized Officers.
SECTION 6. Continuing Disclosure Certificate. The form of the Continuing Disclosure
Certificate presented to this meeting and on file with the Clerk is hereby approved. Each of the
Authorized Officers is hereby authorized and directed, for and in the name and on behalf of the City,
to execute and deliver the Continuing Disclosure Certificate in substantially said form, with such
changes therein as the Authorized Officer or Officers executing such document may require or
approve, such approval to be conclusively evidenced by the execution and delivery thereof by one or
more of such Authorized Officers.
SECTION 7. Amendment No. 1 to Lease Aareement. Each of the Authorized Officers is
hereby authorized and directed to execute and deliver an Amended and Restated Lease Agreement or
an Amendment No. 1 to Lease Agreement, with such changes, insertions and omissions as may be
required to implement the conversion of the interest rate on the Bonds to a Fixed Rate and the
termination of the Letter of Credit and to address comments received from the credit rating agencies
in connection therewith.
SECTION 8. Attestations. The Clerk and such person or persons as may have been
designated by the Clerk to act on her behalf, are hereby authorized and directed to attest the signature
of the Authorized Officers designated herein to execute any documents described herein, and to affix
and attest the seal of the City,as may be required or appropriate in connection with the execution and
delivery of the Remarketing Agreement, the Continuing Disclosure Agreement and the Reoffering
Memorandum.
SECTION 9. Financial Service Contracts. The form of the contract (the "Bond Counsel
Agreement") between the City and Stradling Yocca Carlson & Rauth, a Professional Corporation,
presented at this meeting is hereby approved and the form of the contract (the "Financial Advisor
Agreement") between the City and Fieldman Rolapp & Associates, Inc. presented at this meeting is
hereby approved. Each of the Authorized Officers is hereby authorized and directed, for and in the
name and on behalf of the City, to execute and deliver the Bond Counsel Agreement and the
Financial 'Advisor Agreement in substantially said forms, with such changes therein as the
Authorized Officer or Officers executing such document may require or approve, such approval to be
conclusively evidenced by the execution and delivery thereof by one or more of such Authorized
Officers.
SECTION 10. Other Actions. The Authorized Officers are each hereby authorized and
directed, jointly and severally, to do any and all things and to execute and deliver any and all
documents which each may deem necessary or advisable (including the payment of other costs of
issuance approved by the City Manager or his designee) in order to consummate the conversion of
the interest rate on the Bonds to a Fixed Rate and the termination of the Letter of Credit and
otherwise to carry out, give effect to and comply with the terms and intent of this Resolution, the
Bonds, the Remarketing Agreement, the Continuing Disclosure Certificate, the Preliminary
Reoffering Memorandum, the Reoffering Memorandum and the Amended and Restated Lease
Agreement or Amendment No. 1 to Lease Agreement, including but not limited to amendments or
supplements to the Indenture and the Site Lease, dated as of December 1, 2002, by.and between the
Authority and the City. Such actions heretofore taken by such officers or designees are hereby
ratified,confirmed and approved.
SECTION 11. Effect. This Resolution shall take effect immediately upon its passage.
SECTION 12. Certification. The Clerk shall certify to the passage and adoption of this
resolution and enter it into the book of original resolutions.
PASSED,APPROVED, and ADOPTED on October 18, 2011.
STEVE TYE,Mayor
I,TOMMYE CRIBBINS, City Clerk of the City of Diamond Bar, California do hereby certify that
the foregoing Resolution was Passed,Approved and Adopted by the City Council of the City of
Diamond Bar held on the day of 2011 by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAINED: COUNCIL MEMBERS:
Tommye Cribbins, City Clerk
City of Diamond Bar
Stradling Yocca Carlson&Rauth
Draft of 10113111
$11,885,000
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
FIXED RATE LEASE REVENUE BONDS,2002 SERIES A
(COMMUNITY/SENIOR CENTER PROJECT)
REMARKETING AGREEMENT
October 2011
City of Diamond Bar
21825 Copley Drive
Diamond Bar, California 91765
Attention: City Manager
City of Diamond Bar Public Financing Authority
c/o City of Diamond Bar
21825 Copley Drive
Diamond Bar, California 91765
Attention: City Manager
Ladies and Gentlemen:
The undersigned, E.J. De La Rosa & Co., Inc. (the "Remarketing Agent"), acting not as a
fiduciary or agent for you, but on behalf of itself, offers to enter into this Remarketing Agreement
(which, together with Exhibit A, is referred to as the "Remarketing Agreement") with the City of
Diamond Bar Public Financing Authority(the "Authori ") and the City of Diamond Bar, California
(the "Ci1y"), which, upon the acceptance by the Authority and the City, will be binding upon the
Authority, the City and the Remarketing Agent. This offer is made subject to acceptance by the
Authority and by the City by the execution of this Remarketing Agreement and delivery of the same
to the Remarketing Agent prior to 6:00 P.M., Pacific Standard Time,on the date hereof, and, if not so
accepted, will be subject to withdrawal by the Remarketing Agent upon notice delivered to the
Authority and the City at any time prior to the acceptance hereof by the Authority and the City.
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the
Indenture, dated as of December 1, 2002 (the "Indenture"), by and between the Authority and Union
Bank, N.A., formerly known as Union Bank of California, N.A., as trustee (the "Trustee")
substantially in the form previously submitted to the Remarketing Agent with only such changes
therein as shall be mutually agreed upon by the Authority,the City and the Remarketing Agent.
Section 1. Remarketing. Upon the terms and conditions and upon the basis of the
representations, warranties and agreements herein set forth, the Remarketing Agent hereby agrees to
purchase and remarket all (but not less than all) of the City of Diamond Bar Public Financing
Authority Variable Rate Lease Revenue Bonds, 2002 Series A(Community/Senior Center Project) in
the aggregate principal amount of $11,885,000 (the "Bonds") on December 1, 2011 (the "Closing
Date") and to deliver the proceeds of such remarketing to the Trustee for payment of the purchase
price of the tendered Bonds on such Closing Date. Interest on the Bonds shall be payable
semiannually on July 1, 2012 and each January I and July 1 thereafter, and will bear interest at the
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rates as set forth in Exhibit A hereto. The purchase price for the Bonds shall be equal to $
(being the aggregate principal amount thereof less a Remarketing Agent's fee of$ �.
The City and Authority acknowledge and agree that: (i) the purchase and remarketing of the
Bonds pursuant to this Remarketing Agreement is an arm's-length commercial transaction by and
among the City, the Authority and the Remarketing Agent; (ii) in connection therewith and with the
discussions, undertakings and procedures leading up to the consummation of such transaction, the
Remarketing Agent is and has been acting solely as a principal and is not acting as a Municipal
Advisor (as defined in Section 15B of The Securities Exchange Act of 1934, as amended), financial
advisor or fiduciary; (iii) the Remarketing Agent has not assumed an advisory or fiduciary
responsibility in favor of the City or the Authority with respect to the offering contemplated hereby
or the discussions, undertakings and procedures leading thereto (irrespective of whether the
Remarketing Agent has provided other services or are currently providing other services to the City
or the Authority on other matters); and(iv)the City and the Authority have consulted their own legal,
financial and other advisors to the extent they have deemed appropriate.
Section 2. The Bonds. The Bonds shall be secured by revenues consisting primarily of
base rental payments ("Base Rental Payments") to be paid by the City pursuant to the Lease
Agreement, dated as of December 1, 2002 (the "Lease Agreement"), by and between the City and the
Authority. The Authority's right to receive the Base Rental Payments due under the Lease
Agreement and.to exercise remedies upon default under such Lease Agreement shall be assigned to
the Trustee for the benefit of the owners of the Bonds pursuant to the Indenture.
The Bonds shall be as described in,and shall be secured under and pursuant to the Indenture.
The Bonds, this Remarketing Agreement, the Indenture, the Lease Agreement and the Site
Lease, dated as of December 1, 2002 (the "Site Lease"), by and between the Authority and the City,
the Reoffering Memorandum (as defined herein) relating to the Bonds, and the resolution of the
Authority authorizing the remarketing of the Bonds are collectively referred to herein as the
"Authority Documents."
This Remarketing Agreement,the Continuing Disclosure Certificate, dated as of December 1,
2011 (the "Continuing Disclosure Certificate"), the Lease Agreement, the Site Lease, the Reoffering
Memorandum and the resolution of the City authorizing the execution and delivery of the City
Documents (hereinafter defined) are collectively referred to herein as the "Cily Documents."
Section 3. Public Reoffering. The Remarketing Agent agrees to make an public
reoffering of all of the Bonds at the public reoffering prices (or yields) set forth on Exhibit A
attached hereto and incorporated herein by reference. Subsequent to the public reoffering, the
Remarketing Agent reserves the right to change the public reoffering prices (or yields) as the
Remarketing Agent deems necessary in connection with the marketing of the Bonds, provided that
the Remarketing Agent shall not change the interest rates set forth on Exhibit A. The Bonds may be
offered and sold to certain dealers (including dealers depositing the Bonds into investment trusts) at
prices lower than such public reoffering prices.
Section 4. The Reoffering Memorandum. By its acceptance of this proposal, the
Authority and the City ratify, confirm and approve of the use and distribution by the Remarketing
Agent prior to the date hereof of the preliminary reoffering memorandum relating to the Bonds dated
November _, 2011 (including the cover page, all appendices and all information incorporated
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therein and any supplements or amendments thereto and as disseminated in its printed physical form
or in electronic form in all respects materially consistent with such physical form, the "Preliminary
Reoffering Memorandum") that authorized officers of the Authority and the City deemed "final" as
of its date for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934
("Rule 15c2-12"), except for certain information permitted to be omitted therefrom by Rule 15c2-12.
The Authority and the City hereby agree to deliver or cause to be delivered to the Remarketing
Agent, within seven business days of the date hereof, copies of the final Reoffering Memorandum,
dated the date hereof, relating to the Bonds (including all information previously permitted to have
been omitted by Rule 15c2-12) (including the cover page, all appendices, all information
incorporated therein and any amendments or supplements as have been approved by the Authority,
the City and the Remarketing Agent,the "Reoffering Memorandum"), in such quantity and format as
the Remarketing Agent shall reasonably request to comply with Section (b)(4) of Rule 15c2-12 and
the rules of the Municipal Securities Rulemaking Board(the"MSRB").
The Remarketing Agent hereby agrees that it will not request that payment be made by any
purchaser of the Bonds prior to delivery by the Remarketing Agent to the purchaser of a copy of the
Reoffering Memorandum. The Remarketing Agent agrees: (i)to provide the Authority and the City
upon request with final pricing information on the Bonds on a timely basis; and(ii)to promptly file a
copy of the Reoffering Memorandum, including any supplements prepared by the Authority or the
City with the MSRB at http://emma.msrb.org. The Authority and the City hereby approve of the use
and distribution by the Remarketing Agent of the Reoffering Memorandum in connection with the
offer and sale of the Bonds. The Authority and the City will cooperate with the Remarketing Agent
in the filing by the Remarketing Agent of the Reoffering Memorandum with the MSRB.
Section 5. Closing. At 8:00 A.M., Pacific Standard Time, on the Closing Date, or at
such other time or date as the Authority and the Remarketing Agent agree upon, the Authority shall
deliver or cause to be delivered to the Trustee, and the Trustee shall deliver or cause to be delivered
to The Depository Trust Company, New York New York ("DTC"), the Bonds in definitive form,
duly executed and authenticated. Concurrently with the delivery of the Bonds, the Authority and the
City will deliver the documents hereinafter mentioned at the offices of Stradling Yocca Carlson &
Rauth, a Professional Corporation,Newport Beach, California("Bond Counsel"), or another place to
be mutually agreed upon by the Authority, the City and the Remarketing Agent. The Remarketing
Agent will accept such delivery and pay the purchase price of the Bonds as set forth in Section 1
hereof by wire transfer in immediately available funds. This payment for and delivery of the Bonds,
together with the delivery of the aforementioned documents, is herein called the"Closing."
The Remarketing Agent hereby agrees to make a bona fide public reoffering of all Bonds at
prices not in excess of the public reoffering prices (or yields) set forth on the cover page of the
Reoffering Memorandum, reserving, however, the right to change such yields or prices after the
initial public offering as the Remarketing Agent shall deem necessary in connection with the offering
of the Bonds. The Remarketing Agent shall provide to the Authority and the City on the Closing
Date a certificate setting forth the reoffering prices to the public of each maturity of the Bonds at
which a substantial amount of such maturities were sold, such certificate to be in a form mutually
acceptable to Bond Counsel and the Remarketing Agent.
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Section 6. Representations, Warranties and Covenants of the Authority. The
Authority represents, warrants and covenants to the Remarketing Agent and the City that:
(a) The Authority is a public body, duly organized and existing under the
Constitution and laws of the State of California(the"State"), including the Authority's Joint Exercise
of Powers Agreement (the "JPA Agreement") and the Joint Exercise of Powers Act (Government
Code Division 7, Chapter 5, Section 6500 et seq.) (the"JPA Act").
(b) The Authority has full legal right, power and authority to adopt or enter into,
as the case may be, and to carry out and consummate the transactions on its part contemplated by the
Authority Documents.
(c) By all necessary official action, the Authority has duly adopted, authorized
and approved the Authority Documents, has duly authorized and approved the Preliminary
Reoffering Memorandum, will, by execution thereof, duly authorize and approve the Reoffering
Memorandum, and has duly adopted or authorized and approved the execution and delivery of, and
the performance by the Authority of the obligations on its part contained in, the Authority
Documents and the consummation by it of all other transactions contemplated by the Authority
Documents in connection with the issuance of the Bonds. As of the date hereof, such authorizations
and approvals are in full force and effect and have not been amended, modified or rescinded. When
executed and delivered, and assuming due execution and delivery by the other parties thereto, if
applicable, the Authority Documents will constitute the legally valid and binding obligations of the
Authority enforceable in accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency,reorganization,moratorium or similar laws or equitable principles
relating to or affecting creditors' rights generally, or by the exercise of judicial discretion and the
limitations on legal remedies against joint powers authorities in the State. The Authority will at the
Closing be in compliance in all respects,with the terms of the Authority Documents.
(d) To the best of its knowledge, the Authority is not in any material respect in
breach of or default under any applicable constitutional provision, law or administrative regulation of
any state or of the United States, or any agency or instrumentality of either, or any applicable
judgment or decree, or any loan agreement, indenture, bond, note, resolution, agreement or other
instrument to which the Authority is a party which breach or default has or may have an adverse
effect on the ability of the Authority to perform its obligations under the Authority Documents, and
no event has occurred and is continuing which with the passage of time or the giving of notice, or
both,would constitute such a default or event of default under any such instrument; and the adoption,
execution and delivery of the Authority Documents, if applicable, and compliance with the
provisions on the Authority's part contained therein, will not conflict in any material way with or
constitute a material breach of or a material default under any constitutional provision, law,
administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution,
agreement or other instrument to which the Authority is a party, nor will any such execution,
delivery, adoption or compliance result in the creation or imposition of any lien, charge or other
security interest or encumbrance of any nature whatsoever upon any of the property or assets of the
Authority or under the terms of any such law, regulation or instrument, except as may be provided by
the Authority Documents.
(e) To the best of its knowledge, all material authorizations, approvals, licenses,
permits, consents and orders of any governmental authority, legislative body, board, agency or
commission having jurisdiction of the matter which are required for the due authorization by, or
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which would constitute a condition precedent to or the absence of which would materially adversely
affect the due performance by the Authority of its obligations in connection with the Authority
Documents have been duly obtained or, when required for future performance, are expected to be
obtained, other than such approvals, consents and orders as may be required under the Blue Sky or
securities laws of any state in connection with the offering and sale of the Bonds; except as described
in or contemplated by the Preliminary Reoffering Memorandum and the Reoffering Memorandum,
all authorizations, approvals, licenses, permits, consents and orders of any governmental authority,
board, agency or commission having jurisdiction of the matter which are required for the due
authorization by, or which would constitute a condition precedent to or the absence of which would
materially adversely affect the due performance by, the Authority of its obligations under the
Authority Documents have been duly obtained.
(f) The Authority hereby agrees that it will notify the other parties hereto if,
within the period from the date of this Remarketing Agreement•to and including the date twenty-five
(25) days following the end of the underwriting period (as defined herein), the Authority discovers
any pre-existing or subsequent fact or becomes aware of the occurrence of any event, in any such
case, which might cause the Reoffering Memorandum (as the same may have then been
supplemented or amended) to contain any untrue statement of a material fact or to omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(g) As of the time of acceptance hereof and the Closing, except as disclosed in
the Reoffering Memorandum, there is no action, suit, proceeding, inquiry or investigation, at law or
in equity, before or by any court, governmental authority, public board or body, pending, with
service of process having been accomplished, or threatened in writing and delivered to the Authority:
(i) in any way questioning the corporate existence of the Authority or the titles of the officers of the
Authority to their respective offices; (ii)affecting, contesting or seeking to prohibit, restrain or enjoin
the issuance or delivery of any of the Bonds, or the payment or collection of Base Rental Payments
with respect to the Lease Agreement or any amounts pledged or to be pledged to pay the principal of
and interest on the Bonds, or in any way contesting or affecting the validity of the Bonds or the other
Authority Documents or the consummation of the transactions contemplated thereby or hereby;
(iii)which would be likely to result in any material adverse change relating to the business,
operations or financial condition of the Authority; or (iv)contesting the completeness or accuracy of
the Preliminary Reoffering Memorandum or the Reoffering Memorandum or any supplement or
amendment thereto or asserting that the Preliminary Reoffering Memorandum or the Reoffering
Memorandum contained any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made,not misleading.
(h) To the best of the Authority's knowledge, there is no basis for any action,
suit, proceeding, inquiry or investigation of the nature described in clauses(i) through (iv) of
paragraph 6(g).
(i) The information in the Reoffering Memorandum set forth under the caption
"THE AUTHORITY" does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made,not misleading.
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(j) Any certificate signed by any officer of the Authority authorized to execute
such certificate in connection with the execution, sale and delivery of the Bonds and delivered to the
Remarketing Agent shall be deemed a representation of the Authority to the Remarketing Agent and
the City as to the statements made therein but not of the person signing such certificate.
Section 7. Representations, Warranties and Covenants of the City. The City
represents,warrants and covenants to the Remarketing Agent and the Authority that:
(a) The City is a general law city and municipal corporation duly organized and
existing under and by virtue of the laws of the State.
(b) The City has full legal right,power and authority to adopt or enter into, as the
case may be, and to carry out and consummate the transactions on its part contemplated by the City
Documents.
(c) By all necessary official action, the City has duly adopted, authorized and
approved the City Documents, has duly authorized .and approved the Preliminary Reoffering
Memorandum and the Reoffering Memorandum, and has duly adopted or authorized and approved
the execution and delivery of, and the performance by the City of the obligations on its part
contained in, the City Documents and the consummation by it of all other transactions contemplated
by the City Documents in connection with the issuance of the Bonds. As of the date hereof, such
authorizations and approvals are in full force and effect and have not been amended, modified or
rescinded. When executed and delivered, and assuming due execution and delivery by the other
parties thereto, if applicable, the City Documents will constitute the legally valid and binding
obligations of the City enforceable in accordance with their respective terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or affecting creditors' rights generally, or by the exercise of judicial discretion
and the limitations on legal remedies against municipal corporations in the State. The City will at the
Closing be in compliance in all respects,with the terms of the City Documents.
(d) To the best of its knowledge, the City is not in any material respect in breach
of or default under any applicable constitutional provision, law or administrative regulation of any
state or of the United States, or any agency or instrumentality of either, or any applicable judgment or
decree, or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to
which the City is a party which breach or default has or may have an adverse effect on the ability of
the City to perform its obligations under the City Documents, and no event has occurred and is
continuing which with the passage of time or the giving of notice, or both, would constitute such a
default or event of default under any such instrument; and the adoption, execution and delivery of the
City Documents, if applicable, and compliance with the provisions on the City's part contained
therein, will not conflict in any material way with or constitute a material breach of or a material
default under any constitutional provision, law, administrative regulation, judgment, decree, loan
agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a
party nor will any such execution, delivery, adoption or compliance result in the creation or
imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever
upon any of the property or assets of the City or under the terms of any such law, regulation or
instrument, except as may be provided by the City Documents.
(e) To the best of its knowledge, all material authorizations, approvals, licenses,
permits, consents and orders of any governmental authority, legislative body, board, agency or
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commission having jurisdiction of the matter which are required for the due authorization by, or
which would constitute a condition precedent to or the absence of which would materially adversely
affect the due performance by the City of its obligations in connection with the City Documents have
been duly obtained or, when required for future performance; are expected to be obtained, other than
such approvals, consents and orders as may be required under the Blue Sky or securities laws of any
state in connection with the offering and sale of the Bonds; except as described in or contemplated by
the Preliminary Reoffering Memorandum, all authorizations, approvals, licenses, permits, consents
and orders of any governmental authority, board, agency or commission having jurisdiction of the
matter which are required for the due authorization by, or which would constitute a condition
precedent to or the absence of which would materially adversely affect the due performance by, the
City of its obligations under the City Documents have been duly obtained.
(f) The Preliminary Reoffering Memorandum was as of its date, and the
Reoffering Memorandum is, and at all times subsequent to the date of the Reoffering Memorandum
up to and including the Closing will be, true and correct in all material respects, and the Preliminary
Reoffering Memorandum and the Reoffering Memorandum do not and will not contain and up to and
including the Closing will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein, in the light of the circumstances
under which they were made, not misleading (except that this representation does not include
information regarding DTC and its book-entry only system, information under the caption
"UNDERWRITING," CUSIP numbers, prices and yields for the Bonds and any other information
provided by the Remarketing Agent, as to which no view is expressed).
(g) The City will advise the Remarketing Agent promptly of any proposal to
amend or supplement the Reoffering Memorandum and will not effect or consent to any such
amendment or supplement without the consent of the Remarketing Agent, which consent will not be
unreasonably withheld. The City will advise the Remarketing Agent promptly of the institution of
any proceedings known to it by any governmental authority prohibiting or otherwise affecting the use
of the Reoffering Memorandum in connection with the offering, sale or distribution of the Bonds.
(h) As of the time of acceptance hereof and the Closing, except as disclosed in
the Reoffering Memorandum, there is no action, suit, proceeding, inquiry or investigation, at law or
in equity, before or by any court, governmental authority, public board or body, pending, with
service of process having been accomplished,or threatened in writing and delivered to the City: (i) in
any way questioning the corporate existence of the City or the titles of the officers of the City to their
respective offices; (ii)affecting, contesting or seeking to prohibit, restrain or enjoin the issuance or
delivery of any of the Bonds, or the payment or collection of Base Rental Payments with respect to
the Lease Agreement or of any amounts pledged or to be pledged to pay the principal of and interest
on the Bonds, or in any way contesting or affecting the validity of the Bonds, or the City Documents
or the consummation of the transactions contemplated thereby or hereby; (iii)which would be likely
to result in any material adverse change relating to the business, operations or financial condition of
the City; and (iv)contesting the completeness or accuracy of the Preliminary Reoffering
Memorandum or the Reoffering Memorandum or any supplement or amendment thereto or asserting
that the Preliminary Reoffering Memorandum or the Reoffering Memorandum contained any untrue
statement of a material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made,not misleading.
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(i) To the best of the City's knowledge, there is no basis for any action, suit,
proceeding, inquiry or investigation of the nature described in clauses(i) through (iv) of paragraph
7(h).
(j) Until the date which is twenty-five (25) days after the "end of the
underwriting period" (as hereinafter defined), if any event shall occur of which the City is aware that
would cause the Reoffering Memorandum to contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements in the Reoffering Memorandum, in
light of the circumstances under which they were made, not misleading, the City shall forthwith
notify the Remarketing Agent of any such event of which it has knowledge and shall cooperate fully
in furnishing any information available to it for any supplement to the Reoffering Memorandum
necessary, in the Remarketing Agent's reasonable opinion, so that the statements therein as so
supplemented will not be misleading in light of the circumstances existing at such time and the City
shall promptly furnish to the Remarketing Agent a reasonable number of copies of such supplement.
As used herein, the term "end of the underwriting period" means the later of such time as: (i)the
Authority delivers the Bonds to the Remarketing Agent; or (ii)the Remarketing Agent does not
retain, directly or as a member of an underwriting syndicate, an unsold balance of the Bonds for
reoffering to the public. Unless the Remarketing Agent gives written notice to the contrary,the "end
of the underwriting period" shall be deemed to be the Closing Date. Any notice delivered pursuant
to this provision shall be written notice delivered to the Authority and the City at or prior to the
Closing Date of the Bonds and shall specify a date (other than the Closing Date) to be deemed the
"end of the underwriting period." The City agrees to cooperate with the Remarketing Agent in the
filing by the Remarketing Agent of such supplement or amendment to the Reoffering Memorandum
with the MSRB.
(k) Except as disclosed in the Preliminary Reoffering Memorandum and the
Reoffering Memorandum, the City has not within the last five years failed to comply in any material
respect with any continuing disclosure undertakings with regard to Rule 15c2-12, to provide annual
reports or notices of material events specified in such rule.
(1) The financial statements relating to the receipts, expenditures and cash
balances of the City as of June 30, [2011] attached as Appendix B to the Reoffering Memorandum
fairly represent the receipts, expenditures and cash balances of the City. Except as disclosed in the
Reoffering Memorandum or otherwise disclosed in writing to the Remarketing Agent, there has not
been any materially adverse change in the financial condition of the City or in its operations since
June 30, [2011] and there has been no occurrence, circumstance or combination thereof which is
reasonably expected to result in any such materially adverse change.
(m) To the extent required by law, the City will undertake, pursuant to the
Continuing Disclosure Certificate, to provide annual reports and notices of certain enumerated
events. A description of this undertaking is set forth in Appendix F to the Preliminary Reoffering
Memorandum and will also be set forth in the Reoffering Memorandum.
(n) Any certificate signed by any officer of the City authorized to execute such
certificate in connection with the execution, sale and delivery of the Bonds and delivered to the
Remarketing Agent shall be deemed a representation of the City to the Remarketing Agent and the
Authority as to the statements made therein but not of the person signing such certificate.
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Section 8. Conditions to the Obligations of the Remarketing Agent. The
Remarketing Agent has entered into this Remarketing Agreement in reliance upon the
representations and warranties of the Authority and the City contained herein. The obligations of the
Remarketing Agent to accept redelivery of and pay for the Bonds on the Closing Date shall be
subject, at the option of the Remarketing Agent, to the accuracy in all material respects of the
statements of the officers and other officials of the Authority and of the City, as well as authorized
representatives of the Trustee made in any certificates or other documents furnished pursuant to the
provisions hereof, to the performance by the Authority and the City of their obligations to be
performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The representations, warranties and covenants of the City and the Authority
contained herein shall be true, complete and correct at the date hereof and at the time of the Closing,
as if made on the Closing Date.
(b) At the time of Closing, the City Documents and the Authority Documents
shall be in full force and effect as valid and binding agreements between or among the various parties
thereto, and the City Documents and the Authority Documents shall not have been amended,
modified or supplemented except as may have been agreed to in writing by the Remarketing Agent.
(c) At the time of the Closing, no default shall have occurred or be existing under
the City Documents or the Authority Documents, and the City shall not be in default in the payment
of principal or interest with respect to any of its financial obligations, which default would adversely
impact the ability of the City to pay the Base Rental Payments.
(d) In recognition of the desire of the Authority, the City and the Remarketing
Agent to effect a successful public reoffering of the Bonds, and in view of the potential adverse
impact of any of the following events on such a public reoffering,this Remarketing Agreement shall
be subject to termination in the absolute discretion of the Remarketing Agent by notification, in
writing,to the Authority and the City prior to redelivery of and payment for the Bonds, if at any time
prior to such time:
(i) any event shall occur which makes untrue any statement or results in
an omission to state a material fact necessary to make the statements in the Reoffering Memorandum,
in the light of the circumstances under which they were made, not misleading, which event, in the
reasonable opinion of the Remarketing Agent would materially or adversely affect the ability of the
Remarketing Agent to market the Bonds; or
(ii) the marketability of the Bonds or the market price thereof, in the
opinion of the Remarketing Agent, has been materially adversely affected by an amendment to the
Constitution of the United States or by any legislation in or by the Congress of the United States or
by the State, or the amendment of legislation pending as of the date of this Remarketing Agreement
in the Congress of the United States, or the recommendation to Congress or endorsement for passage
(by press release, other form of notice or otherwise) of legislation by the President of the United
States, the Treasury Department of the United States, the Internal Revenue Service or the Chairman
or ranking minority member of the Committee on Finance of the United States Senate or the
Committee on Ways and Means of the United States House of Remarketing Agents, or the proposal
for consideration of legislation by either such Committee or by any member thereof, or the
presentment of legislation for consideration as an option by either such Committee, or by the staff of
the Joint Committee on Taxation of the Congress of the United States, or the favorable reporting for
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passage of legislation to either House of the Congress of the United States by a Committee of such
House to which such legislation has been referred for consideration, or any decision of any federal or
state court or any ruling or regulation (final, temporary or proposed)or official statement on behalf of
the United States Treasury Department, the Internal Revenue Service or other federal or State
authority affecting the federal or State tax status of the Authority or the City, or the interest on or
with respect to bonds or notes(including the Bonds); or
(iii) any legislation, ordinance, rule or regulation shall be introduced in, or
be enacted by any governmental body, department or authority of the State, or a decision by any
court of competent jurisdiction within the State shall be rendered which materially adversely affects
the market price of the Bonds; or
(iv) an order, decree or injunction issued by any court of competent
jurisdiction, or order, ruling, regulation (final, temporary or proposed), Reoffering Memorandum or
other form of notice or communication issued or made by or on behalf of the Securities and
Exchange Commission, or any other governmental Authority having jurisdiction of the subject
matter,to the effect that: (i)obligations of the general character of the Bonds, or the Bonds, including
any or all underlying arrangements, are not exempt from registration under the Securities Act of
1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture
Act of 1939, as amended; or (ii)the issuance, offering or sale of obligations of the general character
of the Bonds, or the issuance, offering or sale of the Bonds, including any or all underlying
obligations, as contemplated hereby or by the Reoffering Memorandum, is or would be in violation
of the federal securities laws as amended and then in effect; or
(v) legislation shall be enacted by the Congress of the United States, or a
decision by a court of the United States shall be rendered,to the effect that obligations of the general
character of the Bonds, or the Bonds are not exempt from registration under or other requirements of
the Securities Act of 1933, as amended and as then in effect, or the Securities Exchange Act of 1934,
as amended and as then in effect, or that the Indenture is not exempt from qualification under or other
requirements of the Trust Indenture Act of 1939, as amended and as then in effect; or
(vi) additional material restrictions not in force as of the date hereof shall
have been imposed upon trading in securities generally by any domestic governmental authority or
by any domestic national securities exchange, which are material to the marketability of the Bonds;
or
(vii) a general banking moratorium shall have been declared by federal,
State or New York authorities, or the general suspension of trading on any national securities
exchange; or
(viii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other calamity or crisis the effect
of which on financial markets is materially adverse such as to make it, in the sole judgment of the
Remarketing Agent, impractical or inadvisable to proceed with the purchase or delivery of the Bonds
as contemplated by the Reoffering Memorandum (exclusive of any amendment or supplement
thereto); or
(ix) any rating of the Bonds or the rating of any obligations of the City
secured by the City's general fund shall have been downgraded or withdrawn by a national rating
10
DOCSOC/1517150v2/024168-0005
service, which, in the opinion of the Remarketing Agent, materially adversely affects the market
price of the Bonds; or
(x) the commencement of any action, suit or proceeding described in
Section 6(g)or Section 7(h).
(e) at or prior to the Closing, the Remarketing Agent shall receive the following
documents, in each case to the reasonable satisfaction in form and substance of the Remarketing
Agent:
(i) All resolutions relating to the reoffering of the Bonds adopted by the
Authority and certified by an authorized official of the Authority authorizing the execution and
delivery of the Authority Documents;
(ii) All resolutions relating to the reoffering of the Bonds adopted by the
City and certified by an authorized official of the City authorizing the execution and delivery of the
City Documents;
(iii) The City Documents and the Authority Documents duly executed and
delivered by the respective parties thereto, with only such amendments, modifications or
supplements as may have been agreed to in writing by the Remarketing Agent;
(iv) The approving opinion of Bond Counsel with respect to the
conversion of the interest rate on the Bonds in the form delivered on September 30, 2011;
(v) A supplemental opinion of Bond Counsel dated the Closing Date and
addressed to the Remarketing Agent,to the effect that:
(A) the statements in the Reoffering Memorandum under the
captions "INTRODUCTION," "THE BONDS," "SECURITY FOR THE BONDS" and in
Appendix C—"SUMMARY OF PRINCIPAL LEGAL DOCUMENTS," excluding any material that
may be treated as included under such captions and appendices by any cross-reference, insofar as
such statements expressly summarize provisions of the Indenture, Lease Agreement and Site Lease
are accurate in all material respects as of the Closing Date;
(B) The Remarketing Agreement has been duly authorized,
executed and delivered by the City and the Authority and is the valid, legal and binding agreement of
the City and the Authority, enforceable in accordance with its terms, except that the rights and
obligations under the Remarketing Agreement are subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws affecting creditors' rights, to the
application of equitable principles if equitable remedies are sought, to the exercise of judicial
discretion in appropriate cases and to limitations on legal remedies against public agencies in the
State, and provided that no opinion is expressed with respect to any indemnification or contribution
provisions contained therein; and
(C) The Bonds are not subject to the registration requirements of
the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the
Trust Indenture Act of 1939, as amended;
11
DOCSOC/1517150x2/024168-0005
(vi) The Reoffering Memorandum, executed on behalf of the Authority
and City, and the Preliminary Reoffering Memorandum;
(vii) Evidence that the ratings on the Bonds are as described in the
Reoffering Memorandum;
(viii) A certificate, dated the Closing Date, signed by a duly authorized
officer of the Authority satisfactory in form and substance to the Remarketing Agent to the effect
that: (i)the representations,warranties and covenants of the Authority contained in this Remarketing
Agreement are true and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date by the Authority, and the Authority has complied with all of the
terms and conditions of this Remarketing Agreement required to be complied with by the Authority
at or prior to the Closing Date; (ii)to the best of such officer's knowledge, no event affecting the
Authority has occurred since the date of the Reoffering Memorandum which should be disclosed in
the Reoffering Memorandum for the purposes for which it is to be used or which is necessary to
disclose therein in order to make the statements and information therein not misleading in any
material respect; (iii)the information and statements contained in the Reoffering Memorandum under
the captions "INTRODUCTION—The Authority" and "THE AUTHORITY" did not as of its date
and do not as of the Closing contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading in any material respect; and (iv)to the best of its knowledge after
reasonable investigation, the Authority is not in breach of or default under any applicable law or
administrative regulation of the State or the United States or any applicable judgment or decree or
any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the
Authority is a party or is otherwise subject, which would have a material adverse impact on the
Authority's ability to,perform its obligations under the Authority Documents, and no event has
occurred and is continuing which, with the passage of time or the giving of notice, or both, would
constitute a default or an event of default under any such instrument;
(ix) A certificate, dated the Closing Date, signed by a duly authorized
officer of the City satisfactory in form and substance to the Remarketing Agent to the effect that:
(i)the representations, warranties and covenants of the City contained in this Remarketing
Agreement are true and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date by the City, and the City has complied with all of the terms and
conditions of the Remarketing Agreement required to be complied with by the City at or prior to the
Closing Date; (ii)to the best of such officer's knowledge, no event affecting the City has occurred
since the date of the Reoffering Memorandum which should be disclosed in the Reoffering
Memorandum for the purposes for which it is to be used or which is necessary to disclose therein in
order to make the statements and information therein not misleading in any material respect; (iii)the
information and statements contained in the Reoffering Memorandum (except that this representation
does not include information regarding DTC and its book entry only system, information under the
caption "UNDERWRITING," CUSIP numbers, prices and yields for the Bonds and any other
information provided by the Remarketing Agent, as to which no view is expressed) did not as of its
date and do not as of the Closing contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading in any material respect; and (iv)to the best of its knowledge after
reasonable investigation, the City is not in breach of or default under any applicable law or
administrative regulation of the State or the United States or any applicable judgment or decree or
any loan agreement, indenture, bond, note, resolution, agreement (including but not limited to the
12
DOCSOC/1517150v2/024168-0005
Lease Agreement) or other instrument to which the City is a parry or is otherwise subject, which
would have a material adverse impact on the City's ability to perform its obligations under the City
Documents, and no event has occurred and is continuing which, with the passage of time or the
giving of notice, or both,would constitute a default or an event of default under any such instrument;
(x) An opinion dated the Closing Date and addressed to the Remarketing
Agent, the Authority, the City and Bond Counsel, of the City Attorney of the City of Diamond Bar,
as counsel to the Authority,to the effect that:
(A) The Authority is a public body, organized and existing under
the Constitution and laws of the State, including the JPA Act and the JPA Agreement;
(B) The resolution relating to the Bonds adopted by the Authority
and certified by an authorized official of the Authority authorizing the reoffering of the Bonds and
the execution and delivery of the Authority Documents has been duly adopted at a regular meeting of
the Authority, and is in full force and effect and has not been modified, amended, rescinded or
repealed since the date of its adoption;
(C) The Authority Documents have been duly authorized,
executed and delivered by the Authority and constitute valid, legal and binding agreements of the
Authority enforceable in accordance with their respective terms;
(D) Except as otherwise disclosed in the Reoffering Memorandum
and to the best knowledge of such counsel after due inquiry,there is no litigation,proceeding, action,
suit, or investigation at law or in equity before or by any court, governmental authority or body,
pending, with service of process having been accomplished, or threatened in writing against the
Authority, challenging the creation, organization or existence of the Authority, or the validity of the
Authority Documents or seeking to restrain or enjoin the collection of Base Rental Payments with
respect to the Lease Agreement or the repayment of the Bonds or in any way contesting or affecting
the validity of the Authority Documents or contesting the authority of the Authority to enter into or
perform its obligations under any of the Authority Documents;
(E) The execution and delivery of the Authority Documents and
the issuance of the Bonds and compliance with the provisions thereof, do not and will not in any
material respect conflict with or constitute on the part of the Authority a breach of or default under
any agreement or other instrument to which the Authority is a party or by which it is bound or any
existing law, regulation, court order or consent decree to which the Authority is subject, which
breach or default has or may have a material adverse effect on the ability of the Authority to perform
its obligations under the Authority Documents;
(F) No authorization, approval, consent, or other order of the
State or any other governmental body within the State is required for the valid authorization,
execution and delivery of the Authority Documents or the Reoffering Memorandum by the Authority
or the consummation by the Authority of the transactions on its part contemplated therein, except
such as have been obtained and except such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Bonds by the Remarketing Agent; and
(G) Based on the information made available to such counsel in
its role as counsel to the Authority, and without having undertaken to determine independently or
13
DOCSOC/1517150v2/024168-0005
assume any responsibility for the accuracy, completeness or fairness of the statements contained in
the Reoffering Memorandum under the caption entitled "THE AUTHORITY," nothing has come to
its attention which would lead it to believe that the statements contained in the above-referenced
caption as of the date of the Reoffering Memorandum and as of the Closing Date (excluding
therefrom the financial and statistical data and forecasts included therein, as to which no opinion is
expressed)contained or contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the circumstances under which
they were made,not misleading;
(xi) an opinion dated the Closing Date and addressed to the Remarketing
Agent and Bond Counsel, of the City Attorney of the City of Diamond Bar,to the effect that:
(A) The City is a general law city and municipal corporation, duly
organized and existing under and by virtue of the laws of the State;
(B) The resolution relating to the Bonds adopted by the City and
certified by an authorized official of the City authorizing the execution and delivery of the City
Documents has been duly adopted and is in full force and effect and has not been modified, amended,
rescinded or repealed since the its date of adoption;
(C) The City Documents have been duly authorized, executed and
delivered by the City and, assuming due authorization, execution and delivery by the other parties
thereto, if applicable, constitute the valid, legal and binding agreements of the City enforceable in
accordance with their respective terms;
(D) Except as otherwise disclosed in the Reoffering Memorandum
and to the best knowledge of such counsel after due inquiry,there is no litigation,proceeding, action,
suit, or investigation at law or in equity before or by any court, governmental authority or body,
pending, with service of process having been accomplished, or threatened in writing against the City,
challenging the creation, organization or existence of the City, or the validity of the City Documents
or seeking to restrain or enjoin the payment of the Base Rental Payments or the repayment of the
Bonds or in any way contesting or affecting the validity of the City Documents or contesting the
authority of the City to enter into or perform its obligations under any of the City Documents, or
which, in any manner, questions the right of the City to pay the Base Rental Payments under the
Lease Agreement;
(E) [Reserved];
(F) The execution and delivery of the City Documents and
compliance with the provisions thereof, do not and will not in any material respect conflict with or
constitute on the part of the City a breach of or default under any agreement or other instrument to
which the City is a party or by which it is bound or any existing law, regulation, court order or
consent decree to which the City is subject, which breach or default has or may have a material
adverse effect on the ability of the City to perform its obligations under the City Documents;
(G) No authorization, approval, consent, or other order of the
State or any other governmental body within the State is required for the valid authorization,
execution and delivery of the City Documents or the consummation by the City of the transactions on
its part contemplated therein, except such as have been obtained and except such as may be required
14
DOCSOC/1517150v2/024168-0005
under state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds
by the Remarketing Agent; and
(H) Based on the information made available to the City Attorney,
and without having undertaken to determine independently or assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Reoffering Memorandum,
nothing has come to its attention which would lead it to believe that the Reoffering Memorandum as
of its date and as of the Closing Date (excluding therefrom financial statements and other statistical
data, information regarding DTC and its book entry only system, CUSIP numbers, prices and yields
for the Bonds and any other information provided by the Remarketing Agent, as to which no view
need be expressed) contained or contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(xii) An opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, as Disclosure Counsel to the Authority and the City, dated the Closing Date and
addressed to City, Authority and the Remarketing Agent,to the effect that, based on the information
made available to it in its role as Disclosure Counsel, without having undertaken to determine
independently the accuracy, completeness or fairness of the statements contained in the Reoffering
Memorandum, but on the basis of their participation in the above-mentioned conferences (which did
not extend beyond the date of the Reoffering Memorandum), and in reliance thereon and on the
records, documents, certificates and matters mentioned above, such counsel advises the Remarketing
Agent as a matter of fact and not opinion that, during the course of such counsel's role as Disclosure
Counsel with respect to the Bonds, no facts came to the attention of the attorneys in such firm
rendering legal services in connection with such role which caused them to believe that the
Reoffering Memorandum as of its date (except for any CUSIP numbers, financial, accounting,
statistical, economic or demographic data or forecasts, numbers, charts, tables, graphs, estimates,
projections, assumptions or expressions of opinion, any information about The Depository Trust
Company or its book-entry system, litigation, ratings, rating agencies or underwriting, and
Appendices A, B, D, E and F included or referred to therein, which such counsel shall expressly
exclude from the scope of this paragraph and as to which such counsel shall express no opinion or
view)contained any untrue statement of a material fact or omitted to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(xiii) An opinion of counsel to the Trustee addressed to the Remarketing
Agent and dated the Closing Date, in form and substance satisfactory to the Remarketing Agent and
to Bond Counsel;
(xiv) A certificate, dated the Closing Date, signed by a duly authorized
official of the Trustee in form and substance satisfactory to the Remarketing Agent;
(xv) A copy of the executed Blanket Issuer Letter of Representations by
and between the Authority and DTC relating to the book-entry system;
(xvi) A certificate, dated the date of the Preliminary Reoffering
Memorandum, of the City, as required under Rule 15c2-12;
15
DOCSOC/1517150v2/024168-0005
(xvii) A certificate, dated the date of the Preliminary Reoffering
Memorandum, of the Authority, as required under Rule 15c2-12;
(xviii) Certified copies of the JPA Agreement and all amendments thereto
and related certificates issued by the Secretary of State of the State;
(xix) A certified copy of the general resolution of the Trustee authorizing
the execution and delivery of certain documents by certain officers of the Trustee, which resolution
authorizes the execution and delivery of the Indenture and the authentication and delivery of the
Bonds by the Trustee;
(xx) Evidence of insurance as required by the Lease Agreement; and
(xxi) Such additional legal opinions, certificates, proceedings, instruments
or other documents as Bond Counsel or the Remarketing Agent may reasonably request.
Section 9. [Reserved]
Section 10. Expenses. Whether or not the transactions contemplated by this Remarketing
Agreement are consummated, the Remarketing Agent shall be under no obligation to pay, and the
Authority shall pay only from the proceeds of the Bonds, but only as the Authority and such other
parry providing such services may agree, all expenses and costs of the Authority and the City
incident to the performance of their obligations in.connection with the authorization, execution, sale
and delivery of the Bonds to the Remarketing Agent, including, without limitation, printing costs,
rating agency fees and charges, initial fees of the Trustee, including fees and disbursements of their
counsel, if any, fees and disbursements of Bond Counsel and other professional advisors employed
by the Authority or the City, costs of preparation, printing, signing, transportation, delivery and
safekeeping of the Bonds and for expenses (included in the expense component of the spread)
incurred by the Remarketing Agent on behalf of City's employees which are incidental to
implementing this Remarketing Agreement, including, but not limited to, meals, transportation,
lodging, and entertainment of those employees. The Remarketing Agent shall pay all out-of-pocket
expenses of the Remarketing Agent, including, without limitation, the fees and expenses of its
counsel, advertising expenses,the California Debt and Investment Advisory Commission fee, CUSIP
Services Bureau charges, regulatory fees imposed on new securities issuers and any and all other
expenses incurred by the Remarketing Agent in connection with the public offering and distribution
of the Bonds. Certain payments may be in the form of inclusion of such expenses in the expense
component of the Remarketing Agents' discount.
Section 11. Notices. Any notice or other communication to be given to the Remarketing
Agent under this Remarketing Agreement may be given by delivering the same in writing to 10866
Wilshire Boulevard, Suite 1650, Los Angeles, California 90024, Attention: L ]. All notices or
communications hereunder by any party shall be given and served upon each other party. Any notice
or communication to be given the Authority under this Remarketing Agreement may be given by
delivering the same in writing to the City of Diamond Bar Public Financing Authority, c/o City of
Diamond Bar, 21825 Copley Drive, Diamond Bar, California 91765, Attention: City Manager. Any
notice or communication to be given the City under this Remarketing Agreement may be given by
delivering the same in writing to the City of Diamond Bar, 21825 Copley Drive, Diamond Bar,
California 91765,Attention: City Manager.
16
DOC SOC/1517150x2/024168-0005
. . ..... ._ .. .. .. .
Section 12. Parties in Interest. This Remarketing Agreement is made solely for the
benefit of the Authority, the City and the Remarketing Agent (including the successors or assigns
thereof) and no other person shall acquire or have any right hereunder or by virtue hereof. All
representations, warranties and agreements of the Authority and the City in this Remarketing
Agreement shall remain operative and in full force and effect regardless of any investigation made by
or on behalf of the Remarketing Agent and shall survive the delivery of and payment for the Bonds.
.Section 13. Severability. In case any one or more of the provisions contained herein
shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof.
Section 14. Counterparts. This Remarketing Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
DOCSOC/1517150x2/024168-0005
Section 15. Governing Law. This Remarketing Agreement shall be governed by the
laws of the State.
E.J.DE LA ROSA&CO.,INC.
By:
Title: Authorized Officer
Accepted as of the date first stated above:
CITY OF DIAMOND BAR
By:
Its: City Manager
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
By:
Its: Chair
18
DOCSOC/1517150v2/024168-0005
EXHIBIT A
$11,885,000
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
FIXED RATE LEASE REVENUE BONDS,2002 SERIES A
(COMMUNITY/SENIOR CENTER PROJECT)
MATURITY SCHEDULE
Maturity
Date Principal
(July 1) Amount Interest Rate Yield
2012 $320,000 % %
2013 335,000
2014 350,000
2015 365,000
2016 385,000
2017 400,000
2018 420,000
2019 440,000
2020 460,000
2021 485,000
2022 505,000
2023 530,000
2024 555,000
2025 580,000
2026 610,000
2027 635,000
2028 670,000
2029 700,000
2030 730,000
2031 765,000
2032 805,000
2033 840,000
A-1
DOCSOC/1517150v2/024168-0005
i
( Stradling Yocca Carlson:&Rauth
o Draft of 10/ /Il
0PRELIMINARY REOFFERING MEMORANDUM DATED NOVEMBER ,2011
a
° NOT A NEW ISSUE—BOOK-ENTRY ONLY RATING: S&P:
to � (See the caption"RATING")
-fl o Fulbright&Jaworski L.L.P,Los Angeles,California,acting as prior bond counsel,previously opined that under existing law,interest on the Bonds is
vc exempt frorn personal income taxes of the State of California and, assuming compliance with the tax covenants described herein, interest on the Bonds is
Jexcluded pursuant to section 103(a)of the Internal Revenue Code of 1986 from the gross income of the owners thereoffor federal income tax purposes and is not
an item of tax preference for purposes of the federal alternative minimum tax. See, however, the caption "TAX EXEMPTION"regarding certain other tax
oy considerations, Stradling Yocca Carlson&Rauth, a Professional Corporation,Newport Beach, California,Bond Counsel,has made no attempt to update or
0
reaffirm the previously rendered opinion of Fulbright&Jaworski L.L.P.since the date thereof.
o c $11,885,000
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
FIXED RATE LEASE REVENUE BONDS,2002 SERIES A
0
(COMMUNITY/SENIOR CENTER PROJECT)
-6114 Dated: Date of Initial Delivery Due: July 1,2033
W This Reoffering Memorandum amends,supplements and restates the Official Statement dated December 18,2002.
a p; The Bonds were originally issued on December 19, 2002 in the aggregate principal amount of$13,755,000. Since the date of their initial
aissuance, the Bonds have borne interest at a Weekly Rate and the regularly scheduled payments of principal and interest on the Bonds have been
❑ payable from the proceeds of draws upon an irrevocable direct pay letter of credit issued by Union Bank, N.A.,formerly known as Union Bank of
Q California,N.A.
On December],2011,the Bonds will be subject to mandatory tender. The purchase price of the Bonds will be paid from the proceeds of a draw
upon the Union Bank,N.A. letter of credit. Thereafter, the Union Bank, N.A. letter of credit will be terminated and Union Bank, N.A. will have no
o further liabilityfor payments of the principal of,interest on and purchase price of Bonds to be made after December 1,2011.
On December 1,2011,the interest rate on the Bonds will be converted from a Weekly Rate to a Fixed Rate and the Bonds will be remarketed in a
i Fixed Rate.
on
The City of Diamond Bar Public Financing Authority Variable Rate Lease Revenue Bonds,2002 Series A(Community/Senior Center Project)were
' originally issued by the Authority under an Indenture,dated as of December 1,2002,by and between the Authority and Union Bank,N.A.,formerly known as
0 0 ` Union Bank of California, N.A., as trustee. The proceeds of the Bonds were used: (i)to finance a community/senior center project and other public
improvements within the City;(ii)to fund capitalized interest on the Bonds through June 1,2004;(iii)to purchase an interest rate cap on the Bonds;and(iv)to
pay costs of issuance of the Bonds.
o The Bonds were issued as fully registered bonds,registered in the name of Cede&Co.as nominee of The Depository Trust Company,New York,
c . New York,and are available to ultimate purchasers in Authorized Denominations as described herein under the book-entry system maintained by DTC. Ultimate
a o purchasers of Bonds will not receive physical certificates representing their interest in the Bonds. Interest on the Bonds will be payable on July 1,2012 and each
•g a+ January I and July 1 thereafter. The Trustee will make payments of the principal of,premium,if any,and interest on the Bonds directly to DTC,or its nominee,
•ig Cede&Co.,so long as DTC or Cede&Co,is the registered owner of the Bonds. Disbursements of such payments to the Beneficial Owners of the Bonds is the
c responsibility of DTC's Participants and Indirect Participants,as more fully described herein. See Appendix D—"BOOK-ENTRY ONLY SYSTEM."
° o The Bonds are subject to optional redemption and mandatory redemption from Net Proceeds as described herein.
The Authority has leased certain real property designated for the Project from the City of Diamond Bar pursuant to a Site Lease, dated as of
December 1,2002,by and between the Authority and.the City,and has leased the Site and improvements to be constructed thereon,including the Project,back to
:F the City pursuant to a Lease Agreement,dated as of December 1,2002,by and between the Authority and the City. Under the Lease,the City will pay to the
° Authority certain Base Rental Payments in amounts equal to the scheduled debt service on the Bonds. Pursuant to the Indenture and an Assignment Agreement,
dated as of December 1,2002,by and between the Authority and the Trustee,the Authority will assign its right to receive the Base Rental Payments to the
oTrustee for the benefit of fire Owners of the Bonds.
o = The Bonds are special limited obligations of the Authority secured by and payable solely from Revenues,consisting primarily of(i)all Base Rental
Payments payable by the City under the Lease(including prepayments);(ii)any proceeds of Bonds originally deposited with the Trustee and all moneys on
b ° deposit in the funds and accounts established under the Indenture; (iii)investment income with respect to such moneys held by the Trustee; and (iv)any
insurance proceeds or condemnation awards received by or payable to the Trustee with respect to the Leased Property,including rental interruption insurance.
° See the caption"SECURITY FOR THE BONDS"
•'~ The City is required under the Lease to make Base Rental Payments in each year in consideration for the use and occupancy of the Leased Property
r.o w o from any source of legally available funds,and in an amount sufficient to pay the annual principal of and interest on the Bonds. The City's obligation to make
Base Rental Payments is subject to abatement in the event of substantial interference with the use and possession of all or a part of the Leased Property.
b See the caption"RISK FACTORS—Abatement." The City has covenanted under the Lease to take such action as may be necessary to include and maintain
o all Base Rental Payments in its annual budget and to make the necessary appropriations therefor,subject to such abatement.
THE BONDS ARE NOT A DEBT OF THE CITY,THE STATE OF CALIFORNIA OR ANY OF ITS POLITICAL SUBDIVISIONS (OTHER
THAN THE AUTHORITY),AND NONE OF THE CITY,THE STATE OF CALIFORNIA OR ANY OF ITS POLITICAL SUBDIVISIONS(OTHER THAN
d > THE AUTHORITY)IS LIABLE THEREFOR. THE BONDS ARE SPECIAL LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM
y REVENUES,CONSISTING PRIMARILY OF BASE RENTAL PAYMENTS PAID BY THE CITY PURSUANT TO THE LEASE AND AMOUNTS HELD
.t4 .� IN CERTAIN FUNDS AND ACCOUNTS ESTABLISHED UNDER THE INDENTURE. THE OBLIGATION OF THE CITY TO MAKE BASE RENTAL
b PAYMENTS DOES NOT CONSTITUTE AN OBLIGATION FOR WHICH THE CITY IS OBLIGATED TO LEVY OR PLEDGE ANY FORM OF
8 TAXATION OR FOR WHICH THE CITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION. THE OBLIGATION OF THE CITY TO MAKE
o w BASE RENTAL PAYMENTS DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY, THE STATE OF CALIFORNIA OR ANY OF ITS
o i POLITICAL SUBDIVISIONS WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION.
(U 44 This cover page contains certain information for quick reference only. It is not a summary of this issue. Investors must read the entire Reoffering
2p� o Memorandum to obtain information essential to make an informed investment decision.
bo gq .8 Certain legal matters related to this Reoffering Memorandum will be passed upon by Stradling Yocca Carlson&Routh,a Professional Corporation,
oBond Counsel. Certain legal matters will be passed upon for the Authority and the City by the City Attorney of the City of Diamond Bar,and for the Trustee by
oits counsel. The Bonds are available through the facilities of The Depository Trust Company. is serving as Remarketing Agent and will
0c remarket the Bonds in a Fixed Rate on December 1,2011 following their mandatory tender. It is anticipated that the Fixed Rate Bonds will be available for
Q> delivery through the book-entry system of the DTC in New York New York on or about December 1,2011.
[Remarketing Agent]
Dated: November_,2011
H o q r
DOCSOC/1509560v6/024168-0005
No dealer, broker, salesperson or other person has been authorized by the Authority, the City or the
Remarketing Agent to give any information or to make any representations in connection with the offer or sale
of the Bonds other than those contained herein and, if given or made,such other information or representations
must not be relied upon as having been authorized by the Authority,the City or the Remarketing Agent. This
Reoffering Memorandum does not constitute an offer to sell or the solicitation of an offer to buy nor shall there
be any sale of the Bonds by a person in any jurisdiction in which it is unlawful for such person to make such
an offer,solicitation or sale.
The City maintains a website. However, the information presented there is not part of this Reoffering
Memorandum and should not be relied upon in making an investment decision with respect to the Bonds.
This Reoffering Memorandum is not to be construed as a contract with the purchasers or owners of the
Bonds. Statements contained in this Reoffering Memorandum which involve estimates,forecasts or matters of
opinion, whether or not expressly so described herein, are intended solely as such and are not to be construed
as representations of fact. This Reoffering Memorandum, including any supplement or amendment hereto, is
intended to be deposited with a nationally recognized municipal securities depository.
The Remarketing Agent has provided the following sentence for inclusion in this Reoffering
Memorandum:
The Remarketing Agent has reviewed the information in this Reoffering
Memorandum in accordance with, and as a part of, its responsibilities to
investors under the federal securities laws as applied to the facts and
circumstances of this transaction, but the Remarketing Agent does not
guarantee the accuracy of completeness of such information.
The information set forth herein has been obtained from sources which are believed to be reliable.
The information and expressions of opinion herein are subject to change without notice and neither the
delivery of this Reoffering Memorandum nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of the Authority, the City or any other parties
described herein since the date hereof. All summaries of the Bond documents or other documents are made
subject to the provisions of such documents respectively and do not purport to be complete statements of any
or all of such provisions. Reference is hereby made to such documents on file with the City for further
information in connection therewith.
IN CONNECTION WITH THE OFFERING OF THE BONDS, THE REMARKETING AGENT
MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICE OF SUCH BONDS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
THE BONDS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED,IN RELIANCE UPON AN EXEMPTION CONTAINED IN SUCH ACT. THE BONDS HAVE
NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE.
DOCSOC/1509560v6/024168-0005
TABLE OF CONTENTS
Paye Page
INTRODUCTION.....................................................3 Investment of Funds.............................................27
Authorization.........................................................3 Secondary Market................................................27
Use of Proceeds......................................................3 Loss of Tax Exemption........................................28
Security for the Bonds............................................4 State Budget.........................................................28
No Reserve Fund....................................................4 CONSTITUTIONAL AND STATUTORY
Further Information................................................4 LIMITATIONS ON TAXES AND
THEBONDS.............................................................4 APPROPRIATIONS................................................32
General Provisions.................................................4 State Initiative Measures Generally.....................32
Trustee...................................................................5 Article XIIIA........................................................33
Debt Service Schedule...........................................5 Article XIIIB..............................................
Redemption............................................................6 Proposition 62 and Proposition 218.....................34
Book-Entry Only System.......................................7 Proposition lA.....................................................35
SECURITY FOR THE BONDS................................8 Proposition 26......................................................36
Revenues................................................................8 Unitary Property...................................................36
Base Rental Payments............................................8 Future Initiatives..................................................36
Insurance................................................................9 THE AUTHORITY.................................................37
Additional Obligations...........................................9 CERTAIN LEGAL MATTERS..............................37
CITY FINANCIAL INFORMATION.....................10 TAX EXEMPTION.................................................37
General.................................................................10 LITIGATION..........................................................39
Budgetary Process................................................10 The Authority.......................................................39
Comparison of General Fund Budget to Actual The City...............................................................39
Performance.........................................................11 FINANCIAL ADVISOR.........................................39
General Fund Financial Summary.......................13 RATING..................................................................39
Tax Receipts.........................................................13 CONTINUING DISCLOSURE...............................39
Sales Taxes..........................................................14 MISCELLANEOUS................................................40
Property Taxes.....................................................15
Tax Levies and Collections..................................16 APPENDIX A CERTAIN ECONOMIC AND
Transient Occupancy Taxes.................................17 DEMOGRAPHIC
Charges for Services............................................18 INFORMATION
Long-Term Obligations........................................18 CONCERNING THE CITY
Direct and Overlapping Bonded Debt..................18 OF DIAMOND BAR...............A-1
Insurance..............................................................20 APPENDIX B AUDITED FINANCIAL
Employees and Labor Relations...........................21 STATEMENTS OF THE
Pension Plan.........................................................21 CITY FOR THE FISCAL
Other Post-Employment Benefits........................22 YEAR ENDED JUNE 30,
Financial Statements............................................24 2010...........................................B-1
RISK FACTORS.....................................................24 APPENDIX C SUMMARY OF PRINCIPAL
Substitution of Leased Property...........................24 LEGAL DOCUMENTS............C-1
Base Rental Payments Not Debt..........................25 APPENDIX D BOOK-ENTRY ONLY
Abatement............................................................25 SYSTEM..................................D-I
Risk of Uninsured Loss........................................25 APPENDIX E PRIOR BOND COUNSEL
Seismic Risks.......................................................26 OPINION..................................E-1
Bankruptcy...........................................................26 APPENDIX F PROPOSED FORM OF
Enforcement of Remedies Under the Lease;No CONTINUING DISCLOSURE
Acceleration.........................................................27 CERTIFICATE.........................F-1
No Liability of Authority to the Owners..............27
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CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
CITY OF DIAMOND BAR
AUTHORITY BOARD OF DIRECTORS
Ron Everett, Chair
Ling-Ling Chang,Vice Chair
Carol Herrera,Director
Jack Tanaka,Director
Steve Tye,Director
CITY COUNCIL
Steve Tye,Mayor
Ling-Ling Chang,Mayor Pro Tem
Ron Everett,Councilmember
Carol Herrera,Councilmember
Jack Tanaka,Councilmember
ADMINISTRATIVE OFFICERS
James DeStefano,Executive Director/City Manager
David A.Doyle,Assistant City Manager
Glenn Steinbrink,Interim Authority Treasurer/Interim Finance Director
Tommye Cribbins, Secretary/City Clerk
Michael Jenkins,City Attorney
SPECIAL SERVICES
Financial Advisor
Fieldman,Rolapp&Associates
Irvine,California
Remarketing Agent
[TO COME]
,California
Bond Counsel and Disclosure Counsel
Stradling Yocca Carlson&Rauth,a Professional Corporation
Newport Beach,California
Trustee
Union Bank,N.A.
Los Angeles,California
DOCSOC/1509560v6/024168-0005
REOFFERING MEMORANDUM
$11,885,000
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
FIXED RATE LEASE REVENUE BONDS,2002 SERIES A
(COMMUNITY/SENIOR CENTER PROJECT)
INTRODUCTION
This Reoffering Memorandum amends, supplements and restates the Official Statement dated
December 18,2002.
The City of Diamond Bar Public Financing Authority Variable Rate Lease Revenue Bonds, 2002
Series A (Community/Senior Center Project) (the "Bonds') were originally issued by the City of Diamond Bar
Public Financing Authority (the "Authority') on December 19, 2002 in the aggregate principal amount of
$13,755,000. Since the date of their initial issuance, the Bonds have borne interest at a Weekly Rate and the
regularly scheduled payments of principal and interest on the Bonds have been payable from the proceeds of
draws upon an irrevocable direct pay letter of credit issued by Union Bank, N.A.,formerly known as Union
Bank of California,N.A.
On December 1, 2011, the Bonds will be subject to mandatory tender. The purchase price of the
Bonds will be paid from the proceeds of a draw upon the Union Bank, N.A. letter of credit. Thereafter, the
Union Bank, N.A. letter of credit will be terminated and Union Bank, N.A. will have no further liability for
payments of the principal of, interest on and purchase price of Bonds to be made after December 1, 2011.
On December 1, 2011, the interest rate on the Bonds will be converted from a Weekly Rate to a Fixed
Rate and the Bonds will be remarketed by (the "Remarketing Agent') in a Fixed Rate,
Authorization
This Reoffering Memorandum, including the cover page and appendices, is provided to furnish
information in connection with the Bonds. This introduction is not a summary of this Reoffering
Memorandum. It is only a brief description of and guide to, and is qualified by, more complete and detailed
information contained in the entire Reoffering Memorandum, including the appendices hereto, and the
documents summarized or described herein. A full review should be made of the entire Reoffering
Memorandum. The offering of Bonds to potential investors is made only by means of the entire Reoffering
Memorandum.
The Bonds were issued under the provisions of the Marks-Roos Local Bond Pooling Act of 1985,
constituting Article 4 of Chapter 5 of Division 7 of Title I(commencing with Section 6584) of the California
Government Code (the "Bond Law"), pursuant to an Indenture, dated as of December 1, 2002 (the
"Indenture"), by and between the Authority and Union Bank, N.A., formerly known as Union Bank of
California,N.A.,as trustee(the"Trustee").
Use of Proceeds
The proceeds of the Bonds were used: (i)to finance a community/senior center project(the "Project")
and other public improvements within the City of Diamond Bar,California(the"City"); (ii)to fund capitalized
interest through June 1, 2004; (iii)to purchase an interest rate cap on the Bonds; and (iv)to pay costs of
issuance of the Bonds.
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DOCSOC/1509560v6/024168-0005
Security for the Bonds
The Authority has leased certain real property designated for the Project (the "Site") from the City
pursuant to a Site Lease, dated as of December 1, 2002 (the"Site Lease"), by and between the Authority and
the City,and has leased the Site and improvements constructed thereon, including the Project(collectively,the
"Leased Property"), back to the City pursuant to a Lease Agreement, dated as of December 1, 2002 (the
"Lease"), by and between the Authority and the City. Under the Lease, the City will pay to the Authority
rental payments(the"Base Rental Payments")in amounts equal to the scheduled debt service on the Bonds.
The Bonds are special obligations of the Authority secured by and payable solely from Revenues,
defined in the Indenture as: (i)all Base Rental Payments payable by the City under the Lease (including
prepayments); (ii)any proceeds of Bonds originally deposited with the Trustee and all moneys on deposit in
the funds and accounts established under the Indenture; (iii)investment income with respect to such moneys
held by the Trustee; and (iv)any insurance proceeds or condemnation awards received by or payable to the
Trustee with respect to the Leased Property, including rental interruption insurance. Under the Lease,the City
is obligated to budget and appropriate from its General Fund amounts sufficient to make Base Rental
Payments. See the caption"SECURITY FOR THE BONDS."
Pursuant to an Assignment Agreement, dated as of December 1,2002(the"Assignment Agreement"),
by and between the Authority and the Trustee, the Authority will assign to the Trustee certain of its rights
under the Lease as additional security for the performance of its obligations under the Bonds and the Indenture,
including its right to receive Base Rental Payments and Additional Rental Payments under the Lease. The
Base Rental Payments and the Additional Rental Payments are to be applied, and the rights so assigned are to
be exercised,by the Trustee as provided in the Indenture.
The obligation of the City to make Base Rental Payments under the Lease is an unsecured obligation
of the City, payable from its General Fund. See the caption "SECURITY FOR THE BONDS." Under the
Lease,the City has covenanted to budget and appropriate sufficient funds to make all payments required to be
made under the Lease, subject only to abatement as provided therein. See the captions "RISK FACTORS—
Base Rental Payments Not Debt'and"RISK FACTORS—Abatement."
No Reserve Fund
The City has not funded a reserve fund in connection with the Bonds.
Further Information
Brief descriptions of the Bonds, the Indenture, the Site Lease,the Lease Agreement, the Assignment
Agreement, the Authority and the City and other information are included in this Reoffering Memorandum.
Such descriptions and information do not purport to be comprehensive or definitive. The descriptions herein
of the Bonds, the Indenture, the Lease and other documents are qualified in their entirety by reference to the
forms thereof. For definitions of certain capitalized terms used herein and not otherwise defined, and a
description of certain terms relating to the Bonds, see Appendix C—"SUMMARY OF PRINCIPAL LEGAL
DOCUMENTS."
THE BONDS
General Provisions
The Bonds are dated December 19, 2002 and will bear interest until their maturity, payable on each
Bond Payment Date.
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DOCSOC/1509560v6/024168-0005
Each Bond will bear interest from the Bond Payment Date next preceding the date on which it is
authenticated unless it is: (a)authenticated after a Record Date and on or before the next Bond Payment Date,
in which event it will bear interest from such Bond Payment Date; or (b)authenticated on or before the first
Record Date, in which event it will bear interest from the Closing Date; provided, however,that if at the time
of authentication of any Bond interest is in default,such Bond will bear interest from the date to which interest
has been paid. The Bonds will bear interest at the Fixed Rate. Interest on the Bonds will be computed upon
the basis of a 360-day year consisting of twelve 30-day months.
Payment of interest with respect to any Bond on any Bond Payment Date or Redemption Date will be
made to the person appearing on the registration books of the Trustee as the Owner thereof as of the Record
Date immediately preceding such Bond Payment Date or Redemption Date,as the case may be,such interest to
be paid by check mailed by first class mail on the Bond Payment Date to such Owner at his address as it
appears on such registration books. Payments of defaulted interest will be paid by check of the Trustee mailed
to the registered Owners as of a special record date to be fixed by the Trustee in its sole discretion, notice of
which will be given to the Owners not less than 10 days prior to such special record date. Payment of interest
represented by the Bonds may, at the option of any Owner of at least$1,000,000 principal amount of Bonds of
a series (such option to be exercised by written request of such Owner to the Trustee), be transmitted by wire
transfer to such Owner to the bank account number in the United States filed with the Trustee prior to the
Record Date for a Bond Payment Date.
The principal payable upon maturity or prior redemption with respect to the Bonds will be payable
upon surrender at the Principal Office of the Trustee, with such principal to be paid by check mailed by the
Trustee on the Bond Payment Date or redemption date by first class mail to each Owner at his address as it
appears on the registration books. Said amounts will be payable in lawful money of the United States of
America. The Trustee is authorized to pay or redeem the Bonds when duly presented for payment at maturity
or on redemption and to cancel all Bonds upon payment thereof.
Upon surrender by the Owner of a Bond for partial redemption at the Principal Office of the Trustee,
payment of such partial redemption of the principal amount of a Bond will be made to such Owner by check
mailed by first class mail to the Owner at his address as it appears on the registration books of the Trustee.
Upon surrender of any Bond redeemed in part only,the Trustee will execute and deliver to the Owner thereof,
at the expense of the City, a new Bond or Bonds of the same series which will be of Authorized
Denominations equal in aggregate principal amount to the unredeemed portion of the Bond surrendered and of
the same interest rate and the same maturity. Such partial redemption will be valid upon payment of the
amount thereby required to be paid to such Owner,and the City,the Authority and the Trustee will be released
and discharged from all liability to the extent of such payment.
Subject to the book-entry only system, Bonds may be exchanged or substituted for or in lieu of
mutilated, lost, stolen or destroyed Bonds by request to the Trustee. The Trustee may require payment of an
appropriate fee and expenses with respect to any such exchange or substitution.
Trustee
Union Bank, N.A., formerly known as Union Bank of California, N.A., Los Angeles, California has
been appointed Trustee for all of the Bonds under the Indenture. The Trustee may be removed or replaced by
the Authority as provided in the Indenture.
Debt Service Schedule
Set forth below is a table of the annual maturities of the Bonds.
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Maturity Date Maturity Date
(July 1) PrincipalAmount (July 1) PrincipalAmount
2012 $320,000 2023 $530,000
2013 335,000 2024 555,000
2014 350,000 2025 580,000
2015 365,000 2026 610,000
2016 385,000 2027 635,000
2017 400,000 2028 670,000
2018 420,000 2029 700,000
2019 440,000 2030 730,000
2020 460,000 2031 765,000
2021 485,000 2032 805,000
2022 505,000 2033 840,000
Redemption
Mandatory Redemption from Net Proceeds. The Bonds are subject to mandatory redemption on any
Bond Payment Date, in whole or in part, from Net Proceeds deposited by the City under the Indenture, which
Net Proceeds the Trustee will deposit in the Lease Prepayment Account of the Redemption Fund, at least 45
days prior to a Bond Payment Date, at a redemption price equal to the principal amount of the Bonds to be
redeemed,together with accrued interest to the date fixed for redemption,without premium.
In the event that amounts remain in the Lease Prepayment Account because such amounts did not
constitute an Authorized Denomination of a Bond,then such amounts will be transferred to the Lease Payment
Account of the Debt Service Fund.
Optional Redemption. The Bonds are subject to optional redemption in whole or in part(in integral
multiples of$5,000) on any Business Day, at the option of the Authority at a redemption price equal to the
principal amount thereof together with accrued interest to the date fixed for redemption and following
premium expressed as a percentage of the redeemed principal amount:
Redemption Date Pr
emium
Ninth anniversary of the Fixed Rate Conversion Date to the day 2
before the tenth anniversary date of the Fixed Rate Conversion Date %
Tenth anniversary of the Fixed Rate Conversion Date to the day 1
before the eleventh anniversary date of the Fixed Rate Conversion Date %
Eleventh anniversary of the Fixed Rate Conversion Date and 0
thereafter %
Selection of Bonds for Redemption. Whenever provision is made in the Indenture for the redemption
of Bonds and less than all Outstanding Bonds are called for redemption, the Trustee will select Bonds for
redemption, from the Outstanding Bonds not previously called for redemption, in Authorized Denominations,
with respect to a mandatory redemption from Net Proceeds on a pro rata basis among maturities and by lot
within a maturity, and in the case of an optional redemption, from such maturities as are designated in a City
Certificate. The Trustee will promptly notify the City and the Authority in writing of the Bonds so selected for
redemption.
Partial Redemption of Bonds. Upon surrender by the Owner of a Bond for partial redemption at the
Principal Office, payment of such partial redemption of the principal amount of a Bond will be made to such
Owner by check mailed by first class mail to the Owner at his address as it appears on the registration books of
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DOCSOC/1509560v6/024168-0005
the Trustee. Upon surrender of any Bond redeemed in part only, the Trustee will execute and deliver to the
Owner thereof, at the expense of the City, a new Bond or Bonds which will be of Authorized Denominations
equal in aggregate principal amount to the unredeemed portion of the Bond surrendered and of the same
interest rate and the same maturity. Such partial redemption will be valid upon payment of the amount thereby
required to be paid to such Owner,and the City,the Authority and the Trustee will be released and discharged
from all liability to the extent of such payment.
Notice of Redemption. When redemption is authorized or required pursuant to the Indenture, the
Trustee will give notice of the redemption of the Bonds. Such notice will specify: (a)that the Bonds or a
designated portion thereof are to be redeemed; (b)the CUSIP numbers and, if less than all of the Bonds of a
maturity are to be redeemed, the serial numbers of the Bonds to be redeemed; (c)the date of redemption;
(d)the place or places where the redemption will be made; (e)the following descriptive information regarding
the Bonds: (i) date; (ii) interest rates; and (iii) stated maturity dates; and (f)that a new Bond in an amount
equal to that portion not so redeemed will be executed by the Trustee and delivered to the Owner in the event
of a partial redemption. Such notice will further state that on the specified date there will become due and
payable upon each Bond to be redeemed, the portion of the principal amount of such Bond to be redeemed,
together with interest accrued to said date, and that from and after such date, provided that moneys therefore
have been deposited with the Trustee, interest with respect to such Bonds to be redeemed will cease to accrue
and be payable.
Notice of such redemption will be mailed by first-class mail, postage prepaid, to the City, to all
municipal Securities Depositories and to at least one national Information Service which the City designates to
the Trustee, and to the respective Owners of any Bonds designated for redemption at their addresses appearing
on the Bond registration books, at least 30 days, but not more than 60 days, prior to the redemption date;
provided that neither failure to receive such notice nor any defect in any notice so mailed will affect the
sufficiency of the proceedings for the redemption of such Bonds, and provided, further, however, that the
Trustee will, on the day it receives notice of redemption by the City, provide telephonic, telegraphic or telex
notice of such notice of redemption to the Remarketing Agent.
Effect of Notice of Redemption. Notice having been given as described above, and the moneys for
the redemption (including the interest to the applicable date of redemption), having been set aside in the
Redemption Fund,the Bonds will become due and payable on said date of redemption, and, upon presentation
and surrender thereof at the Principal Office of the Trustee, said Bonds will be paid at the unpaid principal
price with respect thereto, plus interest accrued and unpaid to said date of redemption.
If, on said date of redemption, moneys for the redemption of all the Bonds to be redeemed, together
with interest to said date of redemption, is held by the Trustee so as to be available therefor on such date of
redemption, and, if notice of redemption thereof has been given as aforesaid, then, from and after said date of
redemption,interest with respect to the Bonds ceases to accrue and become payable. All moneys held by or on
behalf of the Trustee for the redemption of Bonds will be held in trust for the account of the Owners of the
Bonds so to be redeemed.
All Bonds paid at maturity or redeemed prior to maturity pursuant to the provisions of the Indenture
will be canceled upon surrender thereof and delivered to or upon the order of the City.
Book-Entry Only System
The Depository Trust Company, New York, New York("DTC"), acts as securities depository for the
Bonds. The Bonds are registered in the name of Cede& Co. (DTC's partnership nominee), and are available
to ultimate purchasers in denominations of $5,000 or any integral multiple thereof, under the book-entry
system maintained by DTC. Ultimate purchasers of Bonds will not receive physical certificates representing
their interest in the Bonds. So long as the Bonds are registered in the name of Cede& Co., as nominee of
DTC, references herein to the Owners mean Cede& Co., and do not mean the ultimate purchasers of the
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DOCSOC/1509560v6/024168-0005
Bonds. Payments of the principal of,premium,if any,and interest on the Bonds will be made directly to DTC,
or its nominee, Cede& Co., by the Trustee, so long as DTC or Cede& Co. is the registered owner of the
Bonds. Disbursement of such payments to DTC's Participants is the responsibility of DTC and disbursement
of such payments to the Beneficial Owners is the responsibility of DTC's Participants and Indirect
Participants. See Appendix D---"BOOK-ENTRY ONLY SYSTEM."
SECURITY FOR THE BONDS
Revenues
THE BONDS ARE SPECIAL LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE
SOLELY FROM REVENUES, CONSISTING PRIMARILY OF BASE RENTAL PAYMENTS PAID BY
THE CITY PURSUANT TO THE LEASE AND AMOUNTS HELD IN THE FUNDS AND ACCOUNTS
ESTABLISHED UNDER THE INDENTURE. THE OBLIGATION OF THE CITY TO MAKE BASE
RENTAL PAYMENTS DOES NOT CONSTITUTE AN OBLIGATION FOR WHICH THE CITY IS
OBLIGATED TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE CITY HAS
LEVIED OR PLEDGED ANY FORM OF TAXATION. THE OBLIGATION OF THE CITY TO MAKE
BASE RENTAL PAYMENTS DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY, THE
STATE OF CALIFORNIA(THE"STATE") OR ANY OF ITS POLITICAL SUBDIVISIONS WITHIN THE
MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION.
The Indenture provides that, subject to certain rights of the Trustee, the Bonds are secured by a first
lien on and pledge of all of the Revenues and a pledge of moneys in all Funds and Accounts established and
held by the Trustee under the Indenture, including the investments thereof and the proceeds of such
investments. "Revenues" are defined in the Indenture to mean: (i)all Base Rental Payments payable by the
City pursuant to the Lease (including prepayments); (ii)any proceeds of Bonds originally deposited with the
Trustee and all moneys on deposit in the funds and accounts established under the Indenture; (iii)investment
income with respect to such moneys held by the Trustee; and (iv)any insurance proceeds or condemnation
awards received by or payable to the Trustee relating to the Base Rental Payments, including rental
interruption insurance.
Base Rental Payments
As security for the Bonds, the Authority will assign to the Trustee for the payment of the Bonds
certain rights of the Authority in the Lease,including the right to receive the Base Rental Payments to be made
by the City. Under the Lease, the City agrees to make Base Rental Payments for the beneficial use and
occupancy of the Leased Property,and to take such action as is necessary to budget for and to appropriate such
amounts. See Appendix C—"SUMMARY OF PRINCIPAL LEGAL DOCUMENTS"under the caption"THE
LEASE."
The Base Rental Payments are equal to the principal of and interest on the Bonds, and are payable on
the twenty-fifth day of the month immediately preceding each Bond Payment Date. The Base Rental
Payments will be paid by the City to the Trustee for the benefit of the Owners of the Bonds.
The City's obligation to make Base Rental Payments is subject to abatement in the event of substantial
interference with the use and possession of all or a part of the Leased Property. See the caption "RISK
FACTORS—Abatement."
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DOCS OC/1509560v6/024168-0005
Insurance
The Lease requires the City to maintain insurance coverage on the Leased Property, consisting of the
following:
(1) insurance against loss or damage to the Leased Property or such structure or item of furniture
or equipment caused by fire or lightning,with an extended coverage endorsement and vandalism and malicious
mischief insurance, which such extended coverage insurance will, as nearly as practicable, cover loss or
damage by explosion, windstorm,riot, aircraft,vehicle damage,smoke and such other hazards as are normally
covered by such insurance. The insurance required by this paragraph will be in an amount equal to the
replacement cost(without deduction for depreciation)of improvements located or to be located on the Leased
Property but will not be less than the principal amount of the Outstanding Bonds (except that such insurance
may be subject to deductible clauses of not to exceed 10%of the amount of any one loss);
(2) rental interruption insurance against the Authority's loss of income due to events giving rise
to the right of abatement on the part of the City under the Lease in an amount sufficient to pay the total Base
Rental payments attributable to the Leased Property for a 24 month period (measured by the Base Rental
payments for the 24 months following the month in which the insurance commences and assuming for such
purpose that Interest Components will be payable at a fixed rate of 8%per annum); provided that the amount
of such insurance need not exceed the total remaining Base Rental Payments attributable to the Leased
Property;
(3) workers' compensation insurance covering all employees working in or on the Leased
Property, in the same amount and type as other workers' compensation insurance maintained by the City for
similar employees doing similar work; and the City will also require any other person or entity working in or
on the Leased Property to carry the foregoing amount of workers' compensation insurance;
(4) a standard comprehensive public entity liability insurance policy or policies in protection of
the City, the Authority, and their respective directors, officers and employees and the Trustee, indemnifying
and defending such parties against all direct or contingent loss or liability for damages for personal injury,
death or property damage occasioned by reason of the possession, operation or use of the Leased Property.
Such public liability and property damage insurance will be in the form of a single limit policy in the amount
of not less than three million dollars ($3,000,000), subject to a deductible clause of not to exceed $250,000,
covering all such risks;and
(5) a CLTA standard coverage leasehold policy of title insurance on the Leased Property in an
amount at least equal to the initial aggregate amount of the principal amount of Base Rental Payments issued
by a company of recognized standing duly authorized to issue the same. The title policy or policies will insure
the City's leasehold estate hereunder with respect to the Leased Property, subject only to Permitted
Encumbrances.
Notwithstanding the foregoing,the Lease does not require the City to maintain more insurance than is
specifically referred to above or any policies of insurance other than standard policies of insurance with
standard deductibles offered by reputable insurers at a reasonable cost on the open market. See Appendix C—
"SUMMARY OF PRINCIPAL LEGAL DOCUMENTS"under the caption"THE LEASE—Insurance."
Additional Obligations
Other than refunding bonds,the Authority may not issue bonds,notes or indebtedness that are payable
out of Revenues in whole or in part. See Appendix C—"SUNEVIARY OF PRINCIPAL LEGAL
DOCUMENTS"under the caption"THE INDENTURE—Additional Obligations."
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However, the City may incur additional lease or other obligations payable from the City's General
Fund without the consent of or notice to the Owners of the Bonds. See the caption"RISK FACTORS—Base
Rental Payments Not Debt."
CITY FINANCIAL INFORMATION
General
The City is located in Los Angeles County(the "County")approximately 30 miles east of downtown
Los Angeles. The estimated population of the City as of January 1, 2011 was 55,766 and the City occupies a
land area of approximately 15 square miles. The City was incorporated in 1989 under the general laws of the
State. The City has a council-manager form of government. There are five City Council Members who serve
overlapping terms of four years, and the City Council, in turn, selects one of the City Council Members to
serve as Mayor for one year. The legislative body selects a City Manager to administer the affairs of the City.
The City Manager is responsible for implementing the policies, ordinances and directives of the City Council
and for overseeing the daily operations of the City. The City contracts for many public services, including
water service from the Walnut Valley Water District,police services from the Los Angeles County Sheriff,fire
services from the Los Angeles County Fire Department, library services from the County of Los Angeles,
highway and street maintenance,landscape maintenance,building and safety inspection and other services.
On September 3, 2010,the City closed escrow and took possession of a 57,000 square foot two story
office building located at 21810 Copley Drive. The purchase price for the building was$9,917,100. The City
cash funded the purchase through the use of its substantial financial reserves. Subsequent to the purchase the
City explored the idea of reimbursing itself the purchase price and the cost of any improvements through the
issuance of long term debt. However,after a careful and thoughtful analysis of the long term financing options
and the associated costs, the City Council decided not to finance the acquisition and construction costs and to
draw down upon approximately$30 million of reserves to fund the project. The City is currently constructing
a City Hall on the second floor of the building at a cost of$3.6 million, including contingencies and furniture,
fixtures and equipment. In addition,the City has partnered with the Los Angeles County Board of Supervisors
and the Los Angeles County Librarian to construct an approximate 24,000 square foot library on the first floor.
The cost of the new library is approximately $3.6 million, which will be initially funded by the City. The
County of Los Angeles has agreed to reimburse the City for all costs associated with the library. City Hall
construction is expected to be completed in December 2011 and the doors of the new City Hall will be open to
the public January 3,2012. The construction of the library is expected to be completed in April 2012 with the
library open to the public in June 2012.
See Appendix A—"CERTAIN ECONOMIC AND DEMOGRAPHIC INFORMATION
CONCERNING THE CITY OF DIAMOND BAR"for additional information relating to the City.
Accounting Policies
The accounts of the City are organized on the basis of funds, each of which is considered a separate
accounting entity with a self-balancing set of accounts established for the purpose of carrying on specific
activities or attaining certain objectives in accordance with special regulations,_restrictions or limitations.
When both restricted and unrestricted resources are combined in a fund, expenses are considered to be paid
first from restricted resources and then from unrestricted resources.
Budgetary Process
The fiscal year of the City consists of the twelve month period ending on the last day of June of each
year (the "Fiscal Year"). The City adopts an annual budget prepared on the modified accrual basis of
accounting for its governmental funds and on the accrual basis of accounting for its proprietary funds. The
City Manager or a designee is authorized to transfer budgeted amounts between the accounts of any
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department or funds that are approved by the City Council. Prior year appropriations lapse unless they are
approved for carryover into the following Fiscal Year. Expenditures may not legally exceed appropriations at
the department level.
The Fiscal Year 2012 budget was adopted by the City Council on June 7,2011.
Comparison of General Fund Budget to Actual Performance
The following table summarizes the City's adopted General Fund budgets for Fiscal Years 2011 and
2012 and sets forth actual revenues and expenditures for Fiscal Year 2010 for purposes of comparison.
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TABLE 1
CITY OF DIAMOND BAR
General Fund
Comparison of Budgeted and Actual Resources,Appropriations and Fund Balances
For Fiscal Years 2010,2011 and 2012
Fiscal Year 2010 Fiscal Year 2011 Fiscal Year 2011 Fiscal Year 2012
ESTIMATED RESOURCES: Actual Adjusted Projected Requested
Property Taxes $ 3,804,406 $ 3,840,000 $ 3,802,120 $ 3,831,820
Other Taxes 4,754,604 5,222,000 5,434,140 5,482,000
State Subventions 4,632,803 4,610,000 4,722,770 4,780,280
From Other Agencies 254,215 10,000 - -
Fines and Forfeitures 607,936 523,500 495,300 495,800
Current Services Charges 1,495,905 1,872,628 1,652,498 1,776,007
Use of Money&Property 1,206,433 1,192,200 1,148,610 1,161,700
Transfers-In Other Funds 1,371,877 1,401,638 1,383,001 1,470,275
Forward Balance Reserves 1,424,502 12,427,964 10,224,491 4,071,529
Total Estimated Resources $ 19,552,681 $ 31,099,930 $ 28,862,930 $ 23,069,411
APPROPRIATIONS
City Council $ 158,566 $ 164,160 $. 159,250 $ 161,962
City Attorney 149,700 265,000 250,000 265,000
City Manager/City Clerk 1,037,040 987,190 965,340 1,112,675
Finance 415,649 402,206 396,506 413,097
Human Resources 173,767 206,280 160,380 189,346
Information Systems 820,219 746,485 743,240 740,708
General Government 1,142,457 1,208,059 1,242,240 1,160,066
Civic Center - 12,446,255 10,106,685 4,039,243
Public Information 528,795 515,470 515,470 516,514
Economic Development 133,746 195,426 141,600 198,669
Law Enforcement 5,321,706 5,549,800 5,354,250 5,705,439
Volunteer Patrol 5,082 9,250 5,500 7,750
Fire 7,359 11,506 7,500 7,500
Animal Control 126,716 131,780 131,780 134,645
Emergency Preparedness 50,085 76,140 56,550 64,040
Community Development/Planning 463,154 517,770 485,620 46,341
Building&Safety 304,351 400,000 399,500 341,201
Neighborhood Improvement 285,351 310,750 306,750 318,797
Community Services Administration 301,330 282,590 286,555 316,865
Diamond Bar Center-Operations 827,748 878,500 669,250 833,504
Park Operations 1,010,773 912,226 925,326 896,382
Recreation 1,580,727 1,675,955 1,736,375 1,758,677
Public Works-Administration 679,870 580,850 513,500 592,437
Engineering 361,450 284,850 286,975 293,403
Road Maintenance 1,099,637 1,211,500 1,210,400 1,219,396
Landscape Maintenance 320,387 341,500 358,990 343,390
Transfer-Out Other Funds 1,602,180' 907,877 926,837 498,729
Total Appropriations $ 18,907,845 $ 31,219,309 $ 28,344,569 $ 22,775,776
Excess Resources over Appropriations $ 644,836 $ (119,379) $ 518,361 $ 293,635
Fund Balance Reserves at Beginning of Year 31,576,764 30,797,098 30,797,098 21,090,968
Less Appropriations Carry Over - -
Less Uses of Forward Balance Reserves (1,424,502) (12,427,964,] (10,224,491) (4,071,529)
Estimated Forward Balance Reserves(6/30) 30,797,098 18,249.755 21 090,968 ]7.313.074
Uses of Fund Balance Reserves:
City Hall Purchase(i) - 9,917,000 9,887,685 -
City Hall Expansion/Mov4l) - 2,111,615 - 3,734,412
Prof Services-EIR and Zoning Changes - - - 150,000
Economic Development - 112,500 32,500 112,500
Irrigation Controller System - - - -
Transfer out-LLADS - 71,849 89,306 74,617
Transfer out-Self Insurance Fund - - - _
Transfer out-CIP Fund 1,424,502 215,000 215,000
$ 1,424,502 $ 12,427,964 $ 10,224,491 $ 4,071,529
12
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On September 3,2010,the City purchased a 57,000 square foot building to serve as the new City Hall and library. The City expects to
move into the new City Hall on or before acember 31,2011. See the caption`=General."
Source: City of Diamond Bar Annual Budget Fiscal Year2011-2012.
General Fund Financial Summary
The information contained in the following tables of audited revenues, expenditures and changes in
fiend balances,and assets,liabilities and fund equity is summarized from audited financial statements for Fiscal
Years 2006 through 2010.
TABLE 2
CITY OF DIAMOND BAR
General Fund Revenues,Expenditures and Fund Balances
For Fiscal Years 2006 through 2011
2006 2007 2008 2009 2010 2011(1)
Revenues:
Taxes $ 9,508,757 $ 9,876,760 $10,165,881 $ 9,119,375 $ 8,591,893 $ 9,452,851
Licenses and permits 2,389,149 4,049,701 2,947,476 1,445,324 640,287 801,817
Intergovernmental(Z) 4,449,031 5,204,901 4,611,368 5,279,845 4,854,137 5,096,068
Charges for services -- -- -- -- 1,757,805 1,921,383
Use of money and property -- — -- -- 276,420 115,956
Fines and forfeitures 589,922 546,902 637,484 601,533 607,936 567,575
Miscellaneous 1,758,172 2,161,074 2,169,179 1.811,341 27.868 38,699
Total Revenues $18,695,031 $21,839,338 $20,531,388 $18,257,418 $ 16,756,346 $ 17,994,349
Expenditures:
Current:
General government $ 3,551,659 $ 4,402,235 $ 3,987,656 $ 5,071,860 $ 4,435,858 $ 4,521,007
Public safety 5,395,998 4,865,335 4,927,377 5,375,941 5,510,951 5,560,181
Community development 2,261,816 1,741,686 1,702,734 1,437,457 1,186,608 1,430,217
Parks,recreation and culture 2,613,834 3,475,549 3,714,762 3,673,282 3,591,552 3,632,199
Highways and streets 2,439,740 2,400,023 2,511,382 2,613,656 2,461,342 2,315,566
Capital outlay -- -- -- -- 129,533 10,324,763
Debt service:
Principal retirement -- _ __ __ __
Interest and fiscal charges -- -- _. __ _- --
Total Expenditures $16,263,047 $16,884,828 $16,843,911 $18,172,196 $ 17,315,844 $ 27,783,933
Excess(Deficiency)of Revenues
Over(Under)Expenditures 2.431,984 4,954,510 3.687,477 85.222 _ (559.498) 59,789,584)
Other Financing Sources(Uses):
Transfers in 1,224,783 1,311,707 1,439,832 1,404,842 1,371,877 1,286,961
Transfers out (3,178,790) (2,218,283) (2,659,345) (2.766,040) (1,592,005) (906.155)
Total Other Financing Sources(Uses) (1,954,007) (906,576) (1,219,513) (1,361,198) (220,128) 380,805
Net Change in Fund Balances 477.977 4.047,934 2,467,964 (1,275,976) (779,626) (9,408.779)
Fund Balances,Beginning of Year,as
previously reported 25,935,639 26,413,616 30,461,550 32,929,514 31,653,538 30,797,098
Restatements (76,814)
Fund Balances,Beginning of Year,as restated 31,576,724 30,797,098
Fund Balances,End of Year $26,413,616 $30,461.550 $32.929.514 $31,653,538 $ 30,797,098 $ 21,388,321
Based on estimated unaudited results.
i2,3 Includes property taxes in lieu of vehicle license fees.
Source: City of Diamond Bar Comprehensive Annual Financial Report for the Year Ended June 30,2006,2007,2008,2009 and 2010.
Tax Receipts
Taxes and revenues received by the City include sales and use taxes, property taxes, property transfer
taxes, transient occupancy taxes and other taxes such as business license taxes, franchise taxes and motor
vehicle taxes. Of such taxes, property taxes, sales taxes and franchise taxes constitute the major sources of
General Fund revenues.
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The following table sets forth tax revenues received by the City for Fiscal Years 2009 through 2011
and amounts budgeted for Fiscal Year 2012,by source:
TABLE 3
CITY OF DIAMOND BAR
Tax Revenues by Source
Fiscal Years 2009 through 2012
20090) 2010 ) 2,011 Projected(2) 2012 BudgeP
Property Taxes(4) $ 4,001,276 $ 3,837,288 $ 3,802,120 $ 3,831,820
Sales Tax 3,085,223 3,122,229 3,307,140 3,346,000
Property Transfer Taxes 199,365 259,384 230,000 230,000
Transient Occupancy Taxes 633,075 569,916 591,000 600,000
Franchise Taxes 1,093,039 1,115,980 1,306,000 1,306,000
Total $ 9,011,978 $ 8,904,797 $9,236,260 $9,313,820
(1) Amounts reflect accrual basis of accounting.
(2) Based on estimated unaudited results.
(3) Amounts reflect modified accrual basis of accounting.
(4) Does not include property taxes in lieu of vehicle license fees.
Source: City of Diamond Bar Comprehensive Annual Financial Report for the Year Ended June 30,2010.
Sales Taxes
Sales tax receipts provide one of the largest tax revenue sources for the City, contributing
approximately 18.6% of the total General Fund revenues in Fiscal Year 2010 and approximately 18.4% in
Fiscal Year 2011. A sales tax is imposed on retail sales or consumption of personal property. The Fiscal Year
2011-12 sales tax rate in the City is 8.75%. The State collects and administers the tax, and makes distributions
on taxes within the City as follows:
TABLE 4
CITY OF DIAMOND BAR
Sales Tag Rates
State(General Fund): 6.00%
State(Fiscal Recovery Fund): 0.25
State(Local Revenue Fund): 0.50
State(Local Public Safety Fund): 0.50
Local:
County transportation: 0.25
City and County Operations: 0.75
County(Transportation): 0.50
Total: &.350 o
The allocation of 0.25%sales tax to the payment of economic recovery bonds became effective July 1,
2004, as part of the "triple flip" in the State fiscal year 2004-05 budget and pursuant to Proposition 57,
approved by the voters on March 2, 2003. Proposition 57 authorized the issuance of up to $15 billion of
economic recovery bonds secured by the 0.25% sales tax allocation. Prior to July 1, 2004, this sales tax was
available to cities and counties for general purposes. Under the legislation implementing the "triple flip," the
lost sales tax is replaced by increased property tax revenues equal to the lost sales tax revenues.
Senate Constitutional Amendment No.4, approved by the voters as Proposition IA in the November
2004 election, amended the State Constitution to, among other things, reduce the State Legislature's authority
14
DOCSOC/1509560v6/024168-0005
over local government revenue sources by restricting the State from lowering the local sales tax rate or
changing the allocation of local sales tax revenues without meeting certain conditions.
The State's actual administrative costs with respect to the portion of sales taxes allocable to the City
are deducted before distribution and are determined on a quarterly basis.
Property Taxes
Property taxes are currently the City's largest revenue source, accounting for approximately 49.3%
and 47.3% (including property taxes in lieu of vehicle license fees) of General Fund revenue in Fiscal Years
2010 and 2011,respectively. The City has budgeted that property tax revenues will increase by approximately
0.78%in Fiscal Year 2012.
Assessed Valuation. The valuation of property in the City is established by the Los Angeles County
Assessor, except for public utility property, which is assessed by the State Board of Equalization. Property is
assessed at 100%of actual market value and tax rates are expressed in terms of the ratio of"full cash value"to
actual market value. During each County fiscal year, property which is improved or with respect to which a
change in ownership occurs, is subject to reassessment to the then current market value. Property that is not
subject to reassessment is subject to a maximum 2%increase per year. Such increases in assessed value during
each County fiscal year are compiled as the County's "supplemental roll," and supplemental taxes are levied
on such increases in assessed value during the County's fiscal year.
Two types of State-reimbursed exemptions affect the valuation of property. The first currently
exempts 100% of the full value of business inventories from taxation. The second exemption currently
provides a credit of$7,000 of the full value of an owner-occupied dwelling for which application has been
made to the County Assessor. Revenue estimated to be lost to local taxing agencies due to the above
exemptions has in the past been reimbursed from State sources. Reimbursement is based upon total taxes due
upon such exemption values and therefore is not reduced by any estimated amount of actual delinquencies.
The following table sets forth assessed valuations in the City for Fiscal Years 2003 through 2011.
TABLE 5
CITY OF DIAMOND BAR
Assessed Value and Estimated Actual Values of Taxable Property
Taxable Property
Fiscal Years 2003 through 2011
Fiscal
Year
Ended Net Taxable Tax %
June 30 Secured Unsecured Nonunitary(l) Values Exemptions Change
2003 4,618,700,097 69,981,865 122,697 4,688,804,659 44,188,829 7.60
2004 5,003,437,689 77,407,924 140,122 5,080,985,735 47,621,182 8.36
2005 5,370,469,396 76,173,121 174,846 5,446,817,363 39,831,091 7.20
2006 5,791,564,163 83,223,023 163,090 5,874,950,276 51,408,286 7.86
2007 6,331,041,269 90,751,985 134,088 6,421,927,342 28,682,577 9.31
2008 6,784,318,579 109,704,881 - 6,894,023,460 39,859,238 7.35
2009 7,102,450,158 99,170,064 - 7,201,620,222 48,909,164 4.46
2010 7,004,770,702 90,528,493 - 7,095,299,195 66,422,679 (1.48)
2011 7,182,975,793 81,443,401 - 7,264,419,194 70,706,628 2.38
Prior to 2007,all State Board of Equalization nonunitary railroad properties were taxed at the tax rate area level.
Source: Los Angeles County Auditor/Controller,HdL Coren&Cone.
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Ad Valorem Property Taxes. Taxes are levied for each Fiscal Year on taxable real and personal
property which is situated in the City as of the preceding January 1. For assessment and collection purposes,
property is classified either as "secured" or "unsecured," and is listed accordingly on separate parts of the
assessment roll. The "secured roll" is that part of the assessment roll containing State-assessed property, the
taxes on which are a lien on real property sufficient, in the opinion of the County Assessor,to secure payment
of the taxes. Other property is assessed on the"unsecured roll."
The following table sets forth the largest taxpayers located within the City in terms of their secured
assessed value for Fiscal Year 2011.
TABLE 6
CITY OF DIAMOND BAR
Principal Property Taxpayers
Fiscal Year 2011
Fiscal Year 2011 Percentage of Total
Taxpayer Assessed Valuation Net Assessed Valuation
Country Hills Holding LLC $ 45,568,348 0.64%
DB Gateway Corporate Inc. 43,000,000 0.60
VIF II Hampton at Diamond Bar LLC 37,790,169 0.53
CRP 2 Holdings CC LP 32,100,000 0.45
Target Corporation 26,278,064 0.37
Muller Rock 2 Gateway 24,933,653 0.35
Behringer Harvard Western Portfolio LP 23,200,000 0.33
Gateway Corporate Center LP 17,600,000 0.25
Margaret M. Tam Trust 17,193,362 0.24
2936 Main Street Associates LLC 17,061,890 0.24
Total X284.725.486 AXON
Source: Los Angeles County Assessor,HdL Coren&Cone.
Tax Levies and Collections
Property taxes on the secured roll are due in two installments,on November 1 and February 1 of each
Fiscal Year. If unpaid, such taxes become delinquent on December 10 and April 10, respectively, and a 10%
penalty attaches to any delinquent payment. On July 1, an additional 1.5% per month is levied on
delinquencies for five years. In addition, property on the secured roll with respect to which taxes are
delinquent is sold to the State on or about June 30 five years after the delinquency occurs. Such property may
thereafter be redeemed by payment of the delinquent taxes and the delinquency penalty, plus a redemption
penalty of 1%per month to the time of redemption. If taxes are unpaid for a period of five years or more,the
property is deeded to the State and then is subject to sale by the County Tax Collector.
Property taxes on the unsecured roll are due as of the March 1 lien date and become delinquent, if
unpaid, on August 31. A 6% penalty attaches to delinquent taxes on property on the unsecured roll, and an
additional penalty of 1%per month begins to accrue beginning each November 1.
Beginning in State fiscal year 1978-79, Proposition 13 and its implementing legislation shifted the
function of property taxation primarily to counties,except for levies to support prior voted debt,and prescribed
how levies on countywide property values are to be shared with local taxing entities within each county.
Property taxes are collected on the County tax roll on behalf of all taxing agencies in the County,
including the City. The taxes collected are allocated on the basis of a formula established by State law. Under
this formula,the City and all other taxing entities receive a base year allocation plus an allocation on the basis
16
DOCSOC/1509560v6/024168-0005
of "situs" growth in assessed value (new construction, change of ownership and inflation) among the
jurisdictions which serve the tax rate areas within which the growth occurs. Tax rate areas are specifically
defined geographic areas which were developed to permit the levying of taxes for less than county-wide or less
than city-wide special districts.
Certain counties in the State operate under a statutory program entitled Alternate Method of
Distribution of Tax Levies and Collections and of Tax Sale Proceeds (the "Teeter Plan"). Under the Teeter
Plan, local taxing entities receive 100% of their tax levies net of delinquencies, but do not receive interest or
penalties on delinquent taxes collected by the county. The County has not adopted the Teeter Plan, and
consequently the Teeter Plan is not available to local taxing entities within the County, such as the City. The
City's receipt of property taxes is dependent upon actual collections of the property taxes by the County.
Consequently,the City is exposed to the effect of delinquencies in collections of property taxes.
See the caption "CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND
APPROPRIATIONS"for additional information relating to taxation and collection of taxes.
The following table sets forth the secured property tax levies and collections for the City for Fiscal
Years 2001 through 2010.
TABLE 7
CITY OF DIAMOND BAR
Secured Property Tax Levies and Collections
Fiscal Years 2001 through 2010
Fiscal
Year Taxes Levied Collected within the Fiscal Collections in
Ended for the Year of Levy Subsequent
June 30 Fiscal Year Amount %to Levy Fiscal Year(') Total Collections to Date�2)
2001 $2,104,530 $2,027,817 96.35% $106,713 $2,033,335
2002 2,289,208 2,161,417 94.42 127,792 2,261,747
2003 2,474,222 2,376,390 96.05 97,831 2,401,626
2004 2,699,991 2,584,106 95.71 115,884 2,681,937
2005 2,870,810 2,739,911 95.44 130,899 2,812,366
2006 3,107,457 2,800,968 90.14 306,489 3,079,327
2007 3,378,087 3,116,729 92.26 261,359 3,367,552
2008 3,582,055 3,260,073 91.01 321,981 3,575,656
2009 3,781,997 3,458,210 91.44 323,786 3,726,933
2010 3,715,310 3,424,173 92.16 291,137 3,687,298
Reflects collections in stated Fiscal Year for property taxes payable in all previous Fiscal Years.
(Z) Reflects total collections for stated Fiscal Year received to date.
Source: City of Diamond Bar Finance Department;Los Angeles County Auditor-Controller.
Transient Occupancy Taxes
Transient occupancy taxes at a rate of 10%have historically provided a revenue source for the City's
General Fund. Sometimes referred to as a hotel tax, this tax is imposed on occupants for the privilege of
occupying rooms in hotels, motels, inns and other taxed properties. In Fiscal Years 2010 and 2011, transient
occupancy taxes accounted for approximately 3.4%and 3.6%,respectively,of General Fund revenues.
17
DOCSOC/1509560v6/024168-0005
Charges for Services
The City provides various services which generate revenue for its General Fund. Services provided
by the City include building construction and planning fees,engineering encroachment inspections,police fees
such as fingerprinting,police reports, and towing,.as well as a number of recreation programs. In Fiscal Years
2010 and 2011, charges for services accounted for approximately 10.4% and 10.7%, respectively, of General
Fund revenues.
Long-Term Obligations
As of June 30,2010,the Bonds constituted the City's sole long-term obligation.
Direct and Overlapping Bonded Debt
The statement of direct and overlapping debt(the "Debt Report") set forth below was prepared as of
June 30, 2011. The Debt Report is included for general information purposes only. The City takes no
responsibility for its completeness or accuracy.
TABLE 8
CITY OF DIAMOND BAR
Statement of Direct and Overlapping Debt(*
As of June 30,2011
Percent
Gross Bonded Debt Applicable to
Balance City Net Bonded Debt
Direct Debt
146.01 Variable Rate Lease Revenue Bonds,2002 Series A $ 12,190,000 100.000 $ 12,190,000
Total Direct Debt $ 12,190,000
Overlapping DebP
*330.10 METROPOLITAN WATER DISTRICT 107,259,876 0.847 908,565
809.50 MT. SAN ANTONIO CCD DS 2001 S-A 1,130,000 10.808 122,126
809.51 MT.SAN ANTONIO CCD 2001 SERIES 2004B 8,080,000 10.808 873,253
809.52 MT.SAN ANTONIO CCD 2005 REFUNDING BOND 55,835,843 10.808 6,034,511
809.53 MT.SAN ANTONIO CCD 2001,SERIES C 2006 79,461,712 10.808 8,587,898
809.54 MT SAC CD DS 2001,2008 SERIES D 24,602,430 10.808 2,658,930
915.51 POMONA UNIFIED SD DS 2011 SERIES A 45,970,000 19.856 9,127,685
915.57 POMONA UNIFIED DS REFUNDING SERIES 1997 A 28,980,000 19.856 5,754,194
915.62 POMONA USD REFUNDING 2000 SERIES A 17,115,000 19.856 3,398,310
915.64 POMONA USD REFUNDING 2001 SERIES A 17,670,000 19.856 3,508,510.
915.65 POMONA UNIFIED SD DS 2002 SERIES A 7,850,000 19.856 1,558,676
915.66 POMONA UNIFIED SD DS 2002 SERIES B 12,185,000 19.856 2,419,422
915.67 POMONA UNIFIED SD DS 2002 SERIES C 12,755,000 19.856 2,532,600
915.68 POMONA UNIFIED SCHOOL DS 2002 SERIES D 13,070,000 19.856 2,595,146
915.69 POMONA UNIFIED SD DS 2002 SERIES E 12,050,000 19.856 2,392,617
915.70 POMONA UNIF SCH DS 2007 REF BDS 8,728,661 19.856 1,733,140
915.71 POMONA UNIF SCH DS 2008 SERIES A 34,700,000 19.856 6,889,943
915.72 POMONA USD DS 2011 (QSCBS) 4,030,000 19.856 800,186
980.50 WALNUT VALLEY UNIFIED DS 2011 27,987,385 59.726 16,715,718
980.51 WALNUT VALLEY UNIFIED 2011 REFUNDING BONDS 13,465,000 59.726 8,042,093
980.55 WALNUT VALLEY REF.DS SERIES 97 A 23,247,718 59.726 13,884,909
980.58 WALNUT VALLEY USD DS 2000 SERIES C 255,000 59.726 152,301
980.59 WALNUT VALLEY USD DS 2000 SERIES D 13,715,243 59.726 8,191,552
980.60 WALNUT VALLEY USD DS 2000 SERIES E 6,001,837 59.726 3,584,651
980.61 WALNUT VALLEY USD DS 2005 REF.BOND 11,420,000 59.726 6,820,698
980.62 WALNUT VAL UNIF DS 2007 SER A(MEASURE S) 25,580,000 59.726 15,277,885
980.63 WALNUT VAL UNIF DS 2007 SER A(MEASURE Y) 6,950,887 59.726 4.151,480
Total Overlapping Debt $ 138,716,999
18
DOCSOC/I 509560v6/024168-0005
Total Direct and Overlapping Debt 150.90fi.999
Debt to Assessed Valuation Ratios as of June 30,2011:
2010/11 Assessed Valuation: $7,193,712.566 Direct Debt 0.17%
Overlapping Debt 1.93%
Total Debt 2.10%
* This fund is a portion of a larger agency,and is responsible for debt in areas outside the city.
This report reflects debt which is being repaid through voter-approved property tax indebtedness. It excludes mortage
revenue, tax allocation bonds, interim financing obligations, non-bonded capital lease obligations, and certificates of
participation,unless provided by the city.
(2) Overlapping governments are those that coincide, at least in part, with the geographic boundaries of the city. The
percentage of overlapping debt applicable is estimated by using taxable assessed values. Applicable percentages were
estimated by determining the portion of another governmental unit's taxable assessed value that is within the city's
boundaries and dividing it by each unit's total taxable assessed value.
Source: HdL Coren&Cone;Los Angeles County Assessor and Auditor Combined 2010/11 Lien Date Tax Rolls.
Investment Policies and Procedures
Funds held by the City are invested in accordance with the City's Investment Policy(the "Investment
Policy") prepared by the Finance Director as authorized by Section 53601 of the Government Code of
California, The Investment Policy is submitted to the City Council annually.
The Investment Policy allows for the purchase of a variety of securities and provides for limitations as
to exposure, maturity and rating which vary with each security type. The composition of the portfolio will
change over time as old investments mature,or are sold, and as new investments are made.
Invested funds are managed to insure preservation of capital through high quality investments,
maintenance of liquidity and then yield. Further,operating funds may not be invested in any investment with a
maturity greater than five years.
The City has never invested in derivatives or reverse repurchase agreements and such investments and
instruments are not allowed by City policy.
Information about the sensitivity of the fair market values of the city's investments (including
investments held by bond trustee) to market interest rate fluctuations is provided by the following table that
shows the distribution of the City's investments by maturity:
TABLE 9
CITY OF DIAMOND BAR
Investments by Maturity
As of June 30,2011
Remaining Maturity(in Months)
12 Months or 13 to 24 25 to 60
Investment Type Less Months Months Tota!
United States Government Sponsored
Enterprise Securities $ - $ - $ 9,000,000 $ 9,000,000
Local Agency Investment Fund 17,121,080 - - 17,121,080
(LAIF)
Money Market Funds Held by Bond
Trustee 1,365,766 - - 1,365,766
Negotiable Certificates of Deposit
- 496,000 1,240,000 1,736,000
Total Investments $ 18.486.846 $ 496.000 10.240.000 $ 29.222.846
Source: City of Diamond Bar Comprehensive Annual Financial Report for the Year Ended June 30,2010.
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The City believes that its funds are prudently invested and that the investments therein are scheduled
to mature at the times and in the amounts that are necessary to meet the City's expenditures and other
scheduled withdrawals.
For additional information concerning City investments, see Appendix B—"AUDITED FINANCIAL
STATEMENTS OF THE CITY FOR THE FISCAL YEAR ENDED JUNE 30,2010."
Insurance
The City is a member of the California Joint Powers Insurance Authority (the "JPIA"). The JPIA is
composed of 122 California public entities and is organized under a joint powers agreement pursuant to
California Government Code§6500 et seq. The purpose of the JPIA is to arrange and administer programs for
the pooling of self-insured losses, to purchase excess insurance or reinsurance, and to arrange for group
purchased insurance for property and other lines of coverage. The JPIA's pool began covering claims of its
members in 1978. Each member government has an elected official as its representative on the JPIA Board of
Directors. The Board operates through a 9-member Executive Committee.
Self Insurance.
General Liability. The City pays a primary deposit to cover estimated losses for each Fiscal
Year (claims year). After the close of a Fiscal Year, outstanding claims are valued. A retrospective deposit
computation is then made for each open claims year. Claims are pooled separately between police and
non-police. Costs are allocated to the City by the following methods within each of the four layers of
coverage: (1)the first $30,000 of each occurrence is charged directly to the City's primary deposit; (2)costs
from$30,000 to$750,000 and the loss development reserves associated with losses up to$750,000 are pooled
based on the City's share of losses under $30,000; (3)losses from $750,000 to $5,000,000 and the associated
loss development reserves are pooled based on payroll; (4)(a) costs of covered claims from $5,000,000 to
$10,000,000 are paid under reinsurance policies and are subject to a$2,500,000 annual aggregate deductible;
(b)costs of covered claims from $10,000,000 to $50,000,000 are covered through excess insurance policies;
(c)costs of covered claims for subsidence losses are paid by excess insurance with a sub-limit of$25,000,000
per occurrence per member. This $25,000,000 subsidence sub-limit is composed of $10,000,000 in
reinsurance and $15,000,000 in excess insurance. The excess insurance layer has a $15,000,000 annual
aggregate. The costs associated with clause 4 are estimated using actuarial models and pre-funded as part of
the primary and retrospective deposits.
The overall policy limit for the City,including all layers of coverage, is$50,000,000 per occurrence.
Workers' Compensation. The City also participates in the workers' compensation pool
administered by the JPIA. The City pays a primary deposit to cover estimated losses for a Fiscal Year(claims
year). After the close of a Fiscal Year, outstanding claims are valued. A retrospective deposit computation is
then made for each open claims year. Claims are pooled separately between public safety and non-public
safety. Costs are allocated to the City by the following methods within each of the four layers of coverage:
(1)the first $50,000 of each loss is charged directly to the City's primary deposit; (2)losses from $50,000 to
$100,000 and the loss development reserve associated with losses up to $100,000 are pooled based on the
City's share of losses under $50,000; (3)losses from $100,000 to $2,000,000 and the loss development
reserves associated with those losses are pooled based on payroll; (4)losses from $2,000,000 up to statutory
limits are paid under an excess insurance policy. Protection is provided per statutory liability under California
Workers' Compensation law.
Employer's liability losses are pooled among JPIA members to$2,000,000,coverage from$2,000,000
to $4,000,000 is purchased as part of an excess insurance policy, and losses from $4,000,000 to $10,000,000
are pooled among JPIA members.
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Purchased Insurance.
Environmental Insurance. The City participates in the pollution legal liability and
remediation legal liability insurance which is available through the JPIA. The policy covers sudden and
gradual'pollution of scheduled property, streets, and storm drains owned by the City. Coverage is on a
claims-made basis. There is a$50,000 deductible. The JPIA has a limit of$50,000,000 for the 3-year period
from July 1, 2011 through July 1, 2014 and the City has a $10,000,000 limit during the 3-year term of the
policy.
Property Insurance. The City participates in the all-risk property protection program of the
JPIA. Coverage is underwritten by several insurance companies. The City's property is currently insured
according to a schedule of covered property submitted by the City to the JPIA. The City's property currently
has all-risk property insurance protection in the amount of$19,050,858. There is a $5,000 deductible per
occurrence except for non-emergency vehicle insurance which has a $1,000 deductible. Premiums for the
coverage are paid annually and are not subject to retroactive adjustments.
Crime Insurance. The City purchases crime insurance coverage in the amount of$1,000,000
with a$2,500 deductible. Fidelity coverage is provided through the JPIA. Premiums are paid annually and are
not subject to retroactive adjustments.
During the past three Fiscal (claims)Years none of the City's insurance policies have had settlements
or judgments that exceed pooled or insured coverage.
Employees and Labor Relations
As of June 30, 2011, the City currently employed 47 full-time employees,4 part-time employees with
benefits and 59 part-time employees without benefits. The City's organization includes upper management
who are "at-will" employees and a "competitive service" section of employees as defined in the Municipal
Code who are entitled to normal employment rights of public employees. The City has never experienced a
work stoppage by its employees.
Pension Plan
The City participates in the Miscellaneous 2% at 55 Risk Pool of the California Public Employee's
Retirement System ("PERS"), a cost-sharing, multiple-employer defined benefit pension plan administered by
PERS. PERS provides retirement and disability benefits, annual cost-of-living adjustments, and death benefits
to plan members and beneficiaries. Benefit provisions and all other requirements are established by State
statue and City ordinance. Copies of the PERS' annual financial report may be obtained from the PERS
Executive Office at 400 P Street, Sacramento,California 95814.
The contribution requirements of plan members are established by State statute and the employer
contribution rate is established and may be amended by PERS. Active City employees are required to
contribute 7% of their annual covered salary to PERS. The City makes the contributions required of City
employees on their behalf and for their account. The City is required to contribute the actuarially determined
remaining amounts necessary to fund the benefits for its members. The rate for Fiscal Year 2012 is 11.460%
of covered payroll. The City prepaid its Fiscal Year 2012 contribution in the amount of$445,185 on July 1,
2011. The City's contributions to PERS for the Fiscal Years ending June 30, 2011, 2010 and 2009 were
$401,262,$396,087 and$392,608,respectively,and were equal to the required contribution for each year.
Because the City's plan has less than 100 members,it is required by PERS to participate in a risk pool.
The City plan's share of the unfunded actuarial accrued liability of the Miscellaneous 2%at 55 Risk Pool as of
June 30, 2009, the latest date for which such information is available, was $1,147,000. In addition, the City
has a side fund liability of$671,619,reflecting liabilities incurred before the City joined the Miscellaneous 2%
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at 55 Risk Pool. The City's employer contribution rate of 11.460%for Fiscal Year 2012 reflects both the side
fund and risk pool liabilities.
Under Governmental Accounting Standards Board Statement No. 27, an employer reports an annual
pension cost "(APC") equal to the annual required contribution plus an adjustment for the cumulative
difference between the APC and the employer's actual plan contributions for the year. The cumulative
difference is called the net pension obligation. Three-year trend information for the City's contributions to the
PERS plan is as follows:
Employer Employer Percentage of Net Pension
Fiscal Year Contribution Rate Contribution APC Contributed Obligation
2010 10.500% $396,087 100% -
2011 10.424 401,262 100 -
2012 11.460 445,185 100
The required contributions were determined as part of the June 30, 2009 actuarial valuation using the
entry age normal actuarial cost method. The actuarial assumptions included: (a) a 7.75% investment rate of
return (net of administrative expenses); (b) projected annual salary increases of between 3.55% to 14.45%,
depending upon duration of service, age and type of employment; and (c) a 3.25% per year cost-of-living
adjustment. Both(a)and(b)included an inflation component of 3.00%.
PERS announced significant investment losses in Fiscal Year 2009 and the City expects that its annual
pension costs may increase in future years as a result of such investment losses. The Agency cannot predict at
this time the magnitude of such increases,but does not expect such increases to have a material adverse effect
on the City's ability to make payments of principal and interest on the Bonds.
The City contracts with Los Angeles County for sheriff services. The annual costs of such services
include the City's proportionate share of retirement costs.
Other Post-Employment Benefits
The City provides post-retirement health care benefits to retirees through the California PERS Health
Benefits Program ("PERS Health"). PERS Health is an agent multiple-employer defined benefit health care
plan that provides health care insurance for eligible retirees through the City's group plans, which cover both
active and retired employees. Employees become eligible to retire and receive City-paid health care benefits
upon attainment of age 50 and 5 years of covered PERS service, or by qualifying disability retirement status.
Retired employees over the age of 65 must join one of the supplemental (Medicare-coordinated)options under
PERS Health. Benefits are paid for the lifetime of the retiree. Benefit provisions are established by City
ordinance,which references state statutes(the Public Employee Medical and Hospital Care Act). PERS Health
does not issue a publicly available financial report.
The City sets its monthly contribution rates for health insurance on behalf of all eligible retirees
according to PERS Health's statutory minimum ($101/month for calendar 2010, increased in all future years
according to the rate of medical inflation). The City pays a 0.45%of premium administrative charge on behalf
of all retirees. The City is currently funding this obligation on a pay-as-you-go basis. For the Fiscal Year
ended June 30,2011,the City paid$5,772 in health care costs for its retirees and their covered dependents.
The City's annual cost for other post-employment benefits ("OPEB") is calculated based on the
annual required contribution of the employer (the "ARC"), an amount actuarially determined in accordance
with parameters of GASB Statement 45. The ARC represents a level of funding that, if paid on an ongoing
basis, is projected to cover normal cost each year and to amortize any unfunded liabilities of the plan over a
period not to exceed thirty years.
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The following table shows the components of the City's annual OPEB cost for Fiscal Year 2010, the
amount actually contributed to the plan, and changes in the City's net OPEB obligation to PERS Health (in
thousands):
Annual required contribution $ 62,171
Interest on net OPEB obligation 3,239
Adjustment to annual required contribution (2,893)
Annual OPEB cost(expense) 62,517
Contributions made 5,594
Increase in net OPEB obligation 56,923
Net OPEB obligation-beginning of year 64,787
Net OPEB obligation-end of year $ 121.710
Governmental Accounting Standards Board Statement No.45 ("GASB 45") requires governmental
agencies that fund post-employment benefits on a pay-as-you-go basis, such as the City(beginning for the City
with Fiscal Year 2009), to account for and report the outstanding obligations and commitments related to
OPEB in essentially the same manner as for pensions. While requiring the City to disclose the unfunded
actuarial accrued liability and the ARC in its financial statements, GASB 45 does not require the City to fund
the ARC.
In 2009, the City engaged a consultant to calculate the City's OPEB current funding status. The
consultant's report concluded that the City's unfunded actuarial accrued liability for OPEB as of July 1, 2008
based upon a 5.0%discount rate was$402,007 and that the ARC was$70,456.
For Fiscal Year 2011,the City's annual other post-employment benefits cost of$62,685 was less than
the ARC. Three year OPEB cost information is as follows:
Percentage of
Annual OPEB
Annual OPEB Actual Costs Net OPEB
Fiscal Year Costs Contributions Contributed Obligation
2009 $70,456 $5,669 8.05% $ 64,787
2010 62,517 . 5,594 8.95% 121,710
2011 62,685 5,772 9.21 178,653
Actuarial valuations of an ongoing plan involve estimates of the value of reported amounts and
assumptions about the probability of occurrence of events far into the future. Examples include assumptions
about future employment, mortality, and the healthcare cost trend. Amounts determined regarding the funded
status of the plan and the annual required contributions of the City are subject to continual revision as actual
results are compared with past expectations and new estimates are made about the future.
The schedule of funding progress below presents information about the actuarial value of plan assets
relative to the actuarial accrued liabilities for benefits. The information is as of the July 1, 2008 actuarial
valuation. The City expects to cause the preparation of a new actuarial valuation for the three year period
ended July 1,2011 in early 2012.
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URAL
as a
Unfunded Percent
Actuarial Actuarial Actuarial Actuarial of
Type of Valuation Value of Accrued Accrued Funded Covered Covered Interest
Valuation Date Assets Liability Liability Ratio Payroll Payroll Rate
Actual 7/1/2008 $ - $402,007 $402,007 0.0% $3,657,956 10.99% 5.00%
Projections of benefits for financial reporting purposes are based on the substantive plan(the plan as
understood by the employer and the plan members) and include the types of benefits provided at the time of
each valuation and the historical pattern of sharing of benefit costs between the employer and the plan
members at that point. The actuarial methods and assumptions used include techniques that are designed to
reduce the effects of short-term volatility in actuarial accrued liabilities and the actuarial value of assets
consistent with the long-term perspective of the calculations.
In the July 1, 2008, actuarial valuation, the projected unit credit method was used. The actuarial
assumptions included a discount rate of 5.0%per annum, a rate of return on assets of 5.0% per annum and a
healthcare cost trend rate of 8.0% initially, reduced by annual decrements of 1.0%to an ultimate rate of 5.0%
after three years. The City's unfunded actuarial accrued liability will be amortized as a level dollar over an
open period of 30 years.
Financial Statements
A copy of the most recent financial statements of the City audited by Lance, Soll & Lunghard, LLP
(the "Auditor") are included hereto as Appendix B—"AUDITED FINANCIAL STATEMENTS OF THE
CITY FOR THE FISCAL YEAR ENDED JUNE 30, 2010." The Auditor's letter concludes that the financial
statements referred to above present fairly, in all material respects, the respective financial position of the
governmental activities, each major fund, and the aggregate remaining fund information of the City of
Diamond Bar as of June 30, 2010, and the respective changes in financial position and cash flows, where
applicable, and the respective budgetary comparison for the General Fund and the Transportation Grant
Special Revenue Fund for the year then ended in conformity with accounting principles generally accepted in
the United States of America.
The City has not requested nor did the City obtain permission from the Auditor to include the audited
financial statements as an appendix to this Reoffering Memorandum. Accordingly, the Auditor has not
performed any post-audit work on the financial statements.
RISK FACTORS
The following factors, along with the other information in this Reoffering Memorandum, should be
considered by potential investors in evaluating any purchase of the Bonds. The following is not an exhaustive
listing of risks and other considerations which may be relevant to an investment in the Bonds. In addition, the
order in which the following factors are presented is not intended to reflect the relative importance of any such
risks.
Substitution of Leased Property
The Lease permits the City to substitute other premises for the Leased Property or portions thereof
under the Lease, provided that the fair market value and the fair rental value of the substitute premises are at
least equal to such portion of the Leased Property to be removed from the Lease, and provided that certain
other criteria are met. See Appendix C—"SUMMARY OF PRINCIPAL LEGAL DOCUMENTS" under the
caption"THE LEASE—Substitution of Property."
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Base Rental Payments Not Debt
The obligation of the City to make the Base Rental Payments does not constitute an obligation of the
City for which the City is obligated to levy or pledge any form of taxation or for which the City has levied or
pledged any form of taxation. Neither the Bonds nor the obligation of the City to make Base Rental Payments
constitute a debt of the City, the State of California or any political subdivision thereof (other than the
Authority)within the meaning of any constitutional or statutory debt limitation or restriction.
The Bonds are not general obligations of the Authority, but are limited obligations payable solely
from and secured by a pledge of Revenues, consisting primarily of Base Rental Payments. The Authority has
no taxing power.
Although the Lease does not create a pledge, lien or encumbrance upon the funds of the City,the City
is obligated under the Lease to pay the Base Rental Payments from any source of legally available funds and
the City has covenanted in the Lease that, for so long as the Leased Property is available for its use, it will
make the necessary annual appropriations within its budget for the Base Rental Payments. The City is
currently liable and may become liable on other obligations payable from general revenues, some of which
may have a priority over the Base Rental Payments.
The City has the capacity to enter into other obligations payable from the City's General Fund,
without the consent of or prior notice to the Owners of the Bonds. To the extent that additional obligations are
incurred by the City,the funds available to make Base Rental Payments may be decreased. In the event that
the City's revenue sources are less than its total obligations, the City could choose to fund other activities
before making Base Rental Payments and other payments due under the Lease. The same result could occur if
State Constitutional expenditure limitations were to prohibit the City from appropriating and spending all of its
otherwise available revenues.
Abatement
In the event of loss or substantial interference in the use and occupancy by the City of all or any
portion of the Leased Property caused by material damage, title defect, destruction to or condemnation of the
Leased Property, Base Rental Payments will be subject to abatement. The amount of such abatement will be
determined by the City, such that the resulting Base Rental Payments represent fair consideration for the use
and occupancy of the portions of the Leased Property not damaged, destroyed or taken in eminent domain.
Such abatement will continue for the period commencing with such damage or destruction, if applicable, and
end with the substantial completion of the work of repair or reconstruction. In the event that such component
of the Leased Property, if damaged or destroyed by an insured casualty, could not be replaced during the
period of time that proceeds of the City's rental interruption insurance will be available in lieu of Base Rental
Payments, or in the event that casualty insurance proceeds or condemnation proceeds are insufficient to
provide for complete repair or replacement of such component of the Leased Property or prepayment of the
Bonds,there could be insufficient funds to make payments to Owners in full.
There will be no abatement of Base Rental Payments to the extent that the proceeds of hazard
insurance or rental interruption insurance are available to pay Base Rental Payments, or to the extent that
moneys are available in the Lease Payment Account of the Debt Service Fund. The City has not funded a
reserve fund in connection with the execution and delivery of the Bonds.
Risk of Uninsured Loss
The City has covenanted under the Lease to maintain certain insurance policies on the Leased
Property. See the caption "SECURITY FOR THE BONDS—Insurance." Such insurance policies do not
cover all types of risk. For instance,the City does not covenant to maintain earthquake insurance. The Leased
Property could be damaged or destroyed due to earthquake or other casualty for which the Leased Property is
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DOCSOC/1509560v6/024168-0005
uninsured. Additionally,the Leased Property could be the subject of an eminent domain proceeding. Under
these circumstances an abatement of Base Rental Payments could occur and could continue indefinitely. There
can be no assurance that the providers of the City's liability and rental interruption insurance will in all events
be able or willing to make payments under the respective policies for such loss should a claim be made under
such policies. Further,there can be no assurances that amounts received as proceeds from insurance or from
condemnation of the Leased Property will be sufficient to repair the Leased Property or to redeem the Bonds
and any other obligations secured by Base Rental Payments.
Certain of the City's insurance policies provide for deductibles. See the caption"CITY FINANCIAL
INFORMATION—Insurance." Should the City be required to meet such deductible expenses,the availability
of General Fund revenues to make Base Rental Payments may be correspondingly affected.
Seismic Risks
The State, including the County, is a seismically active region. There are several geological faults in
the area which have the potential to cause serious earthquakes and damage to the Leased Property. Should an
earthquake occur such that extensive damage is caused to the Leased Property that results in substantial
interference with the use and occupancy of the Leased Property,under the abatement provisions of the Lease,
the City would not be obligated to make the Base Rental Payments. Seethe caption"—Abatement"above.
The City is not obligated by the Lease or otherwise to maintain earthquake insurance with respect to
the Leased Property.
Bankruptcy
The City is a unit of State government and therefore is not subject to the involuntary procedures of the
United States Bankruptcy Code (the "Bankruptcy Code"). However,pursuant to Chapter 9 of the Bankruptcy
Code, the City may seek voluntary protection from its creditors for purposes of adjusting its debts. In the
event that the City were to become a debtor under the Bankruptcy Code,the City would be entitled to all of the
protective provisions of the Bankruptcy Code as applicable in a Chapter 9 proceeding. Among the adverse
effects of such a bankruptcy might be: (i)the application of the automatic stay provisions of the Bankruptcy
Code,which,until relief is granted,would prevent collection of payments from the City or the commencement
of any judicial or other action for the purpose of recovering or collecting a claim against the City; (ii)the
avoidance of preferential transfers occurring during the relevant period prior to the filing of a bankruptcy
petition; (iii)the existence of unsecured or court-approved secured debt which may have a priority of payment
superior to that of Owners of Bonds; and(iv)the possibility of the adoption of a plan for the adjustment of the
City's debt (a "Plan") without the consent of the Trustee or all of the Owners of Bonds, which Plan may
restructure, delay,compromise or reduce the amount of any claim of the Owners if the Bankruptcy Court finds
that the Plan is fair and equitable.
In addition, the City could either reject the Lease or assume the Lease despite any provision of the
Lease which makes the bankruptcy or insolvency of the City an event of default thereunder. In the event that
the City rejects the Lease,the Trustee, on behalf of the Owners of the Bonds,would have a pre-petition claim
that may be limited under the Bankruptcy Code and treated in a manner under a Plan over the objections of the
Trustee or Owners of the Bonds. Moreover, such rejection would terminate the Lease and the City's
obligations to make payments thereunder.
The Authority is a public agency and, like the City, is not subject to the involuntary procedures of the
Bankruptcy Code. The Authority may also seek voluntary protection under Chapter 9 of the Bankruptcy Code.
In the event that the Authority were to become a debtor under the Bankruptcy Code, the Authority would be
entitled to all of the protective provisions of the Bankruptcy Code applicable in a Chapter 9 proceeding. Such
a bankruptcy could adversely affect the payments under the Indenture. Among the adverse effects might be:
(i)the application of the automatic stay provisions of the Bankruptcy Code, which, until relief is granted,
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would prevent collection of payments from the Authority or the commencement of any judicial or other action
for the purpose of recovering or collecting a claim against the Authority; (ii)the avoidance of preferential
transfers occurring during the relevant period prior to the filing of a bankruptcy petition; (iii)the existence of
unsecured or court-approved secured debt which may have priority of payment superior to that of the Owners
of the Bonds; and (iv)the possibility of the adoption of a plan for the adjustment of the Authority's debt
without the consent of the Trustee or all of the Owners of the Bonds, which plan may restructure, delay,
compromise or reduce the amount of any claim of the Owners if the Bankruptcy Court finds that the Plan is
fair and equitable. However,the bankruptcy of the Authority,and not the City,should not affect the Trustee's
rights under the Lease. The Authority could still challenge the assignment,and the Trustee and/or the Owners
of the Bonds could be required to litigate these issues in order to protect their interests.
Enforcement of Remedies Under the Lease;No Acceleration
If the City defaults on its obligation to make Base Rental Payments with respect to the Leased
Property,the Authority's only effective remedy is to sue for Base Rental Payments as they become due. In the
event of a default, there is no remedy of acceleration of the total Base Rental Payments due over the term of
the Lease. The City,while it is the lessee under the Lease,will only be liable for Base Rental Payments on a
semiannual basis, and the Authority would be required to seek a separate judgment for each year's defaulted
Base Rental Payment. Any such suit for money damages would be subject to Limitations on,legal remedies
against cities in the State.
In addition, any exercise of remedies to recover shortfalls in the receipt of Base Rental Payments will
be subject to the parity claims of holders of any other parties entitled to receive Base Rental Payments.
No Liability of Authority to the Owners
Except as expressly provided in the Indenture,the Authority will not have any obligation or liability to
the Owners of the Bonds with respect to the payment when due of the Base Rental Payments by the City, or
with respect to the performance by the City of other agreements and covenants required to be performed by it
contained in the Lease or the Indenture, or with respect to the performance by the Trustee of any right or
obligation required to be performed by it contained in the Indenture.
Investment of Funds
All the funds held under the Indenture are required to be invested in Authorized Investments as
provided under the Indenture. See Appendix C for a summary of the definition of Authorized Investments.
All investments, including the Authorized Investments and those authorized by law from time to time for
investments by municipalities, contain a certain degree of risk. Such risks include, but are not limited to, a
lower rate of return than expected, a decline in market value and loss or delayed receipt of principal. The
occurrence of any of these events with respect to amounts held under the Indenture or the funds and accounts
held by the City could have a material adverse affect on the security for the Bonds, and/or the financial
condition of the City. See the caption"CITY FINANCIAL POLICIES—Investment Policies and Procedures"
and the audited financial statements of the City for the Fiscal year ended June 30, 2010 attached hereto as
Appendix B for information concerning the City's investment policy and portfolio of investments.
Secondary Market
There can be no assurance that there will be a secondary market for the Bonds or, if a secondary
market exists, that such Bonds can be sold for any particular price. Occasionally, because of general market
conditions or because of adverse history or economic prospects connected with a particular issue, secondary
marketing practices in connection with a particular issue are suspended or terminated. Additionally, prices of
issues for which a market is being made will depend upon the then prevailing circumstances. Such prices
could be substantially different from the original purchase price.
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Loss of Tax Exemption
Interest on the Bonds could become includable in gross income for purposes of federal income
taxation retroactive to the date of original issuance of the Bonds as a result of future acts or omissions of the
Authority or the City in violation of their respective covenants in the Lease and the Indenture. Should such an
event of taxability occur, the Bonds are not subject to a special redemption and will remain outstanding until
maturity or until redeemed under the redemption provisions contained in the Indenture.
The Internal Revenue Service (the "IRS") has initiated an expanded program for the auditing of
tax-exempt bond issues, including both random and targeted audits. It is possible that the Bonds will be
selected for audit by the IRS. It is also possible that the market value of the Bonds might be affected as a
result of such an audit of the Bonds(or by an audit of similar obligations).
State Budget
[To be updated.]
The following information concerning the State's budgets has been obtained from publicly available
information which the City, the Authority and the Remarketing Agent believe to be reliable; however, neither
the City, the Authority nor the Remarketing Agent guarantees the accuracy or completeness of this information
and has not independently verified such information. Furthermore, it should not be inferred from the inclusion
of this information in this Oficial Statement that the principal or interest on the Bonds is payable by or the
responsibility of the State.
The State is experiencing significant financial and budgetary stress. State budgets are affected by
national and state economic conditions and other factors over which the City has no control. The State's
financial condition and budget policies affect communities and local public agencies throughout California.
To the extent that the State budget process results in reduced revenues to the City,the City will be required to
make adjustments to its budget. Each State budget contains a number of measures which impact the City's
finances.
The State's fiscal year begins on July 1 and ends on June 30. The annual budget is proposed by the
Governor by January 10 of each year for the next fiscal year(the "Governor's Budget'). Under State law, the,
annual proposed Governor's Budget cannot provide for projected expenditures in excess of projected revenues
and balances available from prior years. Following the submission of the Governor's Budget, the State
Legislature takes up the proposal.
Under the State Constitution, money may be drawn from the Treasury only through an appropriation
made by law. The primary source of the annual expenditure authorizations is the Budget Act as approved by
the State Legislature and signed by the Governor. Prior to the November 2, 2010 General Election,the Budget
Act required approval by a two-thirds majority vote of each house of the State Legislature. On November 2,
2010, State voters passed Proposition 25, which amended this legislative vote requirement to a simple
majority. The Governor may reduce or eliminate specific line items in the Budget Act or any other
appropriations bill without vetoing the entire bill. Such individual line item vetoes are subject to override by a
two-thirds majority vote of each house of the State Legislature.
Appropriations also may be included in legislation other than the Budget Act. Bills containing
appropriations (except for K-14 education) must be approved by a two-thirds majority vote in each house of
the State Legislature and be signed by the Governor. Bills containing K-14 education appropriations only
require a simply majority vote. Continuing appropriations,available without regard to fiscal year, may also be
provided by statute or the State Constitution.
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Funds necessary to meet an appropriation need not be in the State Treasury at the time such
appropriation is enacted;revenues may be appropriated in anticipation of their receipt.
The State Legislature passed the $87.5 billion fiscal year 2010-11 State budget on the morning of
October 8, 2010, and the Governor signed it that night, exercising his line-item veto authority to reduce
spending by$963 million in order to raise the state reserve level from$375 million to$1.3 billion. Total fiscal
year 2010-11 State budget expenditure reductions were $8.4 billion. The fiscal year 2010-11 State budget
assumed federal funds of$5.4 billion and other solutions of almost$5.5 billion. This fiscal year 2010-11 State
budget was passed 100 days late and after declaration by Governor Schwarzenegger of a financial state of
emergency, an order from the governor requiring that 150,000 State workers to take three furlough days per
months, and the end of the 2010 legislative session on August 31,2010.
In its initial report for fiscal year 2011-12, the State Legislative Analyst's Office (the "LAO")
forecasted that the State's general fund revenues and expenditures would show a budget deficit of $25.4
billion, consisting of a $6 billion projected deficit for fiscal year 2010-11 and a $19 billion gap between
projected revenues and spending for fiscal year 2011-12. The LAO projected that the State will continue to
face annual budget problems of approximately $20 billion each year through fiscal year 2015-16, and
recommended that the State Legislature initiate a multi-year approach to solving the State's recurring structural
budget deficit, addressing permanent revenue and expenditure actions each year, together with temporary
budget solutions,until the structural deficit is eliminated.
On December 6, 2010, Governor Schwarzenegger called an emergency session of the State
Legislature to address the $6.1 billion projected deficit for fiscal year 2010-11. During budget briefings held
in December 2010, then-Governor-elect Jerry Brown announced that the deficit between now and June 30,
2012 had likely grown from the $25.1 billion reported in the Fiscal Outlook Report to approximately $28
billion. On January 3,2011,Jerry Brown was sworn in as Governor.
On January 10, 2011, the Governor released his proposed budget for fiscal year 2011-12 (the
"Proposed Budget"). The Proposed Budget was designed to address an estimated budget shortfall of$25.4
billion in the fiscal year 2011-12 State Budget, consisting of an $8.2 billion projected deficit for fiscal year
2010-11 and a $17.2 billion gap between projected revenues and spending in fiscal year 2011-12, with a
proposed reserve of$1 billion. The Proposed Budget relied on a plan to submit to the voters at a special
election in June a 5-year extension of the temporary sales tax, income tax, and vehicle license fee increases and
maintaining a lower dependent exemption credit that are set to expire on June 30,2011. The Proposed Budget
also included $8.2 billion in one-time savings and borrowing. These include $1.8 billion in borrowing from
special funds, $1.7 billion in property tax shifts, shifting $1.0 billion in Proposition 10 reserves to fund
children's programs, and $0.9 million from Proposition 63 moneys to fund community and mental health
services. The Governor proposed to restructure the State-local relationship by shifting funding and
responsibility to local government for certain services, resulting in a shift of an aggregate amount of
$5.9 billion in State program costs to counties.
The Proposed Budget included expenditure reductions that touch nearly every area of the State budget.
Proposed reductions included cuts of $1.7 billion to Medi-Cal, $1.5 billion to the State's welfare-to-work
program, $1 billion to the University of California and California State University, $750 million to the
Department of Developmental Services, and $580 million to state operations and employee compensation.
Although the Governor's revenue proposals resulted in a $2 billion increase in the Proposition 98 minimum
funding guarantee for schools above the current-law level,the Proposed Budget would have resulted in a small
funding decline for K-12 and more significant reductions for community colleges and child care programs.
The Governor called the State Legislature to refer the proposed reinstatement of temporary tax
increases described above to a Statewide special election in June 2011, in an attempt to gain voter approval for
the Governor's proposed increases. However, March 31, the deadline for initiating such a special election,
passed without an agreement in the State Legislature about whether to put such a reinstatement measure on the
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ballot. The measure may be presented to State voters at a later date. A 2011 budget proposition voted on after
the July 1 expiration could still reinstate the approved extensions for an additional five years.
The Governor also proposed eliminating the current funding mechanism for redevelopment agencies
(the "RDA Provisions"), although only limited details were provided for such a far-reaching proposal. The
RDA Provisions, if adopted, would prohibit existing agencies from creating new contracts or obligations
effective upon enactment of urgency legislation. Existing agencies would be disestablished and successor
local agencies would be required to use the tax increment revenues that redevelopment agencies would
otherwise have received to retire redevelopment agency debts and certain contractual obligations "in
accordance with existing payment schedules." The RDA Provisions would divert an estimated $1.7 billion in
fiscal year 2011-12 to offset State General Fund costs for Medi-Cal and trial courts. An additional estimated
$210 million would be distributed on a one-time basis to cities, counties, and special districts proportionate to
their current share of the countywide property tax.
The RDA Provisions propose that, after fiscal year 2011-12,the money available after payment of the
redevelopment agency debt and contractual obligations would be distributed to schools, counties, cities, and
non-enterprise special districts for general uses.
[UPDATE] As to Low and Moderate Income Housing Fund balances,the Proposed Budget provides
that amounts in the redevelopment agency's balances reserved for low-moderate income housing would be
shifted to local housing authorities for low and moderate income housing.
An LAO report dated January 12, 2011 stated that the Proposed Budget estimates were reasonable,
and the proposed multiyear and ongoing solutions show great promise of making substantial improvements to
the State's overall budget health. However, the LAO report recognizes that the Governor's realignment and
redevelopment proposals are extremely ambitious,implicating many legal,financial and policy issues, and that
$12 billion of the Governor's proposed solutions are dependent upon voter approval in June 2011.
In March 2011,the Governor's proposed June 2011 special election was not approved. However,the
Legislature passed a package of bills resulting in$11 billion in cuts and other solutions, including$5.5 billion
in cuts to health and human services, $1.2 billion in cuts to the University of California and California State
University systems, $2.2 billion in transportation debt service and other reductions, $531 million in revenue
proposals and$2.8 billion in loans and transfers and other solutions.
On May 16, 2011, the Governor released the May Revise to the Proposed Budget. Elements of the
Proposed Budget that would directly affect the City are discussed below. In the May Revise, an assumed
$6.6 billion in new state tax revenues over the current and budget years ($3.3 billion each year) have been
taken into account, but certain expenditure increases are also recognized. After accounting for budget
measures adopted by the Legislature, higher revenues and updates spending projections, the State's
$26.6 billion estimated budget deficit is reduced in the May Revise to$9.6 billion. The remaining$9.6 billion
deficit is composed of a carry-in deficit of$4.8 billion from Fiscal Year 2010-11 and an operating shortfall of
$4.8 billion in Fiscal Year 2011-12. The projected operating shortfall increased to $10 billion and the
Governor calls for the Legislature to adopt $11 billion in new solutions to rebuild a modest reserve. The
Governor plans to use almost all of the $6.6 billion in new revenues to reduce the need for some targeted tax
extensions and to start paying down the State's$35 billion in debt.
The May Revise proposes that the Legislature act by the end of June 2011 to approve and the voters
ratify in November 2011 the extension of current sales tax and vehicle license fee rates and the dependent
credit exemption level for five years. If these tax extensions are approved, the budget provides an additional
$3 billion to schools in 2011-12. This $3 billion is over and above the 2011-12 $49.4 billion Proposition 98
guarantee and funding level approved by the Legislature in March 2011. It is approximately$1 billion above
the $51.3 billion funding level included in the Governor's January budget. However,the Governor proposes
that$2.85 billion of the$3 billion go toward eliminating deferrals,not toward increased revenue limit funding.
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Additional revenues generated by the tax extensions would fund a major realignment of public safety
programs.
The Governor proposes that the remaining savings from revenue increases and future revenue growth
above current program funding be dedicated to paying off the State's $35 billion in debt. Under the
Governor's proposals,at least$29 billion in deferrals and debt would be paid off by fiscal year 2014-15.
The Governor's May Revise removed the proposed income tax extension and his proposal to eliminate
the enterprise tax credit. The Governor is continuing to push for the elimination of redevelopment agencies.
The LAO's May 19, 2011 report on the Governor's May Revise concludes that the Governor's budget
estimates in the May Revise are based on reasonable assumptions. However,the LAO notes, school districts,
counties and the State face uncertainty as to funding levels in the fiscal year because the Governor's revenue
assumptions rely on the extension of temporary increases in personal income tax, sales and use tax and vehicle
license fees to be approved by the voters. The LAO deems the Governor's proposals worthy of legislative
consideration, noting that in past budgets the State was unable to make significant inroads into its underlying
operating shortfall due to a reliance on one-time and short-term solutions; whereas, this year, an estimated
$6.6 billion improvement in state tax considerations, and$13 billion in budgetary solutions already adopted by
the Legislature,puts the State in the position to dramatically reduce its budget problem in coming years.
On June 15, 2011, both houses of the Legislature adopted a budget and related trailer bills which
varied significantly from the May Revision. Provisions substantially similar to the RDA Provisions were
adopted in a trailer bill in branch of the Legislature,except that the trailer bills included an alternative in which
redevelopment agencies could individually elect to make significant payments to school districts and other
taxing entities and remain in existence. On June 17, 2011 the Governor vetoed the approved budget, without
acting on the trailer bills.
On June 28, 2011, the State Legislature passed, the State budget for Fiscal Year 2011-12. The
Governor is expected to sign the budget prior to July 1,2011. The adopted State budget assumes that revenues
will be an additional$4 billion higher than projected in the May Revision, and contains a"trigger"mechanism
pursuant to which certain expenditure reductions will be made without further legislative action in the event
that the newly projected revenues are not expected to be realized (as determined by the State Director of
Finance). The adopted budget does not contain the tax extensions proposed in the May Revision.
Additionally, on June 29, 2011, the Governor signed the trailer bills relating to redevelopment agencies
discussed above.
The State's financial difficulties may affect the amount and timing of payments to or for the benefit
of cities of funds provided by the State. From time to time, some of the State's budget solutions may increase
the financial stress of cities and other local governments because they:(1)decrease local revenues(particularly
the property tax, road improvement funding, public safety or other categorical funded initiatives); or (2)
directly or indirectly increase demand for local programs (such as public safety or indigent health programs).
There can be no assurances that the State's financial difficulties will not materially adversely affect the
financial condition of the City.
The financial condition of the State is subject to a number of other risks in the future, including
particularly potential significant increases in required state contributions to PERS, increased financial
obligations related to other post-employment benefits,and increased debt service.
As noted above, the State is facing significant financial stress. There can be no assurances that, as a
result of the current State financial stress, the State will not significantly reduce or delay revenues to local
governments (including the City)or shift financial responsibility for programs to local governments as part of
its efforts to address the State financial difficulties. Aside from the proposal to eliminate redevelopment
described above no new proposals to reduce or delay material sources of revenues to cities were included in
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the Proposed Budget or the May Revision. However, in fiscal years 2008-09 and 2009-10, the State either
deferred payments or issued IOUs which could not immediately be cashed. IOUs continue to be discussed as a
near-term cash management solution for the State. No prediction can be made by the City as to what measures
the State will adopt to respond to the current or potential future financial difficulties. The City cannot predict
the final outcome of future State budget negotiations, the impact that such budgets will have on the City's
finances and operations or what actions will be taken in the future by the State Legislature and the Governor to
deal with changing State revenues and expenditures. Current and future State budgets will be affected by
national and State economic conditions and other factors, including the current economic downturn, over
which the City has no control. There can be no assurances that State actions to respond to State financial
difficulties will not adversely affect the financial condition of the City.
Two measures intended to address prior years' cumulative budget deficits and to attempt to implement
structural reform were both approved at the March 2, 2004 statewide primary election. The California
Economic Recovery Bond Act (Proposition 57) authorized the issuance of up to $15 billion of economic
recovery bonds to finance the State general fund deficit as of June 30, 2004 and other general fund obligations
undertaken prior to June 30, 2004. The economic recovery bonds are general obligations of the State and are
secured by a pledge of revenues from an increase in the State's share of the sales and use tax of one-quarter
cent, starting July 1, 2004. Such tax proceeds will revert to their prior allocation when the bonds are repaid.
The portion of sales and use tax that otherwise would have been allocated to local governments, including the
City, are decreased by a commensurate amount. Commencing in fiscal year 2004-05, local government's
share of local property tax revenues was restored by an amount equal to the one-quarter cent reduction in the
local sales and use tax, creating a revenue neutral effect on local agencies. The Balanced Budget Amendment
(Proposition 58) requires the State to adopt and maintain a balanced budget and establish a reserve, and
restricts future long-term deficit-related borrowing.
It should be noted that certain features and consequences of the Proposition 57 redirection could
impact the availability of the City's revenues to pay principal and interest on the Bonds. First,there may be a
reoccurring timing issue associated with the "backfill" of redirected sales and use taxes with property tax
revenue. This timing issue would not only impact the City's cash flow, but would cause the City to lose
investment earnings on the sales and use taxes it otherwise would have received on a monthly basis. Second,
the redirection of sales and use taxes by the State reflects the vulnerability of local government to the State
budget process. If, in the future, the State elects to further reallocate sales and use taxes or property tax
revenue, or any other source of revenue used by the City to make payments on the Certificates,there could be
an adverse impact on the City's ability to make Lease Payments.
See the caption "CONSTITUTION AND STATUTORY LIMITATIONS ON TAXES AND
APPROPRIATIONS—Proposition IA" below for a discussion of actions the State took in the current fiscal
year to shift certain property tax revenues from local governments(including the City).
The City does not believe that the State budget as enacted by the Legislature on June 28, 2011 will
have a material adverse impact on the City's General Fund finances. However,the City cannot predict what
actions will be taken in the future by the State Legislature and the Governor to address the State's current and
future budget deficits. Future State budgets could be affected by national economic conditions and other
factors over which the City will have no control. To the extent that the State's annual budget process results in
reduced revenues or increased expenses to the City, the City will be required to make adjustments to its
budget.
CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND APPROPRIATIONS
State Initiative Measures Generally
Under the State Constitution, the power of initiative is reserved to the voters for the purpose of
enacting statutes and constitutional amendments. For more than 25 years,the voters have exercised this power
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to place limitations on the ability of local governments to levy taxes and make expenditures, including through
the adoption of Proposition 13 ("Article XIIIA")and similar measures,the most recent of which was approved
as Proposition 218 in the general election held on November 5, 1996.
Any such initiative may affect the collection of fees, taxes and other types of revenue by local
agencies such as the City. Subject to overriding federal constitutional principles, such collection may be
materially and adversely affected by voter-approved initiatives, possibly to the extent of creating cash-flow
problems in the payment of outstanding obligations such as the Lease.
Article XlHA
Article XIIIA of the State Constitution limits the taxing powers of public agencies in the State.
Article XIIIA provides that the maximum ad valorem tax on real property cannot exceed 1%of the "full cash
value" of the property, and effectively prohibits the levying of any other ad valorem property tax except for
taxes above that level required to pay debt service on voter-approved general obligation bonds. "Full cash
value" is defined as "the County assessor's valuation of real property as shown on the 1975/76 tax bill under
`full cash value' or, thereafter, the appraised value of real property when purchased, newly constructed, or a
change in ownership has occurred after the 1975 assessment." The "full cash value" is subject to annual
adjustment to reflect inflation at a rate not to exceed 2% or a reduction in the consumer price index or
comparable local data. Article XIIIA has subsequently been amended to permit reduction of the "full cash
value" base in the event of declining property values caused by substantial damage, destruction or other
factors, and to provide that there could be no increase in the "full cash value" base in the event of
reconstruction of property damaged or destroyed in a disaster and in other special circumstances.
The foregoing limitation does not apply to ad valorem taxes or special assessments to pay the interest
and redemption charges on any indebtedness approved by the voters before July 1, 1978 or any bonded
indebtedness for the acquisition or improvement of real property approved by two-thirds of votes cast by the
voters voting on the proposition.
In the general election held November 4, 1986, State voters approved two measures, Propositions 58
and 60, which further amend the terms "purchase" and "change of ownership," for purposes of determining
full cash value of property under Article XIIIA, to exclude the purchase or transfer of. (1)real property
between spouses; and (2)the principal residence and the first $1,000,000 of other property between parents
and children. Proposition 60 amends Article XIIIA to permit the State Legislature to allow persons over age
55 who sell their residence and buy or build another of equal or lesser value within two years in the same city,
to transfer the old residence's assessed value to the new residence. In the March 26, 1996 general election,
voters approved Proposition 193, which extends the parents-children exception to the reappraisal of assessed
value. Proposition 193 amended Article XIIIA so that grandparents may transfer to their grandchildren whose
parents are deceased, their principal residences, and the first $1,000,000. of other property without a
re-appraisal of assessed value. From time to time the electorate has made other minor exceptions to the
reassessment provisions of Article XIIIA.
Article XIIIB
In addition to the limits that Article XIIIA imposes on property taxes that may be collected by local
governments, certain other revenues of the State and local governments are subject to an annual
"appropriations limit" or "Gann Limit" imposed by Article XIIIB of the State Constitution, which effectively
limits the amount of such revenues that government entities are permitted to spend. Article XIIIB, approved
by the voters in June 1979,was modified substantially by Proposition 111 in 1990. The appropriations limit of
each government entity applies to "proceeds of taxes," which consist of tax revenues, state subventions and
certain other funds, including proceeds from regulatory licenses, user charges or other fees to the extent that
such proceeds exceed "the cost reasonably borne by such entity in providing the regulation, product or
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service." No limit is imposed on the appropriation of funds which are not "proceeds of taxes," such as
reasonable user charges or fees,and certain other non-tax funds.
Article XIIIB also does not limit appropriation of local revenues to pay debt service on bonds existing
or authorized by January 1, 1979, or subsequently authorized by the voters, appropriations required to comply
with mandates of courts or the federal government, appropriations for qualified capital outlay projects, and
appropriation by the State of revenues derived from any increase in gasoline taxes and motor vehicle weight
fees above January 1, 1990 levels. The appropriations limit may also be exceeded in cases of emergency;
however,the appropriations limit for the three years following such emergency appropriation must be reduced
to the extent by which it was exceeded, unless the emergency arises from civil disturbance or natural disaster
declared by the Governor, and the expenditure is approved by two-thirds of the legislative body of the local
government.
The State and each local government entity has its own appropriations limit. Each year, the limit is
adjusted to allow for changes, if any,in the cost of living,the population of the jurisdiction, and any transfer to
or from another government entity of financial responsibility for providing services. Each school district is
required to establish an appropriations limit each year. In the event that a school district's revenues exceed its
spending limit,the district may increase its appropriations limit to equal its spending by taking appropriations
limit from the State.
Proposition 111 requires that each agency's actual appropriations be tested against its limit every two
years. If the aggregate "proceeds of taxes" for the preceding two-year period exceed the aggregate limit, the
excess must be returned to the agency's taxpayers through tax rate or fee reductions over the following two
years. If the State's aggregate "proceeds of taxes" for the preceding two-year period exceed the aggregate
limit, 50%of the excess is transferred to fund the State's contribution to school and college districts.
Proposition 62 and Proposition 218
A statutory initiative ("Proposition 62") was adopted by the voters of the State at the November 4,
1986 General Election which: (a) requires that any tax for general governmental purposes imposed by local
governmental entities be approved by resolution or ordinance adopted by two-thirds vote of the governmental
agency's legislative body and by a majority of the electorate of the governmental entity; (b) requires that any
special tax (defined as taxes levied for other than general governmental purposes) imposed by a local
governmental entity be approved by a two-thirds vote of the voters within the jurisdiction; (c)restricts the use
of revenues from a special tax to the purposes or for the service for which the special tax is imposed; (d)
prohibits the imposition of ad valorem taxes on real property by local governmental entities except as
permitted by Article XIIIA; (e)prohibits the imposition of transaction taxes and sales taxes on the sale of real
property by local governmental entities; and (f) requires that any tax imposed by a local governmental entity
on or after August 1, 1985 be ratified by a majority vote of the electorate within two years of the adoption of
the initiative or be terminated by November 15, 1988. The requirements imposed by Proposition 62 were
upheld by the State Supreme Court in Santa Clara County Local Transportation Authority v. Guardino;
11 Cal Ath 220;45 Cal.Rptr.2d 207(1995).
Proposition 62 applies to the imposition of any taxes or the effecting of any tax increases after its
enactment in 1986, but the requirements of Proposition 62 are largely subsumed by the requirements of
Proposition 218 for the imposition of any taxes or the effecting of any tax increases after November 5, 1996.
Since 1996, the City has not effected tax increases except in accordance with the voter approval
requirement of Proposition 218.
On November 5, 1996, State voters approved Proposition 218 — Voter Approval for Local
Government Taxes — Limitation on Fees, Assessments, and Charges — Initiative Constitutional Amendment.
Proposition 218 added Articles XIIIC and XIIID to the State Constitution, imposing certain vote requirements
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and other limitations on the imposition of new or increased taxes, assessments and property-related fees and
charges. Proposition 218 states that all taxes imposed by local governments will be deemed to be either
general taxes or special taxes. Special purpose districts, including school districts, have no power to levy
general taxes. No local government may impose, extend or increase any general tax unless and until such tax
is submitted to the electorate and approved by a majority vote. No local government may impose, extend or
increase any special tax unless and until such tax is submitted to the electorate and approved by a two-thirds
vote.
Proposition 218 also provides that no tax, assessment, fee or charge may be assessed by any agency
upon any parcel of property or upon any person as an incident of property ownership except: (i)the ad valorem
property tax imposed pursuant to Articles XIII and XIIIA of the State Constitution; (ii)any special tax
receiving a two-thirds vote pursuant to the State Constitution; and (iii)assessments, fees, and charges for
property related services as provided in Proposition 218. Proposition 218 then goes on to add voter
requirements for assessments and fees and charges imposed as an incident of property ownership, other than
fees and charges for sewer, water, and refuse collection services. In addition, all assessments and fees and
charges imposed as an incident of property ownership, including sewer, water, and refuse collection services,
are subjected to various additional procedures, such as hearings and stricter and more individualized benefit
requirements and findings. The effect of such new provisions will presumably be to increase the difficulty a
local agency will have in imposing,increasing or extending such assessments,fees and charges.
Proposition 218 also extended the initiative power to reducing or repealing any local taxes,
assessments, fees and charges. This extension of the initiative power is not limited to taxes imposed on or
after November 6, 1996, the effective date of Proposition 218, and could result in retroactive repeal or
reduction in any existing taxes, assessments, fees and charges, subject to overriding federal constitutional
principles relating to the impairments of contracts.
[Although a portion of the City's General Fund revenues are derived from general taxes purported to
be governed by Proposition 218, all of such taxes (or increases thereof) were either adopted prior to the
effective dates of such propositions or were approved(or ratified)by majority vote of the electorate.]
Proposition 218 provides that, effective July 1, 1997, fees that are charged"as an incident of property
ownership" may not "exceed the funds required to provide the property related services" and may only be
charged for services that are"immediately available to the owner of the property."
The foregoing discussion of Proposition 62 and Proposition 218 should not be considered an
exhaustive or authoritative treatment of the issues. The City does not expect to be in a position to control the
consideration or disposition of these issues and cannot predict the timing or outcome of any judicial or
legislative activity in this regard. Interim rulings, final decisions, legislative proposals and legislative
enactments may all affect the impact of Proposition 218 on the Base Rental Payments and Additional Rental
Payments as well as the market for the Bonds. Legislative and court calendar delays and other factors may
prolong any uncertainty regarding the effects of Proposition 218.
Like its antecedents, Proposition 218 is likely to continue to undergo both judicial and legislative
scrutiny before its ultimate impact on the City and its obligations can be determined. Certain provisions of
Proposition 218 may be examined by the courts for their constitutionality under both State and federal
constitutional law. The City is not able to predict the outcome of any such examination.
Proposition 1A
As part of Governor Schwarzenegger's agreement with local jurisdictions, Senate Constitutional
Amendment No. 4 was enacted by the Legislature and subsequently approved by the voters as Proposition lA
("Proposition lA") at the November 2004 election. Proposition I amended the State Constitution to, among
other things, reduce the State Legislature's authority over local government revenue sources by placing
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restrictions on the State's access to local governments' property, sales, and vehicle license fee revenues as of
November 3,2004. Beginning with State fiscal year 2008-09,the State may borrow up to 8%of local property
-tax revenues, but only if the Governor proclaims that such action is necessary due to a severe State fiscal
hardship and two-thirds of both houses of the State Legislature approve the borrowing. The amount borrowed
is required to be paid back within three years. The State also will not be able to borrow from local property tax
revenues for more than 2 fiscal years within a period of 10 fiscal years. In addition,the State cannot reduce the
local sales tax rate or restrict the authority of local governments to impose or change the distribution of the
Statewide local sales tax.
The State fiscal year 2009-10 budget included a Proposition IA diversion of$1.935 billion in local
property tax revenues from cities, counties, and special districts to the State to offset State general fund
spending. Such diverted revenues must be repaid, with interest, no later than June 30, 2013. The amount of
the Proposition IA diversion from the City was $2,824,258. The City participated in a State-sponsored
program financing the Proposition IA diversion and, accordingly, received its full share of property tax
revenues.
Proposition 26
On November 2, 2010, voters in the State approved Proposition 26, which amends Article XIIIC of
the State Constitution to expand the definition of"tax" to include "any levy, charge, or exaction of any kind
imposed by a local government"except the following: (1)a charge imposed for a specific benefit conferred or
privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the
reasonable costs to the local government of conferring the benefit or granting the privilege; (2)a charge
imposed for a specific government service or product provided directly to the payor that is not provided to
those not charged, and which does not exceed the reasonable costs to the local government of providing the
service or product; (3)a charge imposed for the reasonable regulatory costs to a local government for issuing
licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing
orders, and the administrative enforcement and adjudication thereof; (4)a charge imposed for entrance to or
use of local government property, or the purchase, rental, or lease of local government property; (5)a fine,
penalty, or other monetary charge imposed by the judicial branch of government or a local government, as a
result of a violation of law; (6)a charge imposed as a condition of property development; and (7)assessments
and property-related fees imposed in accordance with the provisions of Article XIIID. Proposition 26 provides
that the local government bears the burden of proving by a preponderance of the evidence that a levy, charge,
or other exaction is not a tax, that the amount is no more than necessary to cover the reasonable costs of the
governmental activity, and that the manner in which those costs are allocated to a payor bear a fair or
reasonable relationship to the payor's burdens on,or benefits received from,the governmental activity.
Unitary Property
Some amount of property tax revenue of the City is derived from utility property which is considered
part of a utility system with components located'in many taxing jurisdictions ("unitary property"). Under the
State Constitution, such property is assessed by the State Board of Equalization as part of a"going concern"
rather than as individual pieces of real or personal property. State-assessed unitary and certain other property
is allocated to the counties by the State Board of Equalization, taxed at special county-wide rates, and the tax
revenues distributed to taxing jurisdictions (including the City)according to statutory formula generally based
on the distribution of taxes in the prior year.
Future Initiatives
Article XIIIA, Article XI1IB, Proposition 62, Proposition 218, Proposition 1A and Proposition 26
were each adopted as measures that qualified for the ballot through the State's initiative process. From time to
time other initiative measures could be adopted, further affecting the City's revenues. The nature and impact
of these measures cannot be anticipated by the City.
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THE AUTHORITY
The Authority was established pursuant to a Joint Exercise of Powers Agreement dated as of
November 19, 2002, by and between the City and the Redevelopment Agency of the City of Diamond Bar in
accordance with the provisions of the Bond Law. The Authority was created for the purpose of providing
financing for public capital improvements for the City through the acquisition by the Authority of such public
capital improvements and/or the purchase by the Authority of local obligations within the meaning of the Bond
Law. Under the Bond Law, the Authority has the power to pay and finance the costs of acquiring, installing
and constructing the Leased Property. The Authority has no independent staff and consequently will be
dependent upon the City's officers and employees to administer its programs on its behalf. The Board of
Directors of the Authority is composed of the members of the City Council.
CERTAIN LEGAL MATTERS
Certain legal matters related to this Reoffering Memorandum will be passed upon by Stradling Yocca
Carlson & Rauth, a Professional Corporation, Bond Counsel, for the Authority and the City by the City
Attorney of the City of Diamond Bar, and for the Trustee by its counsel.
TAX EXEMPTION
Fulbright & Jaworski L.L.P., acting as prior bond counsel, previously opined in an opinion dated
December 19,2002(the"2002 Opinion")that the Internal Revenue Code of 1986(the"Code")imposes certain
requirements that must be met subsequent to the issuance and delivery of the Bonds for interest thereon to be
and remain excluded pursuant to section 103(a) of the Code from the gross income of the owners thereof for
federal income tax purposes. In the 2002 Opinion, Fulbright & Jaworski L.L.P. also opined that
noncompliance with such requirements could cause the interest on the Bonds to be included in the gross
income of the owners thereof for federal income tax purposes retroactive to the date of issuance of the Bonds.
The 2002 Opinion noted that the Authority and the City have covenanted to maintain the exclusion of the
interest on the Bonds from the gross income of the owners thereof for federal income tax purposes.
In the 2002 Opinion, Fulbright& Jaworski L.L.P. further opined that under existing law, interest on
the Bonds is exempt from personal income taxes of the State of California and that, assuming compliance with
the aforementioned covenant, interest on the Bonds is excluded pursuant to section 103(a) of the Code from
the gross income of the owners thereof for federal income tax purposes. In the 2002 Opinion, Fulbright &
Jaworski L.L.P. also opined that, assuming compliance with the aforementioned covenant, the Bonds are not
"specified private activity bonds" within the meaning of section 57(a)(5) of the Code and, therefore, the
interest on the Bonds will not be treated as an item of tax preference for purposes of computing the alternative
minimum tax imposed by section 55 of the Code. The 2002 Opinion noted that the receipt or accrual of
interest on the Bonds owned by a corporation may affect the computation of its alternative minimum taxable
income, upon which the alternative minimum tax is imposed, to the extent that such interest is taken into
account in determining the adjusted current earnings of that corporation (75 percent of the excess, if any, of
such adjusted current earnings over the alternative minimum taxable income being an adjustment to alternative
minimum taxable income(determined without regard to such adjustment or to the alternative tax net operating
loss deduction)).
Fulbright & Jaworski L.L.P. noted in the 2002 Opinion that it had not undertaken to advise in the
future whether any events after the date of issuance of the Bonds may affect the tax status of interest on the
Bonds or the tax consequences of the ownership of the Bonds and that no assurance can be given that future
legislation, or amendments to the Code, if enacted into law, will not contain provisions that could directly or
indirectly reduce the benefit of the exemption of interest on the Bonds from personal income taxation by the
State of California or of the exclusion of the interest on the Bonds from the gross income of the owners thereof
for federal income tax purposes. Furthermore, Fulbright& Jaworski L.L.P. expressed no opinion in the 2002
Opinion as to any federal, state or local tax law consequences with respect to the Bonds,or the interest thereon,
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if any action is taken with respect to the Bonds or the proceeds thereof predicated or permitted upon the advice
or approval of bond counsel if such advice or approval is given by counsel other than Fulbright & Jaworski
L.L.P.
Fulbright & Jaworski L.L.P. noted in the 2002 Opinion that, although it was of the opinion that
interest on the Bonds is exempt from state personal income tax and excluded from the gross income of the
owners thereof for federal income tax purposes, an owner's federal,state or local tax liability may be otherwise
affected by the ownership or disposition of the Bonds and that the nature and extent of these other tax
consequences will depend upon the owner's other items of income or deduction. The 2002 Opinion notes that,
without limiting the generality of the foregoing, prospective purchasers of the Bonds should be aware that:
(i)section 265 of the Code denies a deduction for interest on indebtedness incurred or continued to purchase or
carry the Bonds or, in the case of a financial institution,that portion of an owner's interest expense allocated to
interest on the Bonds;(ii)with respect to insurance companies subject to the tax imposed by section 831 of the
Code,section 832(b)(5)(B)(i)reduces the deduction for loss reserves by 15 percent of the sum of certain items,
including interest on the Bonds; (iii) interest on the Bonds earned by certain foreign corporations doing
business in the United States could be subject to a branch profits tax imposed by section 884 of the Code; (iv)
passive investment income, including interest on the Bonds, may be subject to federal income taxation under
section 1375 of the Code for Subchapter S corporations that have Subchapter C earnings and profits at the
close of the taxable year if greater than 25% of the gross receipts of such Subchapter S corporation is passive
investment income; (v) section 86 of the Code requires recipients of certain Social Security and certain
Railroad Retirement benefits to take into account, in determining the taxability of such benefits, receipts or
accruals of interest on the Bonds; and (vi) under section 32(i) of the Code, receipt of investment income,
including interest on the Bonds, may disqualify the recipient thereof from obtaining the earned income credit.
In the 2002 Opinion, Fulbright & Jaworski L.L.P. expressed no opinion regarding any such other tax
consequences.
Fulbright& Jaworski L.L.P. also noted in the 2002 Opinion that its opinion is not a guarantee of a
result, but represents its legal judgment based upon its review of existing statutes, regulations, published
rulings and court decisions and the representations and covenants of the Authority described above. The 2002
Opinion notes that no ruling has been sought from the Internal Revenue Service(the"Service")with respect to
the matters addressed in the opinion of Bond Counsel, and Bond Counsel's opinion is not binding on the
Service. The 2002 Opinion also noted that the Service has an ongoing program of auditing the tax-exempt
status of the interest on municipal obligations and that, if an audit of the Bonds is commenced, under current
procedures the Service is likely to treat the Authority as the"taxpayer,"and the Owners would have no right to
participate in the audit process. The 2002 Opinion further noted that in responding to or defending an audit of
the tax-exempt status of the interest on the Bonds,the Authority may have different or conflicting interest from
the Owners and that the disclosure of the initiation of an audit may adversely affect the market price of the
Bonds,regardless of the final disposition of the audit.
Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, Bond
Counsel,has made no attempt to update or reaffirm the 2002 Opinion of Fulbright& Jaworski L.L.P. since the
date thereof.
On September 12, 2011, President Obama presented certain details to the public regarding the
American Jobs Act(the "Act"), which, if enacted, could result in additional federal income or state tax being
imposed on owners of tax-exempt state or local obligations, such as the Bonds. If enacted, it is possible that
the Act could affect the market value or liquidity of the Bonds. All potential purchasers should consult their
tax advisors regarding the Act and collateral tax consequences relating to the Bonds.
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LITIGATION
The Authority
There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any
court, regulatory agency, public board or body, pending or, to the knowledge of the Authority, threatened
against the Authority affecting the existence of the Authority or the titles of its directors or officers to their
respective offices or seeking to restrain or to enjoin the reoffering of the Bonds, or in any way contesting or
affecting the validity or enforceability of the Bonds, the Indenture, the Lease, or any action of the Authority
contemplated by any of said documents, or in any way contesting the completeness or accuracy of this
Reoffering Memorandum or any amendment or supplement thereto, or contesting the powers of the Authority
or its authority with respect to the Bonds or any action of the Authority contemplated by any of said
documents,nor to the knowledge of the Authority,'is there any basis therefor.
The City
There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any
court,regulatory agency,public board or body,pending or,to the knowledge of the City,threatened against the
City affecting the existence of the City or the titles of its directors or officers to their respective offices or
seeking to restrain or to enjoin the reoffering of the Bonds,or in any way contesting or affecting the validity or
enforceability of the Bonds, the Indenture, the Lease, or any action of the City contemplated by any of said
documents, or in any way contesting the completeness or accuracy of this Reoffering Memorandum or any
amendment or supplement thereto, or contesting the powers of the City or its authority with respect to the
Bonds or any action of the City contemplated by any of said documents, nor to the knowledge of the City, is
there any basis therefor.
The City has pending against it several claims and lawsuits arising in the normal course of City
operations. The City is of the view that, if determined adversely to the City, such claims and lawsuits would
not, in the aggregate,materially impair the City's ability to make Base Rental Payments and Additional Rental
Payments when due.
FINANCIAL ADVISOR
The Authority has retained Fieldman, Rolapp & Associates, Inc., Irvine, California (the "Financial
Advisor") as financial advisor in connection with the reoffering of the Bonds. The Financial Advisor is not
obligated to undertake, and has not undertaken to make, an independent verification or to assume any
responsibility for the accuracy,completeness or fairness of the information contained herein.
The Financial Advisor is an independent advisory firm and is not engaged in the business of
underwriting,trading or distributing municipal or other public securities.
RATING
Standard&Poor's ("S&P") is expected to assign the Bonds the rating of"_". Such rating reflects
only the view of S&P, and explanation of the significance of the rating may be obtained from S&P. There is
no assurance that the rating will continue for any given period of time or that it will not be revised downward
or withdrawn entirely by S&P, if in the judgment of S&P circumstances so warrant. Any such downward
revision or withdrawal of the rating may have an adverse effect on the market price of the Bonds.
CONTINUING DISCLOSURE
The City has covenanted in a,Continuing Disclosure Certificate, dated December 1, 2011 (the
"Continuing Disclosure Certificate"), for the benefit of the holders and beneficial owners of the Bonds to
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provide certain financial information and operating data relating to the City by 270 days following the end of
the City's Fiscal Year(currently its Fiscal Year ends on the last day of June), commencing with the report for
Fiscal Year ending June 30, 2011, and to provide notices of the occurrence of certain enumerated material
events. The Annual Report and the notices of material events will be filed by the City with the Municipal
Securities Rulemaking Board's Electronic Municipal Market Access System for municipal securities
disclosures, maintained on the Internet at http://emma.msrb.org/. The specific nature of the information to be
contained in the Annual Report and the notice of material events is set forth in Appendix F—"PROPOSED
FORM OF CONTINUING DISCLOSURE CERTIFICATE." These covenants have been made in order to
assist the Remarketing Agent in complying with Rule 15c2-12(b)(5). The City has not previously entered into
an undertaking with respect to Rule 15c-12.
MISCELLANEOUS
All of the preceding summaries of the Indenture, the Lease, the Site Lease, the Assignment
Agreement, the Bond Law, other applicable legislation, agreements and other documents are made subject to
the provisions of such documents respectively and do not purport to be complete statements of any or all of
such provisions. Reference is hereby made to such documents on file with the Authority for further
information in connection therewith.
This Reoffering Memorandum does not constitute a contract with the purchasers of the Bonds. Any
statements made in this Reoffering Memorandum involving matters of opinion or estimates, whether or not
expressly stated, are set forth as such and not as representations of fact, and no representation is made that any
of the estimates will be realized.
The execution and delivery of this Reoffering Memorandum by the Executive Director of the
Authority have been duly authorized by the Board of Directors of the Authority.
CITY OF DIAMOND BAR PUBLIC FINANCING
AUTHORITY
By
Executive Director
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APPENDIX A
CERTAIN ECONOMIC AND DEMOGRAPHIC INFORMATION
CONCERNING THE CITY OF DIAMOND BAR
General
The City of Diamond Bar (the "City") is located in Los Angeles County approximately thirty miles
east of downtown Los Angeles. The City, incorporated on April 18, 1989, has a population of approximately
55,766 as of January 1,2011,according to the California State Department of Finance.
Location
The City is a 14.9 square-mile area centrally located between the Los Angeles, Orange, and
San Bernardino counties. The City is adjacent to the Pomona(60) and Orange(57)freeways. Within a short
distance are three major airports,two shipping ports and a variety of commercial/commuter rail facilities. The
City is served by 137 miles of paved streets and alleys, 146.88 miles of sanitary sewers and 31.95 miles of
storm drains.
City Government
Diamond Bar is a general law city operating under California state law. The five City Council
members who govern the City are elected for overlapping four-year terms. The Mayor is selected by the
Council from among its members, and serves in that special capacity for a one-year term. The City Council
appoints a City Manager and City Attorney. The City Manager appoints the City Clerk. In addition, the
Council appoints the members of the Planning Commission,Traffic and Transportation Commission and Parks
and Recreation Commission. The City employs a staff of approximately 47 full-time employees under the
direction of the City Manager.
Services and Facilities
The City provides a number of municipal services including administration, community development
(which includes planning, economic development, building and safety management and code enforcement),
public works (which includes engineering, capital projects administration, street maintenance contract
management, traffic and transportation matters, engineering contract management, solid waste contract
management and subsidized transit ticket sales), community services (which includes senior services, park
maintenance, recreation services and landscape maintenance) and community relations. A total of 47
permanent employees help provide these services.
The City also relies on contracted services which benefits the City by reducing expenses while
providing a high degree of flexibility in responding to changing economic conditions. Contracted services
include police protection, building and safety, street maintenance, park maintenance, capital improvement
projects,animal control,attorney services and engineering.
The City's primary public safety services are provided by the County of Los Angeles. The Los
Angeles County Fire Department serves residents and business operators from three strategically located sites
within the City,and support from the Los Angeles County Sheriff's Department is dispatched from the Walnut
substation facility. Water services are provided by the Walnut Valley Water District. Other public safety
services—animal control, emergency services and risk management—are either provided by the City or are
supplied by outside contract agencies.
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Population
The historic population of the City, the County and the State of California (the "State") is shown
below.
City of Diamond Bar,County of Los Angeles and State of California
Population Estimates,2007 through 2011
(as of January 1)
Year City of Diamond Bar County of Los Angeles State of California
2007 59,629 10,231,000 37,463,609
2008 59,920 10,285,296 37,871,509
2009 60,184 10,355,053 38,255,508
2010 61,019 10,441,080 38,648,090
2011 55,766 9,858,981 37,510,766
Source: State of California,Department of Finance,E•4 Population Estimates for Cities,Counties and the State.
Construction
The following table shows building permit valuations and new housing units in the City for 2006
through 2010.
CITY OF DIAMOND BAR
Building Permit Valuation and New Housing Units
2006 2007 2008 2009 2010
Residential
Single Family $ 25,706,000 $ 15,207,000 $ 5,300,000 $ 2,070,000 $ 1,423,982
Multi-Family 0 0 0 0 0
Alteration/Additions 17.486,293 14,821,205 9,811,713 8.804,509 5.479,857
Total 43.192.293 30.028.205 15.111.713 10.874.509 $ 6.903,839
Non-Residential
New Commercial $ 6,000,000 $ 3,663,000 $ 2,200,000 $ 0 $ 0
New Industrial 0 0 0 0 0
Other(') 2,593,000 1,509,100 888,780 762,800 676,307
Alteration/Additions 1.681,000 7,948,858 1,874,350 5,257,925 6,178,913
Total $ 10 274.000 $ 13.120. 58 $ 4.963.130 S.. 6.020.725 $ 6.855.220
Total All Property(2) 53.466.293 43.]49.163 S 20.074.843 16.895.234 $ 13.759.059
New Housing Units
Single Family Units 123 56 5 3 1
Multi-Family Units 0 0 0 0 0
Total 123 56 5 3 1
Includes churches and religious building,hospitals and institutional buildings,schools and educational buildings,residential
garages,public works and utilities buildings and non-residential alterations and additions.
(2) May not add up due to rounding.
Source: Construction Industry Research Board.
Educational Facilities
The City's educational facilities are provided by the Pomona Unified and Walnut Valley Unified
School Districts. The City has nine elementary schools, three middle schools, two high schools and a public
library.In addition, one private school,Mt.Calvary,for grades K-8,is located in the City.
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Local colleges and universities include:Mt. San Antonio Community College,Cal State Fullerton,Cal
Poly Pomona, Claremont Colleges, Claremont Graduate School,University of La Verne and the University of
Phoenix.
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APPENDIX B
AUDITED FINANCIAL STATEMENTS OF THE CITY FOR THE
FISCAL YEAR ENDED JUNE 30,2010
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APPENDIX C
SUMMARY OF PRINCIPAL LEGAL DOCUMENTS
The following is a summary of certain provisions of the Indenture and the Lease which are not
described elsewhere. This summary does not purport to be comprehensive and reference should be made to
the respective agreement for a full and complete statement of the provisions thereof.
DEFINITIONS
"Additional Rental" means the amounts specified as such in the Lease, as such amounts may be adjusted
from time to time in accordance with the terms thereof.
"Agency" means the Redevelopment Agency of the City of Diamond Bar, a public body, corporate and
public.
"Alternate Confirming Bank" means a commercial bank, savings and loan association, insurance
company,or other financial institution which has issued an Alternate Confirming Letter of Credit.
"Alternate Confirming Letter of Credit" means a Confirming Letter of Credit issued by an Alternate
Confirming Bank.
"Alternate Credit Facility" means a credit facility delivered to the Trustee pursuant to the Indenture,
including, but not limited to, an irrevocable letter of credit, an investment contract, a guaranty, a bond insurance
policy, a surety bond or other financial arrangement which secures the payment of the principal of and interest on
the Bonds when due, or such an instrument, together with a separate instrument such as an irrevocable letter of
credit, a guaranty, a committed line of credit or an investment contract, issued by a financial institution pursuant to
the Indenture which provides a method of purchasing Bonds tendered for purchase on a Tender Date.
"Assignment Agreement" means that certain Assignment Agreement dated as of December 1, 2002 by
and between the Authority and the Trustee.
"Authority"means the City of Diamond Bar Public Financing Authority, established pursuant to the laws
of the State of California, organized and created pursuant to the terms and conditions of the Joint Powers
Agreement.
"Authorized Denominations"means (i)with respect to the Bonds bearing interest at the Weekly Rate or
Daily Rate, $100,000 or any integral multiple of$5,000 in excess thereof and(ii)with respect to the Bonds bearing
interest at the Fixed Rate,$5,000 or any integral multiple of$5,000.
"Authorized Investments"means, if and to the extent permitted by law:
(1) Direct obligations of the United States of America (including obligations issued or held
in book-entry form on the books of the Department of the Treasury of the United States of America)or obligations
the timely payment of the principal of and interest on which are fully guaranteed by the United States of America,
including instruments evidencing a direct ownership interest in securities described in this clause such as Stripped
Treasury Coupons rated or assessed in the highest Rating Category by S&P and Moody's and held by a custodian
for safekeeping on behalf of holders of such securities.
(2) Bonds or notes which are exempt from federal income taxes and for the payment of
which cash or obligations described in clause (1) of this definition in an amount sufficient to pay the principal of,
premium, if any, and interest on when due have been irrevocably deposited with a trustee or other fiscal depositary
and which are rated in the highest Rating Category by S&P and Moody's.
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(3) Obligations, debentures,notes or other evidence of indebtedness issued or guaranteed by
any of the following: Federal Home Loan Bank System, Government National Mortgage Association, Farmer's
Home Administration,Federal Home Loan Mortgage Corporation or Federal Housing Administration;provided that
with respect to the funds and accounts established under the Indenture, such obligations shall at no time exceed an
amount equal to ten percent(10%)of the aggregate principal amount of the Bonds Outstanding.
(4) Deposit accounts, certificates of deposit or savings accounts (i)fully insured by the
Federal Deposit Insurance Corporation or(ii)with banks whose short term obligations are rated no lower than A-1
by S&P and P-1 by Moody's.
(5) Federal funds or banker's acceptances with a maximum term of one year of any bank that
has an unsecured, uninsured and unguaranteed obligation rating of"Prime-1" or "A3" by Moody's and "A-1" or
"A"or better by S&P(including the Trustee).
(6) Repurchase obligations with a term not exceeding 30 days pursuant to a written
agreement between the Trustee and either a primary dealer on the Federal Reserve reporting dealer list which falls
under the jurisdiction of the SIPC or a federally chartered commercial bank whose long-term debt obligations are
rated A or better by S&P and Moody's, with respect to any security described in clause (1); provided that the
securities which are the subject of such repurchase obligation(i)must be free and clear of all liens,(ii)in the case of
a S1PC dealer, were not acquired pursuant to a repurchase or reverse repurchase agreement, (iii)must be deposited
with the Trustee and maintained through weekly market valuations in an amount equal to 104% of the invested
funds plus accrued interest;and further provided that the Trustee must have a valid fist perfected security interest in
such securities.
(7) Taxable government money market portfolios that have a rating by S&P of Am-G or Am
or better and rated in one of the three highest rating categories of Moody's consisting of securities issued or
guaranteed as to payment of principal and interest by the full faith and credit of the United States, subject to a
maximum permissible limit equal to six months of principal and interest on the Bonds.
(8) Tax-exempt government money market portfolios that have a rating by S&P of Am-G or
Am or better and rated in one of the three highest rating categories of Moody's consisting of securities which are
rated in the highest Rating Categories of S&P and Moody's subject to a maximum permissible limit equal to six
months of principal and interest on the Bonds.
(9) Money market funds registered under the Investment Company Act of 1940,the shares in
which are registered under the Securities Act of 1933 and that have a rating by S&P of AAAm-G or AAAm and
rated in one of the two highest Rating Categories of Moody's,including those managed or advised by the Trustee or
its affiliates.
(10) The Local Agency Investment Fund of the State, created pursuant to Section 16429.1 of
the California Government Code,to the extent the Trustee is authorized to register such investment in its name.
"Authorized Representative" means the Chairperson, Vice Chairperson, Executive Director, .Treasurer,
Secretary or any other person designated as an Authorized Representative by a Written Certificate of the Authority
signed as its Chairperson and filed with the Authority and the Trustee.
"Available Moneys" means (a)with respect to any Bond Payment Date occurring during the term of a
Credit Facility, moneys (other than moneys received from draws under the Credit Facility or the Confirming Letter
of Credit or remarketing proceeds) which have been on deposit with and pursuant to written direction of the
Authority and segregated by the Trustee for at least 123 days;during or prior to which no Event of Bankruptcy shall
have occurred, as evidenced by a certificate of the Authority to the Trustee, upon which the Trustee may
conclusively rely, (b)moneys received from draws under the Credit Facility, the Confirming Letter of Credit and
remarketing proceeds and(c)proceeds with respect to the refunding of any of the Bonds.
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"Base Rental" means the amounts specified as such in the Lease, as such amounts may be adjusted from
time to time in accordance with the terms thereof.
"Bond Counsel" means an attorney or firm of attorneys of recognized national standing in the field of
municipal finance selected by the Authority.
"Bond Payment Date" means (a)until the Fixed Rate Conversion, the first Business Day of each month
commencing January 2, 2003, to and including the Fixed Rate Conversion Date, and (b)after the Fixed Rate
Conversion Date, each January 1 and July 1 commencing on the first January 1 or July 1 which is at least 75 days
after the Fixed Rate Conversion Date.
"Bond Year"means each twelve-month period extending from July 2 in one calendar year to July 1 of the.
succeeding calendar year,both dates inclusive,except that the first Bond Year shall extend from the Closing Date to
July 1,2003.
"Bonds"means the City of Diamond Bar Public Financing Authority Variable Rate Lease Revenue Bonds,
2002 Series A (Senior/Community Center Project), authorized by, and at any time Outstanding pursuant to the
Indenture.
"Business Day" means any day other than a Saturday, Sunday, or a day on which banking institutions or
governmental offices in the State are authorized or required to close, or a day on which the Federal Reserve System
is closed.
"Certificate," "Statement," "Request," "Requisition" or "Order" means, respectively, a written
certificate, statement,request,requisition or order in its name by, with respect to the City,the City Manager, or by
any other officer of the City duly authorized by the City for that purpose, and, with respect to the Authority, the
Chairperson, Vice Chairperson, Member, Treasurer or Secretary of the Authority, or by any other officer of the
Authority duly authorized by the Authority for that purpose. Any such instrument and supporting opinions or
representation,and the two or more so combined shall be read and construed as a single instrument.
"City" means the City of Diamond Bar, California, a municipal corporation duly organized and existing
under the Constitution and Laws of the State.
"Closing Date"means December 19,2002,the date on which the Bonds are delivered by the Authority to
the original purchaser thereof.
"Code"means the Internal Revenue Code of 1986,as amended and any regulations promulgated from time
to time thereunder.
"Confirmation Agreement" means the Confirmation Agreement dated as of December 1, 2002, between
Union Bank of California,N.A. and the California State Teachers'Retirement System,providing for the Confirming
Letter of Credit,or any similar agreement with respect to any Alternate Confirming Letter of Credit, in each case as
such agreement is originally executed or as such document may be modified,supplemented or amended.
"Confirming Bank" means (a)the California State Teachers' Retirement System, and (ii)any Alternate
Confirming Bank.
"Confirming Letter of Credit" means'(i)the irrevocable letter of credit issued by the California State
Teachers' Retirement System in favor of the Trustee pursuant to the Confirmation Agreement, or(ii)any Alternate
Confirming Letter of Credit.
"Continuing Disclosure Agreement"means any continuing disclosure agreement or continuing disclosure
certificate by the City relating to the Bonds, as originally executed and as it may be amended from time to time in
accordance with the terms thereof
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"Costs of Issuance" means all items of expense directly or indirectly payable by or reimbursable to the
Authority or the City, relating to the authorization, issuance, sale and delivery of the Bonds, including, but not
limited to, printing expenses, title insurance policy premiums with respect to the Leased Property, rating agency
fees, any premium or other fees with respect to insurance provided in connection with the issuance of the Bonds,
including but not limited to, municipal bond insurance,rental interruption insurance and other types of insurance as
may be required by the Lease, filing and recording fees, initial fees and charges and the first annual administrative
fee of the Trustee, fees and costs associated with obtaining any Credit Facility or Confirming Letter of Credit
obtained in connection with the issuance of the Bonds, fees, charges and disbursements of attorneys, financial
advisors, accounting firms, consultants and other professionals, fees and charges for preparation, execution and
safekeeping of the Bonds,and any other costs,charges or fees in connection with the original issuance of the Bonds.
"Costs of Issuance Fund"means the fund so designated and established pursuant to the Indenture.
"Credit Entity"means Union Bank of California,N.A., as the issuer of the Credit Facility being delivered
on the Closing Date with respect to the Bonds and the issuer of any Alternate Credit Facility delivered under the
Indenture from time to time. All references and requirements therein with respect to notices or other
communications to,or consents from,the Credit Entity shall include the providers of the Credit Facility.
"Credit Facility" means an irrevocable letter of credit, an investment contract, a guaranty, a bond
insurance policy, a surety bond or other financial arrangement which secures the payment of the principal and
interest on the Bonds when due, or such an instrument, together with a separate instrument, such as an irrevocable
letter of credit, a guaranty, a committed line of credit, an investment contract or a standby purchase agreement,
issued by a financial institution, which provides a method of purchasing Bonds tendered for purchase on a Tender
Date,including an Alternate Credit Facility.
"Credit Facility Account" means the account by that name in the Debt Service Fund established in
accordance with the Indenture.
"Credit Facility Bond"means any Bank Bond,as defined in the Reimbursement Agreement.
"Credit Facility Prepayment Account" means the account by that name in the Redemption Fund
established in accordance with the Indenture.
"Daily Rate"means the interest rate with respect to the Daily Rate Period.
"Daily Rate Period"means each period during which Bonds bear interest at a Daily Rate.
"Debt Service Fund"means the fund so designated and established pursuant to the Indenture.
"DTC"means The Depository Trust Company,New York,New York,and its successors and assigns.
"Event of Default"means any of the events specified in the Indenture.
"Financial Newspaper or Journal" means The Wall Street Journal or The Bond Buyer or any other
newspaper or journal containing financial news, printed in the English language, customarily published on each
Business Day and circulated in California,and selected by the Trustee.
"Fiscal Year"means the year beginning on July 1 of each year and ending on the next succeeding June 30,
or any other twelve-month period thereinafter selected and designated as the official fiscal year period of the
Authority.
"Fixed Rate"means the fixed interest rate or rates applicable to the Bonds established in accordance with
the Indenture.
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"Fixed Rate Conversion Date" means the date on which the rate of interest home by the Bonds is
converted to the Fixed Rate.
"Hazardous Substances" means any substances, wastes, pollutants or contaminants now or thereafter
included in such (or any similar) term under any federal, state or local statute, regulation, ordinance or code now
existing or hereafter enacted or amended.
"Indenture"means the Indenture,dated as of December 1,2002,by and between the Authority and Union
Bank of California, N.A., as originally executed and entered into and as it may from time to time be amended or
supplemented in accordance therewith.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond Service," 30
Montgomery Street, 10th Floor; Jersey City, New Jersey 07302, Attention: Editor; Kenny Information Services'
"Called Bond Service," 65 Broadway, 16th Floor, New York, New York 10006; Moody's "Municipal and
Government," 5250 77 Center Drive, Suite 150, Charlotte, North Carolina 28217, Attention: Municipal News
Reports; S&P's "Called Bond Record,"25 Broadway, 3rd Floor,New York,New York 10004; and, in accordance
with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such other
information services providing information with respect to called bonds as the Authority may designate in a Written
Certificate of the Authority delivered to the Trustee.
"Insurance Consultant" means an individual or firm employed by the City as an independent insurance
consultant,experienced in the field of risk management.
"Interest Period"means the period from each Wednesday to and including the following Tuesday.
"Interest Rate Conversion Date"means any date (which must be a Business Day)on which the interest
rate borne by the Bonds is established at a new rate for a corresponding interest rate period as set forth in the
Indenture,other than a Fixed Rate Conversion Date.
"Joint Powers Agreement" means that certain Joint Exercise of Powers Agreement, dated as of
November 19, 2002,by and between the City and the Agency creating the Authority for the purposes, among other
things, of assisting in the financing of Public Capital Improvements, as such term is defined in Section 6585(g) of
the California Government Code,together with any amendments thereof and supplements thereto.
"Law" means Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the
California Government Code.
"Lease"means that certain Lease Agreement dated as of December 1, 2002 by and between the Authority,
as lessor, and the City, as lessee, as originally executed and as it may from time to time be amended or
supplemented in accordance therewith.
"Lease Payment Account" means the account by that name in the Debt Service Fund established in
accordance with the Indenture.
"Lease Prepayment Account" means the account by that name established and held by the Trustee
pursuant to the Indenture.
"Leased Property"means that certain land and facilities described in Exhibit A to the Lease.
"Liquidity Account" means the account by that name in the Tender Fund established in accordance with
the Indenture.
"Mandatory Tender Date" means (1)the Bond Payment Date on or prior to the date at least five days
prior to the date on which the Credit Facility or Confirming Letter of Credit is scheduled to expire or terminate in
accordance with its respective terms and the Trustee has not received notice at least 40 days prior to such Bond
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Payment Date that an Alternate Credit Facility or Alternate Confirming Letter of Credit, as applicable, will be
provided, (2)on any Interest Rate Conversion Date for which a notice can be given (3)the first Business Day to
occur on or after the seventh day following receipt by the Trustee of notice from the Credit Entity or the Confirming
Bank of the occurrence of an event of default under the Reimbursement Agreement or the Confirmation Agreement,
as applicable, or that the Credit Entity will not reinstate the interest portion of the Credit Facility as provided in the
Indenture,(4)the Fixed Rate Conversion Date, (5)the last Business Day prior to the effective date of any Alternate
Credit Facility and/or Alternate Confirming Letter of Credit, and(6)the date of any draw on the Confirming Letter
of Credit,
"Maximum Rate" means 12% per annum calculated on the basis of a 365-day year or 366-day year, as
applicable, for actual days elapsed, during the Weekly Rate Period or Daily Rate Period and 12% per annum
calculated on the basis of a 360-day year of twelve 30-day months on and after the Fixed Rate Conversion Date.
"Moody's"means Moody's Investors Service or any successor corporation thereto.
"Net Proceeds" means any insurance proceeds or condemnation award paid with respect to the Leased
Property remaining after payment therefrom of all expenses incurred in the collection thereof.
"Nominee" means the nominee of the Depository, which may be the Depository, or any nominee
substituted by the Depository pursuant to the Indenture.
"Opinion of Counsel" means a written opinion of counsel of recognized national standing in the field of
law relating to municipal bonds,appointed and paid by the City.
"Optional Tender Date" means the date designated by an Owner to the Tender Agent on which such
Owner will tender his Bond in accordance with the Indenture.
"Outstanding," when used as of any particular time with reference to the Bonds, means (subject to the
provisions of the Indenture)all Bonds theretofore issued by the Authority except:
(1) Bonds theretofore canceled by the Trustee or surrendered to the Trustee for cancellation;
(2) Bonds for the payment or redemption of which moneys or securities in the necessary
amount(as provided in the Indenture) shall have been theretofore deposited in trust(whether upon or prior to the
maturity or the redemption date of such Bonds), provided that, if such Bonds are to be redeemed prior to the
maturity thereof,notice of such redemption shall have been given as provided in the Indenture;
(3) Untendered Bonds;and
(4) Bonds in lieu of, or in substitution for, other Bonds which shall have been authorized,
executed,issued and delivered by the Authority pursuant to the Indenture.
"Owner" or `Bondowner" means the Person or Persons whose name appears on the registration books
maintained by the Trustee as the registered owner of a Bond or Bonds.
"Participant" means those broker-dealers, banks and other financial institutions from time to time for
which the Depository holds Bonds as a securities depository.
"Permitted Encumbrances" means as of any particular time: (i)liens for general ad valorem taxes and
assessments, if any, not then delinquent, or which the City may, pursuant to the Lease, permit to remain unpaid;
(ii)the Lease and the Site Lease; (iii)the Assignment Agreement; (iv)any right or claim of any mechanic, laborer,
materialman, supplier or vendor filed or perfected in the manner prescribed by law after the date of the Lease;
(v)easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or
restrictions which exist of record as of the date of initial issuance of the Bonds and which an independent third party
certifies in writing will not materially impair the use of the Leased Property by the City; and(vi)easements,rights
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of way, mineral rights, drilling rights and other rights,reservations, covenants, conditions or restrictions established
following the date of recordation of the Lease and to which the Authority, the City, the Credit Entity and the
Confirming Bank consent in writing.
"Person" means an individual, corporation, firm, association, partnership, trust, or other legal entity or
group of entities,including a governmental entity or any agency or political subdivision thereof.
"Prepayment"means any payment made by the City pursuant to the Lease as a prepayment of Base Rental
payments.
"Principal Office"means the principal corporate trust office of the Trustee in Los Angeles, California,or
the principal office of the Tender Agent in Los Angeles, California, or the principal corporate trust office of any
successor Trustee or Tender Agent.
"Project"means the community/senior center project to be acquired and constructed on the Site.
"Rating Category" means one of the general rating categories of S&P or Moody's, as the case may be,
without regard to any refinement or graduation of such rating category by numerical modifier or otherwise.
"Record Date" means, during the period during which the Bonds accrue interest at the Fixed Rate, the
close of business on the fifteenth day of the month immediately preceding each Bond Payment Date,and,during the
Weekly Rate Period or a Daily Rate Period, the close of business on the Business Day immediately preceding the
Bond Payment Date.
"Redemption Fund"means the fund so designated and established pursuant to the Indenture.
"Reimbursement Agreement"means the agreement or agreements entered into between the City and the
Credit Entity setting forth the terms and conditions relating to the issuance of the Credit Facility and the City's
obligations to repay the Credit Entity in the event moneys are drawn under the Credit Facility.
"Remarketing Agent"means US Bancorp Piper Jaffray,San Francisco,California,or any successor entity
or entities appointed by the Authority to perform the duties of the Remarketing Agent under the Indenture.
"Remarketing Agreement" means the Remarketing Agreement, dated as of December 1, 2002, between
the Authority and the Remarketing Agent, and any other agreement relating to the services of the Remarketing
Agent in effect at any time.
"Remarketing Proceeds Account" means the account by that name in the Tender Fund established in
accordance with the Indenture.
"Removal" means the release of all or a portion of the Leased Property from the leasehold thereof as
provided in the Lease.
"Revenues" means all amounts received by the Authority as lessor under the Lease, including, without
limiting the generality of the foregoing, scheduled Base Rental payments, prepayments, and insurance and
condemnation proceeds,and all interest,profits or other income derived from the investment of amounts in any fund
or account established under the Indenture.
"Securities Depositories"means The Depository Trust Company,711 Stewart Avenue,Garden City,New
York 11530, Fax-(516) 227-4039 or 4190,,and, in accordance with then current guidelines of the Securities and
Exchange Commission, such other addresses and/or such other securities depositories as the Authority may
designate in a Written Certificate of the Authority delivered to the Trustee.
"Serial Bonds" means the Bonds falling due by their terms in specified years, for which no mandatory
sinking account payments are provided.
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"Site"means that certain real property described in Exhibit A to the Site Lease.
"Special Record Date"means the date established by the Trustee pursuant to the Indenture.
"Substituted Property"shall have the meaning given to such term in the Lease.
"Substitution"means the release of all or a portion of the Leased Property from the leasehold thereof,and
the lease of substituted real property and improvements thereunder as provided in the Lease.
"Supplemental Indenture" means any indenture duly authorized and entered into between the Authority
and the Trustee, supplementing, modifying or amending the Indenture; but only if and to the extent that such
supplemental indenture is specifically authorized thereunder.
"S&P"means Standard&Poor's or any successor corporation thereto.
"State"means the State of California.
"Tax Certificate"means the Tax Certificate delivered by the Authority and the City at the time of issuance
and delivery of the Bonds,as the same may be amended or supplemented in accordance with its terms.
"Tender Agent" means Union Bank of California, N.A., or any successor entity appointed by the
Authority to perform the duties of the Tender Agent under the Indenture,which duties shall include those of acting
as a co-transfer agent,co-paying agent for payment of principal and co-registrar thereunder.
"Tender Date"means a Mandatory Tender Date or an Optional Tender Date.
"Tender Fund" means the fund by that name established and held by the Tender Agent pursuant to the
Indenture.
"Term Bonds"means the Bonds payable at or before their specified maturity date or dates from mandatory
sinking account payments established for that purpose and calculated to retire such Bonds on or before their
specified maturity date or dates.
"Trustee" means Union Bank of California, N.A., or any successor trustee appointed pursuant to the
provisions of the Indenture.
"Untendered Bonds" means Bonds for which a Tender Date has become effective and for which the
purchase price thereof has been irrevocably deposited in trust with the Tender Agent but for which the Tender Agent
has not yet received the Bonds.
"Weekly Rate"means the interest rate with respect to the Weekly Rate Period.
"Weekly Rate Period"means the period during which Bonds bear interest at a Weekly Rate.
THE INDENTURE
Transfer and Exchange of Bonds
The Bonds may be transferred or exchanged at the Trust Office of the Trustee or the Tender Agent.
Neither the Trustee nor the Tender Agent will be required to make any such exchange or transfer of Bonds during
the period five(5)days prior to any date established by the Trustee for selection of Bonds for redemption or to make
any such exchange or transfer after the applicable Bond has been selected for redemption.
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Bonds Mutilated,Lost,Destroyed or Stolen
If any Bond shall become mutilated,the Authority,at the expense of the Owner of said Bond,shall execute,
and the Trustee or the Tender Agent shall authenticate and deliver,a new Bond of like tenor and principal amount in
exchange and substitution for the Bond so mutilated,but only upon surrender to the Trustee or the Tender Agent of
the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee or the Tender Agent shall be canceled
by it and delivered to,or upon the order of,the Authority. If any Bond shall be lost,destroyed or stolen,evidence of
such destruction or theft may be submitted to the Authority,the Trustee or the Tender Agent and, if such evidence
be satisfactory to them and indemnity satisfactory to them shall be given, the Authority, at the expense of the
Owner, shall execute, and the Trustee or the Tender Agent shall thereupon authenticate and deliver, a new Bond of
like tenor and maturity in lieu of and in substitution for the Bonds so lost, destroyed or stolen(or if any such Bond
shall have matured, or shall be about to mature or has been selected for redemption, instead of issuing a substitute
Bond,the Trustee may pay the same without surrender thereof). The Authority may require payment of a sum not
exceeding the actual cost of preparing each new Bond issued and of the expenses that may be incurred by the
Authority or the Trustee. Any Bond issued under these provisions in lieu of any Bond alleged to be lost, destroyed
or stolen shall constitute an original additional contractual obligation on the part of the Authority whether or not the
Bond so alleged to be lost, destroyed or stolen is at any time enforceable by anyone, and shall be entitled to the
benefits of the Indenture with all other Bonds secured by the Indenture.
Deposit of Revenues;Application of Moneys
Deposit of Revenues. There shall be deposited in the Lease Payment Account of the Debt Service Fund all
Base Rental(other than Prepayments,which shall be deposited in the Lease Prepayment Account of the Redemption
Fund pursuant to the Indenture)received by the Trustee. There shall be deposited in the Credit Facility Account of
the Debt Service Fund all amounts drawn under the Credit Facility or the Confirming Letter of Credit, except for
amounts drawn thereunder with respect to Prepayments which shall be deposited in the Credit Facility Prepayment
Account of the Redemption Fund and amounts drawn thereunder with respect to the payment of the purchase price
of tendered Bonds.
Application of Moneys. (a)Except as provided in subsection(b)hereof,all amounts in the Lease Payment
Account of the Debt Service Fund shall be used and withdrawn by the Trustee solely for the purpose of paying the
principal of and interest on the Bonds as the same shall become due and payable,in accordance with the Indenture.
(b) During the term of any Credit Facility or Confirming Letter of Credit, on each Bond
Payment Date, following a draw on the Credit Facility or the Confirming Letter of Credit, as applicable, and receipt
of the proceeds of such draw, the Trustee shall withdraw the amounts, if any, on deposit in the Lease Payment
Account and, to the extent moneys are owed to the Credit Entity under the Reimbursement Agreement or the
Confirming Bank under the Confirmation Agreement, pay such amounts to the Credit Entity or the Confirming
Bank, as applicable; provided, however, the Trustee shall not be required to pay amounts to the Credit Entity in
excess of the amount drawn on the Credit Facility unless the Credit Entity has certified to the Trustee and to the
City,in writing,the additional amounts due and owing and specifying the section in the Reimbursement Agreement
pursuant to which such additional amounts are due and such additional amounts are on deposit in the Lease Payment
Account. To the extent the Trustee receives Base Rental payments sufficient to reimburse the Credit Entity or the
Confirming Bank for a draw under the Credit Facility or the Confirming Letter of Credit, as applicable, an amount
equal to such Base Rental payments received shall be released from amounts initially deposited in the Lease
Payment:Account on the Closing Date, representing capitalized interest on the Bonds, and transferred to the
Construction Fund.
(c) Sources of funds for the payment of the Bonds shall be applied in the following order of
priority to pay principal and interest with respect to the Bonds: (i)moneys deposited in the Credit Facility Account
or the Credit Facility Prepayment Account, as appropriate; (ii) draws under the Confirming Letter of Credit; (iii)
other Available Moneys furnished to the Trustee; and(iv) any other money made available to the Trustee for such
purpose.
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Payment of Bonds registered to or on behalf of the Credit Entity shall be made from amounts on deposit in
the Lease Payment Account of the Debt Service Fund and the Lease Prepayment Account of the Redemption Fund,
as applicable.
Investment of Moneys in Funds and Accounts
All moneys in any of the funds and accounts established pursuant to the Indenture (other than the Credit
Facility Account,Credit Facility Prepayment Account and the Tender Fund,which moneys shall be held uninvested)
shall be invested by the Trustee solely in Authorized Investments. Upon written request of an Authorized
Representative of the Authority, the Trustee shall invest all moneys as directed by such Authority representative,
provided such moneys are invested solely in Authorized Investments;provided,however,that the Trustee shall have
received at least two (2)Business Days prior to the date of any such proposed investment or reinvestment, written
directions of the Authority specifying the Authority's request for investment or reinvestment. In the absence of
request from the Authority, the Trustee shall invest any such moneys solely in the investments described in
subparagraph(9) of the definition of°`Authorized Investments." Authorized Investments may be purchased at such
prices as the Authority may in its discretion determine. All Authorized Investments will be acquired subject to the
limitations set forth in the Indenture,the limitations as to maturities thereinafter set forth in the Indenture and such
additional limitations or requirements consistent with the foregoing as may be established by Request of the
Authority and are consistent with the fiduciary duties of the Trustee. Moneys in the funds and accounts shall be
invested in Authorized Investments maturing not later than the date on which it is estimated that such moneys will
be required by the Trustee or the Authority. Authorized Investments purchased under a repurchase agreement may
be deemed to mature on the date or dates on which the Trustee may deliver such Authorized Investments for
repurchase under such agreement. Authorized Investments acquired as an investment of moneys in any fund or
account established under the Indenture shall be credited to such fund or account. Except as otherwise provided in
the Indenture, all interest,profits and other income received from the investment of moneys in any fund or account
shall be deposited therein. For the purpose of determining the amount in any fund, all Authorized Investments
credited to such fund shall be valued at the lesser of (i)cost (exclusive of brokerage commissions or accrued
interest,if any);(ii)the par amount thereof;or(iii)the market value thereof.
Except for moneys held by the Trustee in the Credit Facility Account, the Credit Facility Prepayment
Account,the Tender Fund and the Remarketing Proceeds Account therein,the Trustee may commingle moneys on
deposit in any of the funds or accounts established pursuant to the Indenture and held by the Trustee into a separate
fund or funds for investment purposes only, provided that all funds or accounts held by the Trustee under the
Indenture will be accounted for separately as required by the Indenture. The Trustee or an affiliate may act as
principal or agent in the making or disposing of any investment and shall be entitled to its customary fees therefor.
The Trustee may sell at the best price obtainable, or present for redemption, any Authorized Investments so
purchased whenever it shall be necessary to provide moneys to meet any required payment,transfer, withdrawal or
disbursement from the fund or account to which such Authorized Investment is credited, and, subject to the
provisions of the Indenture, the Trustee shall not be liable or responsible for any loss on any investment made
pursuant to the Indenture or resulting from any such sale which the Trustee reasonably makes in good faith. Any
Authorized Investments that are registrable securities shall be registered in the name of the Trustee.
The Trustee shall, using its best efforts, sell or present for redemption, any Authorized Investment so
purchased by the Trustee whenever it shall be necessary in order to provide moneys to meet any required payment,
transfer, withdrawal or disbursement from the fund to which such Authorized Investment is credited. The Trustee
shall conclusively be deemed to have used its best efforts if the Trustee obtains three bids and sells the Authorized
Investments to the highest bidder. The Trustee will furnish to the Authority,not less than monthly, and to the Credit
Entity upon request, an accounting of all investments made by the Trustee. The Trustee will keep accurate records
of all funds administered by it and all Bonds paid and discharged. Investment earnings in the Debt Service Fund
will first be applied to the payment of Additional Rental. If no Additional Rental is owing, investment earnings
within the Debt Service Fund will be transferred to the City on July 2 of each year while the Bonds remain
Outstanding. Unless otherwise directed in the Indenture, investment earnings in all other funds and accounts
established under the Indenture will remain in such funds and accounts.
For purposes of acquiring any investments under the Indenture,the Trustee may commingle funds held by
it under the Indenture. The Trustee may act as principal or agent in the making or disposing of any investment and
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may impose its customary charges therefor. The Trustee will incur no liability for losses arising from any
investments made pursuant to this Section.
Covenants of the Authority
Punctual Payment. The Authority covenants and agrees that it will duly and punctually pay or cause to be
paid the principal of and interest on each of the Bonds together with the premium thereon, if any,on the date,at the
place and in the manner provided in said Bonds, solely from the Revenues and other funds as provided in the
Indenture, and thereafter to amounts owing to the Credit Entity under the Reimbursement Agreement and the
Confirming Bank under the Confirmation Agreement.
Extension of Payment of Bonds. The Authority shall not directly or indirectly extend or assent to the
extension of the maturity of any of the Bonds or to a change in the amount or time of any mandatory sinking account
payment or the time of payment of any claims for interest, whether by the purchase or funding of such Bonds or
claims of interest or by any other arrangement,and in case the maturity of any of the Bonds or the time of payment
of, or claims for, interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any
default under the Indenture, to the benefits of the Indenture, except subject to the prior payment in full of the
principal of all of the Bonds then Outstanding and of all claims for interest thereon which shall not have been so
extended. Nothing in this section shall be deemed to limit the right of the Authority to issue Bonds for the purpose
of refunding any Outstanding Bonds and such issuance shall not be deemed to constitute an extension of maturity of
Bonds.
Against Encumbrances. The Authority will not issue any other obligations payable as to either principal
or interest from the Revenues which have,or purport to have any lien upon the Revenues superior to or on a parity
with the lien of the Bonds.
Against Additional Indebtedness. The Authority covenants and agrees that it will not issue any other
bonds,notes or other obligations,enter into any agreement or otherwise incur any indebtedness,which is in any case
payable,as to either principal or interest,from all or any part of Revenues.
Power to Issue Bonds and Make Pledge and Assignment. The Authority is duly authorized to issue the
Bonds and to enter into the Indenture and to pledge and assign the Revenues and other assets purported to be
pledged and assigned, respectively, under the Indenture in the manner and to the extent provided in the Indenture.
The Bonds and the provisions of the Indenture are and will be the legal,valid and binding limited obligations of the
Authority in accordance with their terms, and the Authority and the Trustee shall at all times,to the extent permitted
by law, defend,preserve and protect said pledge and assignment of Revenues and other assets and all the rights of
the Bondowners under the Indenture against all claims and demands of all persons whomsoever.
The Authority shall preserve and protect the security of the Bonds and the rights of the Owners,the Credit
Entity and the Confirming Bank and defend their rights against all claims and demands of all persons. Until such
time as an amount has been set aside sufficient to pay at maturity, or to call and redeem prior to maturity, all
Outstanding Bonds plus unpaid interest thereon to maturity,and thereafter to pay amounts owing to the Credit Entity
under the Reimbursement Agreement and all amounts owing to the Confirming Bank under the Confirmation
Agreement, the Authority will (through its proper members, officers, agents or employees) faithfully perform and
abide by all the covenants,undertakings and provisions contained in the Indenture or in any Bond issued thereunder
for the benefit of the Owners,the Credit Entity and the Confirming Bank.
Accounting Records and Financial Statements. The Authority covenants and agrees that it will at all
times keep, or cause to be kept, proper and current books and accounts (separate from all other records and
accounts) in which complete and accurate entries shall be made of all transactions relating to the Revenues and of
the funds and accounts provided for in the Indenture. Such books of record and accounts shall at all times during
business hours be subject to the inspection of the Trustee,the Credit Entity, the Confirming Bank or the Owners of
not less than ten percent (10%) of the aggregate principal amount of the Bonds then Outstanding or their
representative authorized in writing. The parties hereto acknowledge that any such books,records or accounts will
be maintained by the Trustee so long as all Base Rental Payments are made directly from the City to the Trustee and
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that the Authority shall not be responsible for keeping such books,records or accounts unless Base Rental Payments
are received by it.
Tax Covenants. The Authority covenants that it will not use,and shall not permit the use of,and shall not
omit to use Gross Proceeds or any other amounts (or any property the acquisition, construction or improvement of
which is to be financed directly or indirectly with Gross Proceeds)in a manner that if made or omitted,respectively,
could cause the interest on any Bond to fail to be excluded pursuant to Section 103(a) of the Code from the gross
income of the owner thereof for federal income tax purposes. Without limiting the generality of the foregoing,
unless and until the Trustee receives a written opinion of Bond Counsel to the effect that failure to comply with such
covenant will not adversely affect such exclusion of the interest on any Bond from the gross income of the owner
thereof for federal income tax purposes, the Authority shall comply with each of the specific covenants in the
Indenture.
Further Assurances. The Authority will make, execute and deliver any and all such further indentures,
instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the
performance of the Indenture, and for the better assuring and confirming unto the Owners of the Bonds and the
Credit Entity and the Confirming Bank of the rights and benefits provided in the Indenture.
Modification or Amendment of Indenture and Lease
After first requesting and obtaining the prior written approval of the Credit Entity, the Indenture and the
rights and obligations of the Owners of the Bonds and the Lease and the rights and obligations of the parties thereto,
may be modified or amended at any time by a supplement which shall become effective when the written consents
of the Owners of at least a majority in aggregate principal amount of the Bonds then Outstanding, exclusive of
Bonds disqualified as provided in the Indenture,shall have been filed with the Trustee and Moody's if the Bonds are
rated by Moody's or S&P if the bonds are rated by S&P. No such modification or amendment shall (1)extend or
have the effect of extending the fixed maturity of any Bond or reducing the interest rate with respect thereto or
extending the time of payment of interest, or reducing the amount of principal thereof or reducing any premium
payable upon the redemption thereof,without the express consent of the Owner of such Bond,or(2)reduce or have
the effect of reducing the percentage of Bonds required for the affirmative vote or written consent to an amendment
or modification of the Indenture or the Lease,or(3)modify any of the rights or obligations of the Trustee without its
written assent thereto.
Events of Default and Remedies
Events of Default Defined. The following events are Events of Default under the Indenture:
(a) Default by the Authority in the due and punctual payment of the principal of any Bond
when and as the same shall become due and payable,whether at maturity as therein expressed,or by proceedings for
redemption,by declaration or otherwise;
(b) Default by the Authority in the due and punctual payment of any installment of interest
on any Bond when and as such interest installment shall become due and payable.
(c) Default by the Authority to observe and perform any of the covenants, agreements or
conditions on its part in the Indenture or in the Bonds if such default shall have continued for a period of 60 days
after written notice,specifying such default and requiring that it be remedied,has been given to the Authority by the
Trustee, or to the Authority and the Trustee by the Credit Entity or the Owners of not less than 25% in aggregate
principal amount of the Outstanding Bonds; provided, however, that such default shall not constitute an Event of
Default if the Authority shall commence to cure such default within said sixty-day period and thereafter diligently
and in good faith proceed to cure such default within a reasonable period of time.
Remedies Upon Event of Default. Subject to the rights of the Credit Entity and provided that the Credit
Entity is not in default under the Credit Facility and is in compliance with all terms of the Credit Facility,upon the
occurrence and continuance of any Event of Default specified in the Indenture,the Trustee,upon the direction of the
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Credit Entity, shall proceed, or upon the occurrence and continuance of any Event of Default specified in the
Indenture, the Trustee may proceed (and upon written request of the Credit Entity or upon written request of the
Owners of not less than a majority in aggregate principal amount of the Bonds then Outstanding and the consent of
the Credit Entity so long as the Credit Facility remains in effect and the Credit Entity is not in default thereunder and
receipt of indemnity satisfactory to it, shall proceed),to exercise the remedies set forth in the Lease or available to
the Trustee; provided, however, that there shall be no right to accelerate maturities of the Bonds or otherwise to
declare any Base Rental not then in default to'be immediately due and payable. Upon the occurrence and
continuance of any Event of Default, the Trustee shall exercise the rights and remedies invested in it by the
Indenture with the same degree of care and skill as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
Application of Revenues and Other Funds After Default. If an Event of Default shall occur and be
continuing, all Revenues and any other funds (other than moneys drawn under any Credit Facility or Confirming
Letter of Credit which shall be deposited into the Credit Facility Account and moneys in the Remarketing Proceeds
Account, such moneys in both such accounts to be applied only to the payment of principal and interest on the
Bonds)then held or thereafter received by the Trustee under any of the provisions of the Indenture shall be applied
by the Trustee as follows and in the following order of priority:
(1) To the payment of any expenses necessary in the opinion of the Trustee to protect the
interests of the Owners of the Bonds and payment of all reasonable charges and expenses of the Trustee incurred in
and about the performance of its powers and duties under the Indenture; and
(2) To the payment of the principal of and interest then due on the Bonds(upon presentation
of the Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully
paid),subject to the provisions of the Indenture,as follows:
First: To the payment to the Persons entitled thereto, including the Credit Entity or the
Confirming Bank, of all interest then due and payable, and, if the amount available shall not be sufficient to pay in
full all such interest, then to the payment thereof ratably, according to the amounts due thereon, to the Persons
entitled thereto,without any discrimination or preference;
Second: To the payment to the Persons entitled thereto, including the Credit Entity or the
Confirming Bank, of the unpaid principal of any Bonds which shall have become due and payable, whether at
maturity or by call for redemption, in the order of their due dates, with interest on the overdue principal at the rate
borne by the respective Bonds from the respective dates upon which such Bonds became due and payable,and,if the
amount available shall not be sufficient to pay in full all the principal of the Bonds due on any date, together with
such interest,then to the payment first of such interest,ratably,according to the amount of interest due on such date,
and then to the payment of such principal, ratably, according to the amounts of principal due on such date to the
Persons entitled thereto,without any discrimination or preference;and
Third: To the payment of the interest on and the principal of the Bonds, the purchase and
retirement of the Bonds and to the redemption of the Bonds,all in accordance with the provisions of the Indenture.
(3) To the payment of any obligations due and owing to the Credit Entity under the
Reimbursement Agreement or to the Confirming Bank under the Confirmation Agreement.
Limitation on Bondowners'Right to Sue. No Owner of any Bond shall have the right to institute any suit,
action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under the
Indenture or any applicable law with respect to such Bond,unless(1)such Owner previously shall have given to the
Trustee and the Credit Entity written notice of the occurrence of an Event of Default;(2)the Owners of not less than
25% in aggregate principal amount of all the Bonds then Outstanding shall have made written request upon the
Trustee to exercise the powers thereinbefore granted or to institute such action,suit or proceeding in its own name;
(3)such Owner or Owners shall have tendered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request; and (4)the Trustee shall have refused or omitted to
comply with such request for a period of 60 days after such written request shall have been received by, and said
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tender of indemnity shall have been made to, the Trustee, and in every case, the Credit Entity shall have approved
such request so long as the Credit Facility is in effect and the Credit Entity is not in default thereunder.
Such notification,request,tender of indemnity and refusal or omission are hereby declared, in every case,
to be conditions precedent to the exercise by any Owner of Bonds of any remedy under the Indenture; it being
understood and intended that no one or more Owners of Bonds shall have any right in any manner whatever by his
or their action to affect,disturb or prejudice the security of the Indenture or the rights of any other Owners of Bonds,
or to enforce any right under the Indenture or applicable law with respect to the Bonds, except in the manner
provided in the Indenture, and that all proceedings at law or in equity to enforce any such right shall be instituted,
had and maintained in the manner provided in the Indenture and for the benefit and protection of all Owners of the
Outstanding Bonds,subject to the provisions of the Indenture.
Discharge of the Indenture
The Bonds may be paid, in whole or in part, by the Authority in any of the following ways, provided that
the Authority also pays or causes to be paid any other sums payable hereunder by the Authority
(a) by well and truly paying or causing to be paid the principal of and interest and
redemption premiums,if any,on such Bond,as and when the same become due and payable;
(b) if prior to maturity and having given notice of redemption by irrevocably depositing with
the Trustee,in trust,at or before maturity,an amount of cash which,together with the amounts then on deposit in the
Lease Payment Account and available for such purpose, is fully sufficient to pay in Available Moneys or from the
proceeds of a draw under the Credit Facility all principal of and interest and redemption premiums, if any, on such
Bonds;or
(c) by irrevocably depositing with the Trustee in trust, noncallable Authorized Investments
described in paragraph (1) or (2) of the definition thereof purchased with Available Moneys, or draws under the
Credit Facility together with cash, if required, in such amount as will in the opinion of an independent certified
public accountant, together with interest to accrue thereon and moneys then on deposit in the Lease Payment
Account and available for such purpose,together with the interest to accrue thereon,be fully sufficient to pay and
discharge in Available Moneys or draws under the Credit Facility such Bond (including all principal and interest
represented thereby and redemption premiums,if any).
If all Outstanding Bonds shall be discharged and paid in one or more of the preceding ways and all
Additional Rental shall have been paid or arrangements satisfactory to the Trustee shall have been made for the
payment of such Additional Rental, then, notwithstanding that any Bonds shall not have been surrendered for
payment,all obligations of the Authority,the Trustee and the City with respect to all Outstanding Bonds shall cease
and terminate, except only the covenants of the Authority under the Indenture to comply with the Code and the
obligation of the Trustee to pay or cause to be paid, from Base Rental paid by or on behalf of the City from funds
deposited pursuant to paragraphs(b)and(c)of this Section,to the Owners of the Bonds not so surrendered and paid
all sums due with respect thereto,and in the event of deposits pursuant to paragraphs(b) and(c)of this Section,the
Bonds shall continue to represent direct and proportionate interests of the Owners thereof in Base Rental under the
Lease,provided,however,during the Weekly Rate Period or Daily Rate Period no such defeasance shall be deemed
to have occurred unless the Trustee shall receive written evidence from each rating agency then rating the Bonds
that such defeasance will not cause a reduction or withdrawal of any then existing rating on the Bonds.
Any funds held by the Trustee, at the time of the defeasance of all Outstanding Bonds, which are not
required for payment as required therein,shall be paid over to the Credit Entity or the Confirming Bank to the extent
of any amounts owed under the Reimbursement Agreement or the Confirmation Agreement, as applicable, then to
the Trustee to pay any amounts owed to the Trustee under the Indenture, and the remainder, if any, shall be paid
over to the City.
During the term of any Credit Facility,prior to or at the time of a deposit pursuant to paragraph(b)or(c)of
this Section, there shall be delivered to the Trustee an opinion of nationally recognized bankruptcy counsel to the
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effect that payments to the Owners of Bonds defeased from such Available Moneys or draws under the Credit
Facility on deposit with the Trustee will not constitute avoidable preferences under Title 11 and Title 9 of the United
States Bankruptcy Code upon the occurrence of an Event of Bankruptcy.
Removal of Trustee
The Authority, with the consent of the City, and subject to the prior written consent of the Credit Entity,
may remove the Trustee at any time upon thirty (30) days written notice to the Trustee unless an Event of Default
shall have occurred and then be continuing, and shall remove the Trustee if at any time requested to do so by an
instrument or concurrent instruments in writing signed by the Owners of not less than a majority in aggregate
principal amount of the Bonds then Outstanding(or their attorneys duly authorized in writing)or if at any time,to
the knowledge of the Authority, the Trustee shall cease to be eligible in accordance with the Indenture or shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or its property
shall be appointed, or any public officer shall take control or charge of the Trustee or its property or affairs for the
purpose of rehabilitation, conservation or liquidation; in each case by giving written notice of such removal to the
Trustee, and thereupon shall appoint a successor Trustee by an instrument in writing.
THE LEASE
Term
The Authority leases to the City and the City rents and hires from the Authority, on the terms and
conditions set forth in the Lease,the Leased Property.
The term of the Lease shall commence as of December 1, 2002, or the date on which the Lease or a
memorandum thereof is recorded, whichever is later, and shall end on July 1, 2033, unless such term is sooner
terminated or is extended as provided in the Lease. If on July 1, 2033,the Indenture shall not be discharged by its
terms or if the rental payable shall have been abated at any time and for any reason,then the term of the Lease shall
be extended until ten (10) days after all Bonds shall be fully paid. If prior to July 1, 2033, the Indenture shall be
discharged by its terms,the term of the Lease shall thereupon end.
The Lease will terminate upon the earlier of either of the following events: (a)a default by the City and the
Authority's election to terminate the Lease;or(b)the payment by the City of all Base Rental payments,Additional
Rental and all other amounts authorized or required to be paid by it under the Lease.
Rental
Subject to the provisions of the Lease, the City agrees to pay to the Authority, its successors or assigns,
without deduction or offset of any kind, as rental for the use and occupancy of the Leased Property, the following
amounts at the following times:
(a) Base Rental. The City shall pay to the Authority as Base Rental under the Lease,rental payments
with interest and principal components in accordance with the Base Rental Payment Schedule attached to the Lease
as Exhibit B. Base Rental Payments shall be made by the City on the twenty-fifth day of the month immediately
preceding each Bond Payment Date(the"Lease Payment Date"), which shall be sufficient in both time and amount
to pay when due the principal of the Bonds, as set forth in the Lease, as such may be amended and supplemented,
together with interest on the Bonds to be calculated by the Trustee as provided in the Indenture. The interest
components of the Base Rental payable by the City shall be paid by the City as and shall constitute interest paid on
the principal components of the Base Rental payable by the City under the Lease.
Payment of Base Rental and Additional Rental for each rental payment period during the term shall
constitute the total rental for such rental payment period,and shall be paid by the City in each rental payment period
for and in consideration of the right to the use and occupancy, and the continued quiet enjoyment, of the Leased
Property during the rental payment period for which such rental is paid.
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The City shall provide written notice to the Trustee, the Credit Entity, the Confirming Bank and the
Authority at least five(5)Business Days prior to any Lease Payment Date upon which the City expects to be unable
to appropriate and pay the Base Rental payment due on such Lease Payment Date, informing the Trustee and the
Authority of such inability to appropriate and pay. If the term of the Lease shall have been extended, Base Rental
payments shall continue to be due on Lease Payment Dates,and payable as described in the Lease,continuing to and
including the date of termination of the Lease. Upon such extension of the Lease, the principal and interest
components of the Base Rental shall be established so that the principal components will in the aggregate be
sufficient to pay all unpaid principal components with interest components sufficient to pay all unpaid interest
components plus interest on the extended principal components at a rate equal to the rate of interest on the principal
component of the Base Rental payable on July 1 of the year after the date of such extension.
The parties to the Lease have agreed and determined that the Base Rental payments shown in the Base
Rental Payment Schedule set forth in Exhibit B thereto represents the fair market value of the Leased Property. In
making such determination, consideration has been given to the costs of the Leased Property,the fair market value
thereof, the other obligations of the parties thereunder, the uses and purposes which may be served by the Leased
Property and the benefits therefrom which will accrue to the City, its residents and the general public. In the event
the City fails to complete the Project or there is a delay in constructing the Project such that the Base Rental
payments exceed the fair market value of the Leased Property, the City covenants to use its best effort to acquire
such additional real property as may be necessary and,by executing appropriate amendments,to lease such property
to the Authority, and the Authority covenants to lease such property, as a part of the Leased Property, back to the
City'.
Each installment of Base Rental and Additional Rental payable under the Lease shall be paid in lawful
money of the United States of America to or upon the order of the Authority at the office of the Trustee. To the
extent permitted by law, any such installment of Base Rental or Additional Rental accruing thereunder which shall
not be paid when due shall bear interest at the rate equal to the interest rate applicable to the delinquent installment
of Base Rental or, in the case of Additional Rental (other than amounts owing to the Credit Entity under the
Reimbursement Agreement and to the Confirming Bank under the Confirmation Agreement),the interest rate on the
Bonds on the date the Additional Rental was not paid and in the case of amounts owing to the Credit Entity under
the Reimbursement Agreement or to the Confirming Bank under the Confirmation Agreement, at the rate of interest
set forth in the Reimbursement Agreement or the Confirmation Agreement, as applicable. All such delinquent
installments of Base Rental and the interest thereon shall be deposited in the Lease Payment Account of the Debt
Service Fund. All such delinquent installments of Additional Rental and interest thereon shall be paid to the order
of the Authority,the Trustee,the Credit Entity or the Confirming Bank,as applicable. Notwithstanding any dispute
between the Authority, or the Trustee and the City, the City shall make all rental payments when due under the
Lease without deduction or offset of any kind and shall not withhold any rental payments pending the final
resolution of such dispute.
(b) Additional Rent. The City shall pay to the Authority as Additional Rental under the Lease, such
amounts in each year as shall be required by the Authority for the payment in full of payments to the Credit Entity
required by the Reimbursement Agreement and payments to the Confirming Bank required by the Confirmation
Agreement(other than reimbursement for draws on the Credit Facility or Confirming Letter of Credit to pay Base
Rental or constituting Tender Advances (as defined in the Reimbursement Agreement)), all costs and expenses
incurred by the Authority, and the Trustee in connection with the execution,performance or enforcement hereof or
any assignment hereof,of the Indenture and of the lease of the Leased Property to the City,including but not limited
to payment of all fees, costs and expenses and all administrative costs of the Authority, and the Trustee in
connection with the Leased Property, the Lease, and the Indenture and all taxes, assessments and governmental
charges of any nature whatsoever levied or imposed by any governmental authority against the Authority, the
Leased Property, or the rentals and the other payments required to be made by the City. Such Additional Rental
shall be billed to the City by the Authority,or the Trustee from time to time,together with a statement certifying that
the amount so billed has been paid by the Authority,or the Trustee for one or more of the items above described, or
that such amount is then payable by the Authority,or the Trustee for one or more of such items, and all amounts so
billed shall be due and payable by the City within thirty(30)days after receipt of each bill therefor by the City.
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Annual Budgets; Reporting Requirements
The City covenants to take action as may be necessary to include all such rental payments due under the
Lease in its annual budgets and to make the necessary annual appropriations for all such rental payments. For this
budgetary purpose,and while the Bonds bear interest at the Weekly Rate or the Daily Rate,the City shall assume an
interest component for any Fiscal Year equal to the average interest rate borne by the Bonds during the 12 months
preceding the time of consideration, plus 250 basis points. The City shall furnish to the Trustee at least 15 days
before final adoption of the proposed budget for each Fiscal Year a certificate stating that it has included.in the
proposed budget all Base Rental and Additional Rental due under the Lease in the Fiscal Year covered by such
proposed budget and following adoption of the final budget a certificate stating that the Base Rental and Additional
Rental was included in the final budget as adopted. The City shall file with the Trustee the certificate regarding
adoption of the final budget by July 1 of each year unless the City is permitted by applicable law to adopt its final
budget after such date, and has in fact not adopted its final budget by July 1, in which event, the City will file with
the Trustee by July 1 a certificate stating the specified later date by which the City may adopt its final budget under
applicable law and will file with the Trustee by such specified later date such certificate following such adoption.
To the extent that the amount of any such payment becomes known after the adoption of the annual budget,
such amounts shall be included and maintained in such budget as amended. The City covenants to take such action
as is necessary to include such amounts in a supplemental budget of the City. The covenants on the part of the City
contained in the Lease shall be deemed to be and shall be construed to be ministerial duties imposed by law and it
shall be the ministerial duty of each and every public official of the City to take such action and do such things as
are required by law in the performance of the official duty of such officials to enable the City to carry out and
perform the covenants and agreements in the Lease agreed to be carried out and performed by the City.
The obligation of the City to pay Base Rental and Additional Rental under the Lease shall constitute a
current expense of the City and shall not in any way be construed to be a debt of the City, or the State, or any
political subdivision thereof,in contravention of any applicable constitutional or statutory limitation or requirements
concerning the creation of indebtedness by the City,the State,or any political subdivision thereof,nor shall anything
contained in the Lease constitute a pledge of general revenues, funds or moneys of the City beyond the Fiscal Year
for which the City has appropriated funds to pay Base Rental and Additional Rental under the Lease or an obligation
of the City for which the City is obligated to levy or pledge any form of taxation or for which the City has levied or
pledged any form of taxation.
Maintenance,Utilities,Taxes and Assessments
The City agrees that, at all times during the term hereof, it will, at its own cost and expense, maintain,
preserve and keep the Leased Property and every portion thereof in good repair, working order and condition and
that it will from time to time make or cause to be made all necessary and proper repairs,replacements and renewals.
The Authority shall have no responsibility in any of these matters or for the making of additions or improvements to
the Leased Property.
The parties to the Lease contemplate that the Leased Property will be used for public purposes by the City
and,therefore,that the Leased Property will be exempt from all taxes presently assessed and levied with respect to
real and personal property, respectively. In the event that the use, possession or acquisition by the City or the
Authority of the Leased Property is found to be subject to taxation in any form, the City will pay during the term
hereof,as the same respectively become due,all taxes and governmental charges of any kind whatsoever that may at
any time be lawfully assessed or levied against or with respect to the Leased Property and any other property
acquired by the City in substitution for,as a renewal or replacement of, or a modification, improvement or addition
to the Leased Property, as well as all gas, water, steam, electricity,heat, power, air conditioning,telephone, utility
and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Leased Property;
provided, that with respect to any governmental charges or taxes that may lawfully be paid in installments over a
period of years, the City shall be obligated to pay only such installments as are accrued during such time as the
Lease is in effect.
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0
Changes to the Leased Property
With the prior written consent of the Credit Entity and the Confirming Bank,the City shall have the right
during the term of the Lease to remodel the Leased Property or to make additions,modifications and improvements
to the Leased Property. All such additions, modifications and improvements shall thereafter comprise part of the
Leased Property and be subject to the provisions of the Lease. Such additions, modifications and improvements
shall not in any way damage the Leased Property or cause it to be used for purposes other than those authorized
under the provisions of state and federal law; and the Leased Property, upon completion of any additions,
modifications and improvements made pursuant to the Lease, shall be of a value which is at least equal to the value
of the Leased Property immediately prior to the making of such additions,modifications and improvements.
Substitution of Property
The City may amend the Lease to substitute additional real property and/or improvements(the"Substituted
Property")for existing Leased Property, or to remove real property or improvements from the definition of Leased
Property,upon compliance with all of the conditions set forth below. After a Substitution or Removal,the part of
the Leased Property for which the Substitution or Removal has been effected shall be released from the leasehold
under the Lease and all right,title and interest in and to such Leased Property shall vest in the City. In connection
with such release of part of the Leased Property, the Authority shall execute such conveyances, deeds, and other
documents, and shall take or cause to be taken all actions that are necessary to provide that such released Leased
Property constitutes a valid legal parcel, the ownership of which is recordable in the real property records of the
County of Los Angeles for which a title insurance policy may be legally obtained, as may be necessary to effect
such vesting of record. No Substitution or Removal shall take place until the City delivers to the Authority, the
Credit Entity,the Confirming Bank and the Trustee the following:
(1) A Certificate of the City containing,in the event of a Removal,a description of all or part
of the Leased Property to be released and,in the event of a Substitution, a description of the Substituted Property to
be substituted in its place and a certification that the remaining useful life of the Substituted Property is not less than
remaining term of the Lease;
(2) A Certificate of the City stating that the fair rental value of the Leased Property after a
Substitution or Removal, in each year during the remaining term of the Lease is at least equal to the Base Rental
payments in each such year attributable to the Leased Property prior to said Substitution or Removal,as determined
by the City on the basis of an appraisal of the Leased Property performed by a qualified, independent consultant
after said Substitution or Removal;
(3) An Opinion of Counsel to the effect that the amendments contemplating Substitution or
Removal have been duly authorized, executed and delivered and constitute the valid and binding obligations of the
City and the Authority enforceable in accordance with their terms;
(4) In the event of a Substitution, a policy of title insurance in an amount equal to the same
proportion of the principal amount as the Base Rental payments for the Substituted Property bears to the total Base
Rental payments,insuring the City's leasehold interest in the Substituted Property(except any portion thereof which
is not real property) subject to Permitted Encumbrances, together with an endorsement thereto making said policy
payable to the Trustee for the benefit of the Owners of the Bonds,the Credit Entity and the Confirming Bank;
(5) In the event of a Substitution,an opinion of the City Attorney of the City to the effect that
the exceptions, if any, contained in the title insurance policy referred to in (4) above do not interfere with the
beneficial use and occupancy of the Substituted Property described in such policy by the City for the purposes of
leasing or using the Substituted Property;
(6) An Opinion of Counsel that the Substitution or Removal does not cause the interest on
the Bonds to fail to be excluded from the gross income of the Owners thereof for federal income tax purposes;
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(7) Evidence that the City has complied with the covenants contained in the Lease with
respect to the Substituted Property;
(8) Evidence that the City has delivered to any rating agency then rating the Bonds copies of
the certificates and appraisal described in clauses (1) and (2) above, and that the rating agency has indicated that
such substitution,in and of itself,will not result in a lower rating on the Bonds; and
(9) Written Consent of the Credit Entity and the Confirming Bank.
After a Substitution or Removal,the part of the Leased Property for which the Substitution or Removal has
been effected shall be released from the leasehold hereunder and all right, title and interest in and to such Leased
Property shall vest in the City. In connection with such release of part of the Leased Property, the Authority shall
execute such conveyances, deeds, and other documents, and shall take or cause to be taken all actions that are
necessary to provide that such released Leased Property constitutes a valid legal parcel, the ownership of which is
recordable in the real property records of the County of Los Angeles for which a title insurance policy may be
legally obtained,as may be necessary to effect such vesting of record.
Insurance
The City shall procure and maintain or cause to be secured and maintained throughout the term of the
Lease for the Leased Property,insurance against the following risks in the following respective amounts:
(1) insurance against loss or damage to the Leased Property or such structure or item of
furniture or equipment caused by fire or lightning, with an extended coverage endorsement and vandalism and
malicious mischief insurance,which such extended coverage insurance shall, as nearly as practicable, cover loss or
damage by explosion, windstorm, riot, aircraft, vehicle damage, smoke and such other hazards as are normally
covered by such insurance. The insurance required by this paragraph shall be in an amount equal to the replacement
cost(without deduction for depreciation)of improvements located or to be located on the Leased Property but shall
j be not less than the principal amount of the Outstanding Bonds (except that such insurance may be subject to
deductible clauses of not to exceed ten percent(10%)of the amount of any one loss);
(2) rental interruption insurance against the Authority's loss of income due to events giving
rise to the right of abatement on the part of the City under the Lease in an amount sufficient to pay the total Base
Rental payments attributable to the Leased Property for a 24 month period(measured by the Base Rental payments
for the 24 months following the month in which the insurance commences and assuming for such purpose that
Interest Components will be payable at a fixed rate of 8%per annum or such lesser amount as may be agreed upon
by the Credit Entity and the Confirming Bank); provided, that the amount of such insurance need not exceed the
total remaining Base Rental payments attributable to the Leased Property;
(3) workers' compensation insurance covering all employees working in or on the Leased
Property,in the same amount and type as other workers' compensation insurance maintained by the City for similar
employees doing similar work;and the City shall also require any other person or entity working in or on the Leased
Property to carry the foregoing amount of workers' compensation insurance;
(4) a standard comprehensive public entity liability insurance policy or policies in protection
of the City,the Authority, and their respective directors, officers and employees and the Trustee,indemnifying and
defending such parties against all direct or contingent loss or liability for damages for personal injury, death or
property damage occasioned by reason of the possession, operation or use of the Leased Property. Such public
liability and property damage insurance shall be in the form of a single limit policy in the amount of not less than
three million dollars($3,000,000), subject to a deductible clause of not to exceed$250,000,covering all such risks;
and
(5) a CLTA standard coverage leasehold policy of title insurance on the Leased Property in
an amount at least equal to the initial aggregate amount of the principal amount of Base Rental payments issued by a
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company of recognized standing duly authorized to issue the same. The title policy or policies shall insure the
City's leasehold estate with respect to the Leased Property,subject only to Permitted Encumbrances.
Insurance coverage required by paragraphs (1), (2), (3) and (4) may be maintained as part of or in
conjunction with any other insurance coverage carried by the City,and may be maintained in whole or in part in the
form of insurance maintained through a joint exercise of powers agency created for such purpose or other program
providing pooled insurance.
Notwithstanding the above provisions, as an alternative to providing the insurance required by paragraphs
(1), (2) and (4) above, with the prior written consent of the Credit Entity, the City may provide a self-insurance
method or plan of protection. Any such self-insurance maintained by the City pursuant to the foregoing sections,
will be similar in nature and scope to self-insurance programs maintained by other California cities of comparable
size and operations,and shall be reviewed annually by an Insurance Consultant.
Any insurance policy issued pursuant to the Lease shall be so written or endorsed as to make losses, if any,
payable to the City,the Authority, and the Trustee as their respective interests may appear and the net proceeds of
the insurance required in the Lease shall be applied as provided in the Lease. The net proceeds, if any, of the
insurance policy described in the Lease shall be payable to the Trustee and deposited in the Debt Service Fund.
Each insurance policy provided for in this Section shall contain a provision to the effect that the insurance company
shall not cancel the policy or modify it materially and adversely to the interests of the Authority,the Credit Entity or
the Trustee without first giving written notice thereof to the Authority,the Credit Entity and the Trustee at least sixty
(60) days in advance of such intended cancellation or modification; provided, that the Trustee shall not be
responsible for the sufficiency of any insurance herein required and shall be fully protected in accepting payment on
account of such insurance or any adjustments,compromise or settlement of any loss agreed to by it.
The City will file a certificate with the Trustee and the Credit Entity not later than September 1 of each year
certifying that the insurance required by this section is in full force and effect and that the Trustee and the Credit
Entity are named as loss payees on each insurance policy which the Lease requires to be so endorsed.
Notwithstanding the generality of the foregoing, the City will not be required to maintain or cause to be
maintained more insurance than is specifically referred to above or any policies of insurance other than standard
policies of insurance with standard deductibles offered by reputable insurers at a reasonable cost on the open market.
Damage,Destruction and Condemnation;Application of Net Proceeds
If prior to the termination of the term of the Lease (a)the Leased Property or any portion thereof is
destroyed(in whole or in part) or is damaged by fire or other casualty; or (b)title to, or the temporary use of, the
Leased Property or any portion thereof or the estate of the City or the Authority in the Leased Property or any
portion thereof is defective or shall be taken under the exercise of the power of eminent domain by any
governmental body or by any person or firm or corporation acting under governmental authority,then the City shall,
as expeditiously as possible, continuously and diligently cause the repair or replacement thereof(unless the City
elects not to repair or replace),and the City and the Authority will cause the Net Proceeds remaining after such work
has been completed to be paid to the City; provided, that the City, at its option and provided the Net Proceeds
together with any other moneys then available for the purpose are at least sufficient to prepay the aggregate annual
amounts of principal of and interest on the Bonds attributable to the portion of the Leased Property so destroyed,
damaged, defective or condemned (determined by reference to the proportion which the fair rental value of the
entire Leased Property and such that the fair rental value of the remaining portion of the Leased Property is
sufficient to pay the Principal Components and Interest Components (assuming that the Interest Components will
accrue at the Maximum Rate or if a Fixed Rate has been established, then at the Fixed Rate)), may elect not to
repair, reconstruct or replace the damaged, destroyed, defective or condemned portion of the Leased Property and
thereupon shall cause said Net Proceeds to be used for the redemption of Outstanding Bonds pursuant to the
provisions of the Indenture.
In the event that the Net Proceeds, if any, are insufficient either to (i)repair,rebuild or replace the Leased
Property so that the fair rental value of the Leased Property would be at least equal to the Base Rental payments or
(ii)to prepay the Outstanding Bonds, both as provided in the preceding paragraph, then the City may, in its sole
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discretion, budget and appropriate an amount necessary to effect such repair, rebuilding or replacement or
prepayment;provided that the failure of the City to so budget and/or appropriate shall not be a breach of or default
under the Lease.
Default
(a) The following events shall be events of default under the Lease: (i)the City shall fail to pay any
item of Additional Rental as and when the same shall become due and payable pursuant to the Lease;or(ii)the City
shall fail to deposit with the Trustee any Base Rental payment required to be so deposited by the close of business
on the day such deposit is required pursuant to the Lease,provided,that any Base Rental payments abated pursuant
to the Lease shall not constitute an event of default; (iii)the City shall breach any other terms, covenants or
conditions contained in the Lease, and shall fail to remedy any such breach with all reasonable dispatch within a
period of thirty(30)days after written notice thereof from the Authority,the Trustee or the Credit Entity to the City;
provided,however,that if the failure stated in the notice cannot be corrected within such period,then the Authority
shall not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City
within such period and is diligently pursued until the default is corrected.
(b) In addition to any default resulting from breach by the City of any agreement,condition,covenant
or term of the Lease, if(i)the City's interest therein or any part thereof is assigned or transferred without the written
consent of the Authority and the Credit Entity, either voluntarily or by operation of law, except as provided in the
Lease; or (ii)the City or any assignee shall file any petition or institute any proceedings under any proceedings
wider any act or acts, state or federal, dealing with or relating to the subject of bankruptcy or insolvency or under
any amendment of such act or acts,either as a bankrupt or as an insolvent or as a debtor or in any similar capacity,
wherein or whereby the City asks or seeks or prays to be adjudicated a bankrupt,or is to be discharged from any or
all of its debts or obligations,or offers to its creditors to effect a composition or extension of time to pay its debts,or
asks, seeks or prays for a reorganization or to effect a plan of reorganization or for a readjustment of its debts or for
any other similar relief, or if the City shall make a general or any assignment for the benefit of its creditors; or
(iii)the City shall abandon or vacate the Leased Property or any portion thereof,then in each and every such case
the City shall be deemed to be in default under the Lease.
(c) Neither the Authority nor the City shall be in default in the performance of any of its obligations
under the Lease(except for the obligation of the City to pay Base Rental Payments when due pursuant to the Lease)
unless and until it shall have failed to perform such obligation within thirty(30)days after notice by the Authority or
the City,as the case may be,to the other party properly specifying wherein it has failed to perform such obligation.
Prepayment and Credits
The City may prepay, from Net Proceeds received by it pursuant to the Lease, all or any portion of the
components of Base Rental Payments then unpaid, in whole on any date, or in part on any Bond Payment Date in
Authorized Denominations.
Liens
In the event the City shall at any time during the term of the Lease cause any improvements to the Leased
Property to be constructed or materials to be supplied in or upon or attached to the Leased Property,the City shall
pay or cause to be paid when due all sums of money that may become due or purporting to be due for any labor,
services, materials, supplies or equipment furnished or alleged to have been furnished to or for the City in, upon,
about or relating to the Leased Property and shall keep the Leased Property free of any and all liens (except for
Permitted Encumbrances)against the Leased Property or the Authority's interest therein. In the event any such lien
attaches to the Leased Property, the City shall cause such lien to be fully discharged and released at the time the
performance of any obligation secured by any such lien matures or becomes due. If any such lien shall be reduced
to final judgment and such judgment or any process as may be issued for the enforcement thereof is not promptly
stayed,or if so stayed and such stay thereafter expires,the City shall forthwith pay and discharge or cause to be paid
and discharged such judgment. The City shall, to the maximum extent permitted by law, indemnify and hold the
Authority, the Trustee, the Credit Entity and the Confirming Bank and their respective directors, officers and
employees harmless from, and defend each of them against, any claim, demand, loss, damage, liability or expense
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(including attorneys' fees)as a result of any such lien or claim of lien against the Leased Property or the Authority's
interest therein.
Quiet Enjoyment
The parties mutually covenant that the City,so long as it observes and performs the agreements,conditions,
covenants and terms required to be observed or performed by it contained in the Lease and is not in default
thereunder,shall at all times during the term hereof peaceably and quietly have,hold and enjoy the Leased Property
without suit,trouble or hindrance from the Authority.
Assignment
The parties understand that the Lease and the rights of the Authority under the Lease, with certain
exceptions, will be assigned to the Trustee as provided in the Indenture and the related Assignment Agreement,to
which assignments the City consents.
The Lease and the interest of the City in the Leased Property may not be assigned or encumbered by the
City except with the written consent of the Credit Entity and except as provided in the Lease.
Rental Abatement
Except to the extent (i)amounts held by the Trustee in the Debt Service Fund, (ii)amounts received in
respect of rental interruption insurance, and (iii)amounts, if any, otherwise legally available to the Trustee for
payments in respect of the Bonds,during any period in which,by reason of material damage,destruction,title defect
or condemnation there is substantial interference with the use and possession by the City of any portion of the
Leased Property, rental payments due under the Lease with respect to such portion of the Leased Property shall be
abated proportionately by an amount such that the portion of Base Rental remaining unabated represents the fair
rental value of the remaining portion of the Leased Property, as calculated by the City and set forth in writing to the
Authority,the Trustee,the Credit Entity and the Confirming Bank. Any abatement of rental payments pursuant to
this section shall not be considered an event of default as defined in the Lease. The City waives the benefits of Civil
Code Sections 1932(1), 1932(2) and 1933(4) and any and all other rights to terminate the Lease by virtue of any
such interference and the Lease shall continue in full force and effect. Such abatement shall continue for the period
commencing with the date of such damage, destruction,title defect or condemnation and ending with the substantial
completion of the work of repair or replacement of the portions of the Leased Property so damaged, destroyed,
defective or condemned.
In the event that rental is abated, in whole or in part, pursuant to this section due to damage, destruction,
title defect or condemnation of any part of the Leased Property and the City is unable to repair,replace or rebuild the
Leased Property from the proceeds of insurance, if any, the City agrees to apply for and obtain, if reasonably
available, any appropriate state and/or federal disaster relief in order to obtain funds to repair,replace or rebuild the
Leased Property.
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APPENDIX D
BOOK-ENTRY ONLY SYSTEM
The information in this Appendix concerning DTC and DTC's book-entry only system has been
obtained from sources that the Authority, the City and the Remarketing Agent believe to be reliable, but
neither the Authority, the City nor the Remarketing Agent takes any responsibility for the completeness or
accuracy thereof. The following description of the procedures and record keeping with respect to beneficial
ownership interests in the Bonds, payment of principal,premium, if any, accreted value, if any, and interest
with respect to the Bonds to DTC Participants or Beneficial Owners, confirmation and transfers of beneficial
ownership interests in the Bonds and other related transactions by and between DTC, the DTC Participants
and the Beneficial Owners is based solely on information provided by DTC.
The Depository Trust Company("DTC"), New York,NY, will act as securities depository for the Bonds.
The Bonds will be executed and delivered as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee)or such other name as may be requested by an authorized representative of DTC. One
fully-registered bond will be executed and delivered for each annual maturity of the Bonds, each in the aggregate
principal amount of such annual maturity,and will be deposited with DTC.
DTC,the world's largest securities depository,is a limited-purpose trust company organized under the New
York Banking Law, a"banking organization"within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a"clearing corporation"within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934. DTC holds and provides asset servicing for over 3.5 million issues of U.S. and non-U.S. equity issues,
corporate and municipal debt issues, and money market instruments (from over 100 countries) that DTC's
participants ("Direct Participants") deposit with DTC. DTC also facilitates the post-trade settlement among Direct
Participants of sales and other securities transactions in deposited securities,through electronic computerized book-
entry transfers and pledges between Direct Participants' accounts. This eliminates the need for physical movement
of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks,
trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The
Depository Trust& Clearing Corporation("DTCC"). DTCC is the holding company for DTC, National Securities
Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC
is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both
U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear
through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect
Participants"), DTC is rated AA+by Standard&Poor's. The DTC Rules applicable to its Participants are on file
with the Securities and Exchange Commission. More information about DTC can be found at www.dtcc.com and
www.dtc.org.
Purchases of Bonds under the DTC system must be made by or through Direct Participants, which will
receive a credit for the Bonds on DTC's records. The ownership interest of each actual purchaser of each Bond
(`Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from DTC of their purchase. Beneficial Owners are, however, expected to
receive written confirmations providing details of the transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Bonds are to be accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Bonds, except in the event that use of the book-entry system for'the Bonds is
discontinued.
To facilitate subsequent transfers,all Bonds deposited by Direct Participants with DTC are registered in the
name of DTC's partnership nominee, Cede & Co., or such other name as may be requested by an authorized
representative of DTC. The deposit of Bonds with DTC and their registration in the name of Cede & Co. or such
other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Bonds;DTC's records reflect only the identity of the Direct Participants to whose accounts
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such Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will
remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to
Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them,subject to any statutory or regulatory requirements as may be in effect from time to time.
Beneficial Owners of Bonds may wish to take certain steps to augment the transmission to them of notices of
significant events with respect to the Bonds,such as redemptions,tenders,defaults,and proposed amendments to the
Bond documents. For example, Beneficial Owners of Bonds may wish to ascertain that the nominee holding the
Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative,Beneficial
Owners may wish to provide their names and addresses to the registrar and request that copies of notices be
provided directly to them.
Redemption notices shall be sent to DTC. If less than all of the Bonds within a maturity are being
redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such
maturity to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to Bonds
unless authorized by a Direct Participant in accordance with DTC's MMI Procedures. Under its usual procedures,
DTC mails an Omnibus Proxy to the Authority as soon as possible after the record date. The Omnibus Proxy.
assigns Cede& Co.'s consenting or voting rights to those Direct Participants to whose accounts Bonds are credited
on the record date(identified in a listing attached to the Omnibus Proxy).
Redemption proceeds, distributions, and dividend payments on the Bonds will be made to Cede& Co., or
such other nominee as may be requested by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts upon DTC's receipt of funds and corresponding detail information from the Authority or the
Trustee, on payable date in accordance with their respective holdings shown on DTC's records. Payments by
Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case
with securities held for the accounts of customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Trustee, or the Authority, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of redemption proceeds, distributions,and
dividend payments to Cede & Co. (or such other nominee as may be requested by an authorized representative of
DTC)is the responsibility of the Authority or the Trustee,disbursement of such payments to Direct Participants will
be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility
of Direct and Indirect Participants.
A Bond Owner shall give notice to elect to have its Bonds purchased or tendered,through its Participant,to
the Trustee, and shall effect delivery of such Bond by causing the Direct Participant to transfer the Participant's
interest in the Bonds, on DTC's records, to the Trustee. The requirement for physical delivery of Bonds in
connection with an optional tender or a mandatory purchase will be deemed satisfied when the ownership rights in
the Bonds are transferred by Direct Participants on DTC's records and followed by a book-entry credit of tendered
Bonds to the Trustee's DTC account.
DTC may discontinue providing its services as depository with respect to the Bonds at any time by giving
reasonable notice to the Authority or the Trustee. Under such circumstances, in the event that a successor
depository is not obtained,physical Bonds are required to be printed and delivered.
The Authority may decide to discontinue use of the system of book-entry only transfers through DTC(or a
successor securities depository). In that event,Bonds will be printed and delivered to DTC.
TRY ONLY SYSTEM IS USED FOR THE BONDS, WILL
THE TRUSTEE,AS LONG AS A BOOK-EN
SEND ANY NOTICE OF REDEMPTION OR OTHER NOTICES TO OWNERS ONLY TO DTC. ANY
FAILURE OF DTC TO ADVISE ANY DTC PARTICIPANT, OR OF ANY DTC PARTICIPANT TO NOTIFY
ANY BENEFICIAL OWNER, OF ANY NOTICE AND ITS CONTENT OR EFFECT WILL NOT AFFECT THE
VALIDITY OF SUFFICIENCY OF THE PROCEEDINGS RELATING TO THE REDEMPTION OF THE
BONDS CALLED FOR REDEMPTION OR OF ANY OTHER ACTION PREMISED ON SUCH NOTICE.
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APPENDIX E
PRIOR BOND COUNSEL OPINION
Fulbright & Jaworski L.L.P., prior bond counsel to the City, rendered its final approving opinion
dated December 19, 2002 (the "2002 Opinion') in connection with the initial issuance of the Bonds. Stradling
Yocca Carlson & Rauth, a Professional Corporation, Bond Counsel, has made no attempt to update or
reaffirm the 2002 Opinion in connection with this Reoffering Memorandum.
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FULBRIGHT & .JAWORSKI L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP
865 SOUTH FIGUEROA STREET. 29TH FLOOR
LOS ANGELES. CALIFORNIA 90017
WWW,FULBRIGHT.COM
TELEPHONE: (213)892-9200 FACSIMILE: (213)680-4515
December 19,2002
City of Diamond Bar Public Financing Authority
21825 E.Copley Drive
Diamond Bar,California 91765
City'of Diamond Bar
21825 E.Copley Drive
Diamond Bar,California 91765
$13,755,000
'City of Diamond Bar Public Financing Authority
Variable Rate.Lease Revenue Bonds,2002 series A
(Community/Senior Center Project)
Ladies and Gentlemen:
We have acted as bond counsel to the City of Diamond Bar Public Financing Authority,a
joint exercise of powers entity established under the Constitution and laws of the State of
California.(the "Issuer"), in connection with the issuance of$13,755,000 aggregate principal
amount of its Variable hate Lease Revenue Bonds, 2002 Series A (Community/Senior Center
Project)(the"Bonds").
The Bonds are being issued pursuant to Article 4 of Chapter 5 of Division 7 of Titlel of
the California Government Code and an Indenture, dated as of December 1, 2002 (the
"Indenture'), by and between the Issuer and Union Bank of California;N.A., as trustee(the
"Trustee'). The Bonds are payable from Revenues, as defined in the Indenture, consisting
primarily of Base Rental Payments to be made by the City of Diamond Bar, California (the
"City")pursuant to a Lease Agreement,dated as of December 1,2002,each by and between the
i Issuer and the City. The City has leased certain real property and improvements thereon to the
Issuer pursuant to a Site Lease,dated as of December 1,2002(the"Site Lease"),by and between
the.City and the Issuer. Proceeds of the Bonds will be applied by the Authority to finance a
community/senior center and other public improvements, to fund capitalized interest on the
Bonds through June 1,2004 and to pay costs of.issuance of the Bonds. Capitalized terns used
herein and not otherwise defined shall have the meanings assigned to them in the Indenture or
the Lease,as applicable.
As.bond counsel,we have examined copies certified to us as being true and complete
copies of the proceedings of the Issuer and the City in connection with the issuance of the Bonds.
We have also examined such certificates of officers of the Issuer and the City and others as we
have considered necessary for the purposes of this opinion.
4§261823.1
AUSTIN•DALLAS..HONG KONG•HOUSTON.LONDON.Los:ANGELES.MINNEAPOLIS.MUNICH.NEw YORK,SAN ANTONIO.WASHINGTON DC
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DOCSOC/1509560v6/024168-0005
City of Diamond Bar Public Financing Authority
City of Diamond Bar
December 19,2002
Page 2
Based upon the foregoing,we are of the opinion that:
I The Indenture has been duly and validly authorized, executed and delivered by
the Issuer and, assuming such.Indenture constitutes the legally valid and binding obligation of
the Trustee;constitutes the legally valid and binding obligation of the Issuer,enforceable against
the Issuer.in accordance with its terms.
2. The Lease has been duly and validly authorized,executed and delivered by the
City and the Issuer, and constitutes the legally valid and binding obligation of the City and the
Issuer,enforceable against the City and the Issuer in accordance with its terms.
3. The Site Lease has been duly and validly authorized, executed and delivered by
the Issuer and the City,and constitutes the legally valid and binding obligation of the Issuer and
the City,enforceable against the Issuer and the City in accordance with its terms.
4, The Bonds :constitute.valid and binding limited obligations of the Issuer as
provided in the Indenture,and are entitled to the benefits of the Indenture..
5. The Bonds are secured by a valid pledge of the Revenues and all moneys in the
Revenue Fund,including all amounts derived from the investment of such moneys,subject to the
application thereof on the terms and conditions as set.forth in the Indenture..
6. The Internal Revenue Code of 1986 (the"Code") imposes certain requirements
that must be met subsequent to the issuance and delivery of the Bonds for interest thereon to be
and remain excluded from the grass income of the owners thereof for federal income tax
purposes. Noncompliance with such requirements could cause the interest on the.Bonds to be
included in gross income retroactive to the date of issue of the Bonds. The Issuer has covenanted
in the Indenture to maintain the exclusion of interest on the Bonds from the gross income of the
owners thereof for federal income tax purposes.
In our opinion,under existing law,interest on the Bonds is exempt from personal income
taxes of the State of California and, assuming compliance with the aforementioned covenant,
interest on the Bonds is excluded pursuant.to section 103(a)of the Code from the gross income
of the owners thereof for federal income tax purposes.
We are further of the opinion that under existing statutes, regulations,rulings and court
decisions, the Bonds are not "specified private activity bonds" within the meaning of section
57(a)(5)of the Code and,therefore,that interest on the Bonds will not be treated as an item of
tax preference for purposes of computing the alternative minimum tax imposed by section 55 of
the Code. The receipt or accrual of interest on Bonds,owned by a corporation may affect the.
computation of the alternative minimum taxable income,upon which the alternative minimum
tax is imposed,to the extent that such interest is taken into account in determining the adjusted
current earnings of that corporation(75 percent of the excess, if any, of such adjusted current
earnings over the alternative minimum taxable income being an adjustment to alternative
minimum taxable income(determined without regard to such adjustment or to the alternative tax
net operating loss deduction)).
45261823.1
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DOCSOC/1509560v6/024168-0005
City of Diamond Bar Public Financing Authority
City of Diamond Bar
December 19,2002
Page 3
Except as stated in the preceding three paragraphs, we express no opinion as to any
federal or state tax consequences of the ownership or disposition of the Bonds. Furthermore,we
expres's no opinion as to any federal, state or local tax'law consequences with respect to the
Bonds,or the interest thereon,if any action is taken with respect to the Bonds or the proceeds
thereof predicated or permitted upon the advice or approval of other bond counsel.
The opinions expressed in paragraphs 1,2,3 and 4 above are qualified to the extent the
enforceability of the Indenture, the Lease, the Site Lease and the Bonds may be limited by
applicable bankruptcy,insolvency,debt adjustment,reorganization,moratorium or similar laws
or equitable principles relating to or limiting creditors'rights generally or as to the availability of
any particular remedy. The enforceability of the Indenture, the Lease,the Site Lease and the
Bonds is subject to the effect of general principles of equity, including, without limitation,
concepts of materiality,reasonableness,good faith and fair dealing;to the possible unavailability
of specific performance or injunctive relief;regardless of whether considered in a-proceeding in
equity or at law, and to the limitations on legal remedies against governmental entities in
California. We advise you that we have not made or undertaken to make any investigation of the
state of title to any of the real property or ownership of any property described in the Lease and
the Site Lease, or of the accuracy or sufficiency of the description of such property contained
therein,and we express no opinion with respect to such matters.
No opinion is expressed herein on the accuracy, completeness or sufficiency of the
Official Statement or other offering material relating to the Bonds.
We call attention to the fact that the opinions expressed herein and the exclusion from
gross income of the interest on the Bonds as described above may be affected by actions taken or
omitted or events occurring or not occurring after the date hereof. We have not undertaken to
determine, or to inform any person or entity, whether any such actions or events are taken,
omitted,occur or fail to occur.
Our opinions are,based on existing law; which is subject to change. Such opinions are
further based on our knowledge of facts as of the date hereof We assume no duty to update or
supplement our opinions to reflect any facts or circumstances that may thereafter come to our
attention or to reflect any changes in any law that may thereafter occur or become effective.
Moreover,our opinions are not a guarantee of result and are not binding on the Internal Revenue
Service; rather, such opinions represent our legal judgment based upon our review of existing
law that we deem relevant to such opinions and in reliance upon the representations and
covenants referenced above.
Very truly yours,
45261823.1
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APPENDIX F
PROPOSED FORM OF CONTINUING DISCLOSURE CERTIFICATE
Upon the conversion of the Bonds to a Fixed Rate, the City proposes to enter into a Continuing
Disclosure Certificate in substantially the following form:
This Continuing Disclosure Certificate(the "Disclosure Certificate")is executed and delivered by the City
of Diamond Bar(the"City")in connection with the reoffering upon conversion to a Fixed Rate of$11,885,000 City
of Diamond Bar Public Financing Authority Variable Rate Lease Revenue Bonds, 2002 Series A (the "Bonds").
The Bonds were issued pursuant to an Indenture of Trust, dated as of December 1, 2002 (the"Indenture"), by and
between Union Bank,N.A., formerly known as Union Bank of California,N.A., as trustee (the"Trustee") and the
City of Diamond Bar Public Financing Authority. The City covenants and agrees as follows:
1. Purpose of this Disclosure Certificate. This Disclosure Certificate is being executed and delivered
by the City for the benefit of the Holders and Beneficial Owners of the Bonds and in order to assist the Participating
Underwriter in complying with the Rule.
2. Definitions. In addition to the definitions set forth in the Indenture,which apply to any capitalized
term used in this Disclosure Certificate unless otherwise defined in this Section,the following capitalized terns shall
have the following meanings:
Annual Report. The term"Annual Report"means any Annual Report provided by the City pursuant to,and
as described in, Sections 3 and 4 of this Disclosure Certificate.
Beneficial Owner. The term`Beneficial Owner" means any person which: (a)has the power, directly or
indirectly,to vote or consent with respect to, or to dispose of ownership of, any Bonds (including persons holding
Bonds through nominees, depositories or other intermediaries); or (b)is treated as the owner of any Bonds for
federal income tax purposes.
EMMA. The term "EMMA" means the Municipal Securities Rulemaking Board's Electronic Municipal
Market Access System for municipal securities disclosures,maintained on the Internet at http://emma.msrb.org/.
Fiscal Year. The term"Fiscal Year"means the one-year period ending on the last day of June of each year.
Holder. The term"Holder"means a registered owner of the Bonds.
Listed Events. The term "Listed Events" means any of the events listed in Sections 5(a) and (b) of this
Disclosure Certificate.
Participating Underwriter. The term"Participating Underwriter"means any of the original underwriters of
the Bonds required to comply with the Rule in connection with offering of the Bonds.
Reoffering Memorandum. The term "Reoffering Memorandum" means the Reoffering Memorandum
dated November_,2011 relating to the Bonds.
Rule. The term "Rule" means Rule 15c2-12 adopted by the Securities and Exchange Commission under
the Securities Exchange Act of 1934,as the same may be amended from time to time.
3. Provision of Annual Reports.
(a) The City shall provide not later than 270 days following the end of its Fiscal Year
(commencing with Fiscal Year 2011)to EMMA an Annual Report relating to the immediately preceding Fiscal Year
which is consistent with the requirements of Section 4 of this Disclosure Certificate, which Annual Report may be
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DOCSOC/1509560v6/024168-0005
submitted as a single document or as separate documents comprising a package, and may cross-reference other
information as provided in Section 4 of this Disclosure Certificate.
(b) If the City is unable to provide to EMMA an Annual Report by the date required in
subsection (a), the City shall send to EMMA a notice in the manner prescribed by the Municipal Securities
Rulemaking Board.
4: Content of Annual Reports. The Annual Report shall contain or incorporate by reference the
' following:
(a) The audited financial statements of the City for the prior Fiscal Year, prepared in
accordance with generally accepted accounting principles as promulgated to apply to governmental entities from
time to time by the Governmental Accounting Standards Board. If the City's audited financial statements are not
available by the time the Annual Report is required to be filed pursuant to Section 3(a), the Annual Report shall
contain unaudited financial statements in a format similar to the financial statements contained in the final
Reoffering Memorandum, and the audited financial statements shall be filed in the same manner as the Annual
Report when they come available.
(b) Principal amount of the Bonds outstanding.
(c) An update of the information in Tables 1,2 and 3 under the caption"CITY FINANCIAL
INFORMATION"in the Reoffering Memorandum.
Any or all of the items listed above may be included by specific reference to other documents, including
official statements of debt issues of the City or related public entities, which have been submitted to ENEMA;
provided, that if any document included by reference is a final official statement, it must be available from the
Municipal Securities Rulemaking Board; and provided further, that the City shall clearly identify each such
document so included by reference.
5. Reporting of Significant Events.
(a) Pursuant to the provisions of this Section 5, the City shall give, or cause to be given,
notice of the occurrence of any of the following events with respect to the Bonds in a timely manner not more than
ten(10)Business Days after the event:
1. principal and interest payment delinquencies;
2. unscheduled draws on debt service reserves reflecting financial difficulties;
3. unscheduled draws on credit enhancements reflecting financial difficulties;
4. substitution of credit or liquidity providers,or their failure to perform;
5. issuance by the Internal Revenue Service of proposed or final determination of
taxability or of a Notice of Proposed Issue(IRS Form 5701 TEB);
6. tender offers;
7. defeasances;
8. ratings changes;and
9. bankruptcy,insolvency,receivership or similar proceedings.
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Note: For the purposes of the event identified in subparagraph(9), the event is considered to occur when
any of the following occur:the appointment of a receiver, fiscal agent or similar officer for an obligated person in a
proceeding under the U.S.Bankruptcy Code or in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of the assets or business of the obligated
person, or if such jurisdiction has been assumed by leaving the existing governmental body and officials or officers
in possession but subject to the supervision and orders of a court or governmental authority,or the entry of an order
confirming a plan of reorganization, arrangement or liquidation by a court or governmental authority having
supervision or jurisdiction over substantially all of the assets or business of the obligated person.
(b) Pursuant to the provisions of this Section 5, the City shall give, or cause to be given,
notice of the occurrence of any of the following events with respect to the Bonds,if material:
1. unless. described in Section 5(a)(5), adverse tax opinions or other material
notices or determinations by the Internal Revenue Service with respect to the tax status of the Bonds or other
material events affecting the tax status of the Bonds;
2. modifications to the rights of Bond holders;
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3. optional,unscheduled or contingent Bond redemptions;
4. release,substitution or sale of property securing repayment of the Bonds;
5. non-payment related defaults;
6. the consummation of a merger, consolidation, or acquisition involving the City
or the sale of all or substantially all of the assets of the City,other than in the ordinary course of business,the entry
into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any
such actions,other than pursuant to its terms;and
7. appointment of a successor or additional trustee or the change of the name of a
trustee.
(c) If the City determines that knowledge of the occurrence of a Listed Event under Section
5(b) would be material under applicable federal securities laws, the City shall file a notice of such occurrence with
EMMA in a timely manner not more than ten(10)Business Days after the event.
6. Customarily Prepared and Public Information. Upon request,the City shall provide to any person
financial information and operating data regarding the City which is customarily prepared by the City and is publicly
available.
7. Termination of Obligation. The City's obligations under this Disclosure Certificate shall
terminate upon the legal defeasance, prior redemption or payment in full of all of the Bonds. If such termination
occurs prior to the final maturity of the Bonds,the City shall give notice of such termination in the same manner as
for a Listed Event under Section 5(c).
8. Amendment;Waiver. Notwithstanding any other provision of this Disclosure Certificate,the City
may amend this Disclosure Certificate, and any provision of this Disclosure Certificate may be waived, provided
that,in the opinion of nationally recognized bond counsel,such amendment or waiver is permitted by the Rule.
9. Additional Information. Nothing in this Disclosure Certificate shall be deemed to prevent the City
from disseminating any other information,using the means of dissemination set forth in this Disclosure Certificate
or any other means of communication, or including any other information in any notice of occurrence of a Listed
Event, in addition to that which is required by this Disclosure Certificate. If the City chooses to include any
information in any notice of occurrence of a Listed Event in addition to that which is specifically required by this
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Disclosure Certificate,the City shall not thereby have any obligation under this Disclosure Certificate to update such
information or include it in any future notice of occurrence of a Listed Event.
10. Default. In the event of a failure of the City to comply with any provision of this Disclosure
Certificate, any Holders or Beneficial Owners of at least 50% aggregate principal amount of the Bonds may take
such actions as may be necessary and appropriate, including seeking mandate or specific performance by court
order, to cause the City to comply with its obligations under this Disclosure Certificate. A default under this
Disclosure Certificate shall not be deemed an Event of Default under the Indenture, and the sole remedy under this
Disclosure Certificate in the event of any failure of the City to comply with this Disclosure Certificate shall be an
action to compel performance.
No Holder or Beneficial Owner of the Bonds may institute such action, suit or proceeding to compel
performance unless they shall have first delivered to the City satisfactory written evidence of their status as such,
and a written notice of and request to cure such failure,and the City shall have refused to comply therewith within a
reasonable time.
11. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of the City, the
Participating Underwriter and Holders and Beneficial Owners from time to time of the Bonds, and shall create no
rights in any other person or entity.
Dated: December 1,2011 CITY OF DIAMOND BAR
By:
Its:
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AMENDMENT NO. 1 TO LEASE AGREEMENT
by and between the
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
and the
CITY OF DIAMOND BAR
and
I RELATING TO
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
FIXED RATE LEASE REVENUE BONDS,2002 SERIES A
(COMMUNITY/SENIOR CENTER PROJECT)
Dated as of December 1,2011
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AMENDMENT NO. 1 TO LEASE AGREEMENT
This Amendment No. 1 to Lease Agreement(the"Amendment") is executed and entered into
as of December 1, 2011, by and among the City of Diamond Bar Public Financing Authority, a joint
powers authority, duly created and validly existing under the Constitution and laws of the State of
California (the "Authority"), as lessor, and the City of Diamond Bar, a municipal corporation duly
organized and existing under the Constitution and laws of the State of California (the "City"), as
lessee.
WITNESSETH:
WHEREAS, the Authority and the City entered into the Lease Agreement, dated as of
December 1, 2002 (the "Lease"), relating to the City of Diamond Bar Public Financing Authority
Variable Rate Lease Revenue Bonds, 2002 Series A (Community/Senior Center Project) (the
"Bonds"); and
WHEREAS, the Authority and the City desire to amend the Lease to reflect certain
comments received from S&P (as such term is defined in the Indenture of Trust, dated as of
December 1, 2002, by and between the Authority and Union Bank, N.A., formerly known as Union
Bank of California, N.A., as trustee) with respect to the conversion of the interest rate on the Bonds
to a Fixed Rate;
NOW, THEREFORE, IN CONSIDERATION OF THESE PREMISES AND OF THE
MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER
VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS
FOLLOWS:
j SECTION 1. This Amendment hereby incorporates by reference all terms and conditions
set forth in the Lease unless specifically modified by this Amendment. All terms and conditions set
forth in the Lease which are not specifically modified by this Amendment shall remain in full force
and effect.
SECTION 2. The capitalized terms set forth in this Amendment not otherwise defined
herein shall have the meanings set forth in the Lease.
SECTION 3. All references to "July 1" set forth in Section 5.01(a) are hereby revised to
"June 1."
SECTION 4. The references to "July 1 set forth in the table comprising Exhibit B are
hereby revised to"June 1"
SECTION 5. THIS AMENDMENT SHALL BE CONSTRUED AND GOVERNED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
SECTION 6. This Amendment shall become effective upon its execution and delivery.
SECTION 7. This Amendment may be executed in several counterparts, each of which
shall be deemed as an original,all of which shall constitute but one of the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their
officers thereunto duly authorized as of the day and year first written above.
CITY OF DIAMOND BAR PUBLIC FINANCING
AUTHORITY
By:
President
CITY OF DIAMOND BAR
By:
Mayor
Agreed:
UNION BANK,N.A., as Trustee ,
By:
Title: Authorized Officer
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BOND COUNSEL AGREEMENT
CITY OF DIAMOND BAR
(2002 Series A Fixed Rate Conversion)
THIS AGREEMENT, made as of this 18th day of October, 2011, by and between the CITY
OF DIAMOND BAR, a municipal corporation organized and existing under the laws of the State of
California (herein "City") and STRADLING YOCCA CARLSON & RAUTH, a Professional
Corporation(herein"Bond Counsel"):
RECITALS:
A. On December 19, 2002, the City caused the City of Diamond Bar Public Financing
Authority (herein "Authority") to issue its Variable Rate Lease Revenue Bonds, 2002 Series A
(herein"Bonds") in the aggregate principal amount of$13,755,000 pursuant to an Indenture, dated as
of December 1, 2002 (herein "Indenture"), by and between the Authority and Union Bank, N.A.,
formerly known as Union Bank of California,N.A.,as trustee (herein"Trustee");
B. Since the date of their initial issuance, the Bonds have borne interest at a Weekly
Rate(as such term is defined in the Indenture)and the regularly scheduled payments of principal and
interest on the Bonds have been payable from the proceeds of draws upon an irrevocable direct-pay
letter of credit (herein "Letter of Credit") issued by Union Bank, N.A., formerly known as Union
Bank of California,N.A.;
C. The City desires to convert the interest rate on the Bonds to a Fixed Rate (as such
term is defined in the Indenture) in accordance with the provisions of the Indenture on December 1,
2011 and to terminate the Letter of Credit(collectively herein"Conversion");
D. The City desires to retain Bond Counsel to do the necessary legal work hereinafter
outlined, upon the terms and conditions hereinafter set forth,to assist in undertaking the Conversion;
and
E. Bond Counsel represents that it is ready, willing and able to perform said legal work;
NOW, THEREFORE, in consideration of the premises, and the mutual covenants, terms and
conditions herein contained,the parties agree as follows:
1. SCOPE OF SERVICES
A. Services Related to the Conversion
Bond Counsel agrees to provide legal services in connection with the
Conversion. Such services shall include the rendering of legal opinions (hereinafter called the
"opinions")pertaining to the Conversion to the effect that:
1. The Conversion is not prohibited under California law or the
Indenture; and
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2. The Conversion will not cause the interest on the Bonds to fail to be
exempt from personal income taxes of California, or to fail to be
excluded pursuant to Section 103(a) of the Internal Revenue Code of
1986, as amended, from the gross income of the owners thereof for
federal income tax purposes.
Bond Counsel's services will also include:
i. Researching applicable laws and ordinances relating to the
Conversion and analyzing the Indenture, the Lease and the Site Lease
(as such terms are defined in the Indenture) and other documents in
connection with the initial issuance of the Bonds;
ii. Attending conferences and consulting with City staff and the City
Attorney regarding such laws, and the need for amendments thereto, .
or additional legislation;
iii. Participating in meetings, conferences or discussions with the City's
financial advisor (herein "Financial Advisor"), the remarketing agent
for the Bonds in a Fixed Rate (herein "Remarketing Agent") or other
experts retained by the City with respect to the Conversion;
iv. Supervising and preparing documentation of the steps to be taken
with respect to the Conversion, including:
a. Drafting all resolutions, notices, rules and regulations,
agreements and other legal documents required for the
Conversion, and all other documents relating to the security of
the Bonds, in consultation with the City, the City Attorney,
the Financial Advisor, the Remarketing Agent and other
experts;
b. Preparing the record of proceedings for the Conversion;
C. Assisting in the drafting and preparation of the reoffering
memorandum in connection with the Conversion (herein
"Reoffering Memorandum");
d. Drafting the remarketing agreement in connection with the
Conversion (herein"Remarketing Agreement");
e. Participating in meetings and other conferences scheduled by
the City,the Financial Advisor and the Remarketing Agent;
f. Consulting with prospective purchasers, their legal counsel
and rating agencies;
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g. Consulting with the City Attorney concerning any legislation
or litigation which may affect the Conversion,the security for
the Bonds, or any other matter related to the Bonds;
h. Consulting with the Trustee and its counsel;
i. Preparing the form of the Bonds in a Fixed Rate, and
supervising their production or printing, signing,
authentication and delivery;
j. Rendering a legal opinion to the Remarketing Agent as to the
applicability of the registration requirements of federal
securities laws, the valid and binding nature of the
Remarketing Agreement and the fair and accurate nature of
certain portions of the Reoffering Memorandum; and
k. Any other matters necessary to effect the Conversion.
B. Disclosure Counsel Services
Bond Counsel shall prepare, with the assistance of City staff and other
professionals in the financing, the preliminary Reoffering Memorandum and final Reoffering
Memorandum relating to the Conversion and remarketing of the Bonds in a Fixed Rate, and a
continuing disclosure certificate or agreement of the City to comply with Section 240-15c2-12 of
Chapter II of Title 17 of the Code of Federal Regulations. In connection with the preparation of the
Reoffering Memorandum, Bond Counsel's services will also include rendering a lOb-5 letter
regarding the Reoffering Memorandum to the Remarketing Agent to the general effect that Bond
Counsel is not aware of any misstatement of a material fact or omission of a material fact in those
portions of the Reoffering Memorandum referenced in the letter.
C. Special Services
"Special Services" are defined for purposes of this Agreement as services in
addition to the services outlined in Section LA and 1.13 above. Special Services will include, but not
be limited to, any work after the Conversion related to the amendment of the Bonds or agreements
and special studies or analyses. Special Services must be authorized in writing by the City Manager
or the City Attorney.
2. COMPENSATION
The City agrees to pay Bond Counsel the following amounts as compensation for
services rendered by Bond Counsel under this Agreement:
A. For the services to be rendered under Sections LA and 1.13 of this Agreement,
$55,000, contingent on the Conversion.
B. In the event that Bond Counsel is requested to perform Special Services as set
forth in Section LC above, Bond Counsel will be paid fees at the hourly rates set forth in Exhibit A,
or in such other manner as is mutually acceptable to the City and Bond Counsel. Such fees will be
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billed monthly and will be payable by the City within thirty (30) days following the receipt of each
invoice.
C. In addition to the fees set forth in Sections 2.A and 2.13 above, Bond Counsel
shall be reimbursed for the actual cost of any out-of-pocket expenses reasonably incurred by Bond
Counsel in the course of its employment, such as document reproduction, telecommunications
charges, printing costs, filing fees, long-distance telephone calls, messenger services, overnight
delivery services, travel and similar items of expense. Expenses related to the services described in
Section 1.13 above will be billed monthly, and all expenses incurred in connection with services
rendered under Section LA related to the Conversion will be billed upon the Conversion.
3. PERSONNEL AND CONTRACT ADMCINISTRATION
City agrees to accept and Bond Counsel agrees to provide the aforementioned
services primarily through Brian Forbath, Cyrus Torabi and Carol L. Lew. It is agreed that
Mr. Forbath shall be the attorney who will provide the primary services under this Agreement. If any
one of the above attorneys is unable to provide such services due to death, disability or similar event,
Bond Counsel reserves the right to substitute another of its attorneys, upon approval by the City
Attorney, or his designee, to provide such services; and such substitution shall not alter or affect in
any way Bond Counsel's or the City's other obligations under this Agreement.
This Agreement will be administered by the City Manager, or his or her designee.
4. TERMINATION
A. This Agreement may be terminated without cause by the City or Bond
Counsel upon thirty(30) days' advance written notice to the other party. Such notification shall state
the effective date of the termination of this Agreement.
B. Bond Counsel reserves the absolute right to withdraw from representing the
City if, among other things, the City fails to honor the terms of this Agreement, the City fails to
cooperate fully or follow Bond Counsel's advice on a material matter, or any fact or circumstance
occurs that would, in Bond Counsel's view, render its continuing representation unlawful or
unethical. If Bond Counsel elects to withdraw, the City will take all steps necessary to free Bond
Counsel of any obligation to perform further services, including the execution of any documents
necessary to complete such withdrawal, and Bond Counsel will be entitled to be paid at the time of
withdrawal for all services rendered and costs and expenses paid or incurred on the City's behalf in
accordance with the payment terms set forth in Section 2 above. If necessary in connection with
litigation,Bond Counsel would request leave of court to withdraw.
C. Bond Counsel's representation of the City will be considered terminated at
the earlier of: (i)the City's termination of its representation; (ii)Bond Counsel's withdrawal from its
representation of the City; or(iii)the substantial completion by Bond Counsel of its substantive work
for the City. Unless Bond Counsel has been specifically engaged to perform Special Services related
to the Conversion after the date of the Conversion, Bond Counsel's representation of City with
respect to the Conversion shall terminate on the date of the Conversion.
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5. ARBITRATION
IN THE EVENT OF A DISPUTE REGARDING FEES, COSTS, OR ANY OTHER
MATTER ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER TO BOND
COUNSEL'S RELATIONSHIP WITH THE CITY, OR BOND COUNSEL'S OR THE CITY'S
PERFORMANCE OF THIS AGREEMENT, INCLUDING THE QUALITY OF THE SERVICES
WHICH BOND COUNSEL RENDERS, THE DISPUTE SHALL BE DETERMINED, SETTLED
AND RESOLVED BY CONFIDENTIAL ARBITRATION IN THE COUNTY OF ORANGE,
CALIFORNIA. ANY AWARD SHALL BE FINAL, BINDING AND CONCLUSIVE UPON THE
PARTIES, AND A JUDGMENT RENDERED THEREON MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF. SHOULD YOU ELECT TO HAVE ANY FEE DISPUTE
ARBITRATED PURSUANT TO NONBINDING ARBITRATION UNDER STATUTORY OR
CASE LAW, THEN SUCH NONBINDING ARBITRATION SHALL DETERMINE ONLY THE
ISSUE OF THE AMOUNT OF FEES PROPERLY CHARGEABLE TO YOU. ANY OTHER
CLAIMS OR DISPUTES BETWEEN US, INCLUDING CLAIMS FOR PROFESSIONAL
NEGLIGENCE, SHALL REMAIN SUBJECT TO BINDING ARBITRATION PURSUANT TO
THIS AGREEMENT.
Arbitration may be demanded by the sending of written notice to the other party. If
arbitration is demanded, within 20 days of the demand the City shall present a list of five qualified
individuals who would be willing to serve that the City would find acceptable to act as arbitrator. To
serve as arbitrator, the individual must be a retired judge having served on any federal court or the
California Superior Court or higher court in the State of California. Within 20 days of receiving the
City's list, Bond Counsel may at its sole discretion: (i) select any individual from that list and that
individual shall serve as the arbitrator; or(ii)propose its own list of five individuals for arbitrator. If
Bond Counsel chooses to present a separate list, the City may within 20 days select any individual
from that list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end
of this process, the City and Bond Counsel each shall select one individual from its own list and
those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to
the procedures set forth in the California Code of Civil Procedure § 1280 et seq., and in that
connection you and we agree that § 1283.05 thereof is applicable to any such arbitration. Nothing
herein shall limit the right of the parties to stipulate and agree to conduct the arbitration pursuant to
the then-current rules of the American Arbitration Association, the Judicial Arbitration & Mediation
Services, or any other agreed-upon arbitration services provider.
Notwithstanding any of the foregoing, the City shall be entitled to opt out of the
arbitration provisions contained in this Section.
r
6. + MISCELLANEOUS
A. Bond Counsel and the employees of Bond Counsel, in performance of the
Agreement, shall act in an independent capacity and not as officers or agents of the City.
B. Without the written consent of the City, this Agreement is not assignable by
Bond Counsel in whole or in part.
C. No alteration or variation of the terms of this Agreement shall be valid unless
in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated
herein shall be binding on any of the parties hereto.
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D. In accordance with the requirements of California Business and Professions
Code § 6148, Bond Counsel advises the City that the firm maintains professional errors and
omissions insurance coverage applicable to the services to be rendered to the City.
This Agreement is executed on this 18th day of October, 2011, at Diamond Bar, California,
and effective as of October 18,2011.
CITY OF DIAMOND BAR:
City Manager
ATTEST:
City Clerk
(seal)
STRADLING YOCCA CARLSON&RAUTH
By: Brian Forbath
Title: Shareholder
APPROVED AS TO FORM:
City Attorney
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EXHIBIT A
Shareholders $445
(Forbath and Lew)
Associates $300
(Torabi)
Paralegals $135
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PROFESSIONAL SERVICES AGREEMENT
FOR FINANCIAL ADVISOR
This agreement has been entered into this day of , 2011 by and between the
City of Diamond Bar, California (the "City") and Fieldman, Rolapp & Associates, (herein, the
"Consultant").
WHEREAS, the City desires independent financial advisory services to be performed in
connection with the fixed rate conversion of the City of Diamond Bar Lease Revenue Bonds 2002
Series A(herein,the "Project"); and
WHEREAS, the City desires to retain the professional and technical services of the Consultant
for the purpose of debt issuance, (herein,the "Services");
WHEREAS, the Consultant is well qualified to provide professional financial advice to public
entities such as the City;
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants and
conditions hereinafter set forth,it is agreed as follows:
Section 1 Financial Advisory Services.
As directed by the City, Consultant will provide services in connection with the
fixed rate conversion of the City of Diamond Bar Lease Revenue Bonds 2002
Series A as such Services are fully described in Exhibit A attached to this
Agreement. Consultant is engaged in an expert financial advisory capacity to the
City only. It is expressly understood that the Services rendered hereunder are
rendered solely to the City of Diamond Bar. Consultant does not undertake any
responsibility to review disclosure documents on behalf of owners or beneficial
owners of bonds or debt which may arise from the Consultant's work hereunder.
Section 2 Additional Services.
Services performed for the City by Consultant that are not otherwise specifically
identified in Exhibit A to this Agreement, shall be additional services.
Additional services include,but are not limited to,the following:
2.01 Assisting the City in obtaining enabling legislation or conducting referendum
elections.
2.02 Extraordinary services and extensive computer analysis in the structuring or
planning of any debt issue or financing program.
2.03 The repeat of any element of a service described in Exhibit A to this Agreement
which is made necessary through no fault of Consultant.
2.04 Financial management services, including development of financial policies,
capital improvement plans, economic development planning, credit analysis or
review and such other services that are not ordinarily considered within the scope
of services described in Exhibit A to this Agreement.
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FRA 129534
2.05 Services rendered in connection with any undertaking of the City relating to a
continuing disclosure agreement entered into in order to comply with Securities
and Exchange Commission Rule 15c2-12 or other similar rules.
2.06 Services rendered to the City in connection with calculations or determination of
any arbitrage rebate liability to the United States of America arising from
investment activities associated with debt issued to fund the Project.
Section 3 Compensation.
3.01 For Consultant's performance of Services as described in Section 1 of this
Agreement the Consultant's compensation will be as provided in Part 1 of Exhibit
B attached to this Agreement, plus Consultant's expenses incurred in rendering
such Services. Consultant's expenses may include, but are not limited to travel,
telephone/conference calls, postage, courier, database access services, and
printing.
3.02 For Consultant's performance of additional services as described in Section 2 of
this Agreement, the Consultant's compensation will be as provided in Part 2 of
Exhibit B attached to this agreement, plus Consultant's expenses incurred in
rendering such services. Consultant's expenses may include, but are not limited
to travel, telephone/conference calls, postage, courier, database access services
and printing.
3.03 Payment for Consultant's Services rendered pursuant to Section 1 of this
Agreement shall be as provided for in Exhibit B to this Agreement, unless
specified to the contrary elsewhere in this Agreement. The Consultant may
submit monthly invoices for payment for services provided pursuant to Section 2
of this Agreement unless an alternate date or dates have been specifically agreed
to in writing. Unless otherwise specified, payment of Consultant's compensation
and expenses is due thirty (30) days after submission of Consultant's invoice for
services.
3.04 In the event the Services of the Consultant are abandoned prior to completion of
Consultant's work, Consultant shall be compensated for Services performed to
the point of abandonment as if such Services were an additional service pursuant
to Section 2 of this Agreement, subject to a maximum fee of 0. An act of
abandonment shall be deemed to have occurred when no action has been taken
by the City relative to the services of the Consultant for a period of three (3)
.months from the date of the initial performance of a service, or there has been a
written notification to the Consultant of an abandonment of the Project by the
City.
3.05 Consultant fees set forth in this Agreement and Exhibits are guaranteed by
Consultant for a period of twelve(12)months from the date of this Agreement.
Section 4 Personnel.
Consultant has, or will secure, all personnel required to perform the services
under this Agreement. Consultant shall make available other qualified personnel
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Project No.11162
FRA 129534
of the firm as may be required to complete Consultant's services. The City has
the right to approve or disapprove any proposed changes in Consultant's staff
providing service to the City. The City and Consultant agree that such personnel
are employees only of Consultant and shall not be considered to be employees of
the City in any way whatsoever.
Section 5 Term of Agreement.
This Agreement shall continue in full force and effect for a period of twenty-four
(24) months from the date hereof unless terminated by either party by not less
than thirty (30) days written notice to the other party except that the Agreement
shall continue in full force and effect until completion of Consultant's services or
until an abandonment shall have occurred as described in Section 3.04 hereof.
This Agreement may be extended from time to time as agreed by the City and the
Consultant.
Section 6 Modification.
This Agreement contains the entire agreement of the parties. It may be amended
in whole or in part from time to time by mutual consent of the parties. This shall
not prohibit the City and Consultant from entering into separate agreements for
other services.
Section 7 Assignment.
The rights and obligations of the City under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the City. This
agreement may not be assigned by the Consultant without the consent of the City
except for compensation due Consultant.
Section 8 Disclosure.
Consultant does not assume the responsibilities of the City, nor the
responsibilities of the other professionals and vendors representing the City, in
the provision of services and the preparation of the financing documents,
including initial and secondary market disclosure, for financings undertaken by
the City. Information obtained by Consultant and included in any disclosure
documents is, by reason of experience, believed to be accurate; however, such
information is not guaranteed by Consultant.
Section 9 Confidentiality.
The Consultant agrees that all financial, statistical, personal, technical and other
data and information designated by the City as confidential shall be protected by
the Consultant from unauthorized use or disclosure.
Section 10 Indemnification.
The City and Consultant shall each indemnify and hold harmless the other from
and against any and all losses, claims, damages, expenses, including legal fees
for defense, or liabilities, collectively,damages,to which either may be subjected
CITY OF DIAMOND BAR/FIELDMAN,ROLAPP&ASSOCIATES Page 3
Project No.11162
FRA 129534
by reason of the other's acts, errors or omissions, except however, neither will
indemnify the other from or against damages by reason of changed events and
conditions beyond the control of either or errors of judgment reasonably made.
Section 11 Insurance.
11.01 Consultant shall maintain workers' compensation and employer's liability
insurance during the term of this Agreement.
11.02 Consultant, at its own expense, shall obtain and maintain insurance at all times
during the prosecution of this contract. Such insurance must be written with a
Best Guide "A"-rated or higher insurance carrier admitted to write insurance in
the state where the work is located.
11.03 Certificates of insurance naming the City as an additional insured shall be
submitted to the City evidencing the required coverages, limits and locations of
operations to which the insurance applies, and the policies of insurance shall
contain a 30 day notice of cancellation or non-renewal
11.04 Insurance coverages shall not be less than the following:
A. Workers' Compensation
1. State worker's compensation statutory benefits
2. Employer's Liability-policy limits of not less than$1,000,000.
B. Comprehensive General Liability coverage with policy limits of not less than
$1,000,000 combined single limit for bodily injury and property damage and
including coverage for the following:
1. Premises operations
2. Contractual liability
3. Products
4. Completed operation
j C. Errors and omissions with policy limits of$2,000,000.
Section 12 Permits/Licenses.
The Consultant shall obtain any permits or licenses, as may be required for it to
complete the services required under this Agreement.
Section 13 Binding Effect.
13.01 A waiver or indulgence by the City of a breach of any provision of this
Agreement by the Consultant shall not operate or be construed as a waiver of any
subsequent breach by the Consultant.
13.02 All agreements and covenants contained herein are severable and in the event any
of them shall be held to be invalid by any competent court, this Agreement shall
be interpreted as if such invalid agreements or covenants were not contained
CITY OF DIAMOND BAR/HELDMAN,ROLAPP&ASSOCIATES Page 4
Project No.11162
FRA 129534
herein, and the remaining provisions of this Agreement shall not be affected by
such determination and shall remain in full force and effect. This Agreement
shall not fail because any part or any clause hereof shall be held indefinite or
invalid.
13.03 Each party hereto represents and warrants that this Agreement has been duly
authorized and executed by it and constitutes its valid and binding agreement,
and that any governmental approvals necessary for the performance of this
Agreement have been obtained.
13.04 The validity, interpretation and construction of this Agreement and of each part
hereof shall be governed by the laws of the State of California. Venue for any
lawsuit concerning this agreement is Orange County,California.
IN WITNESS Whereof, the parties have duly executed this Agreement as of the day and year
first above set forth.
CITY OF DIAMOND BAR
By: Title:
Date:
FIELDMAN,ROLAPP &ASSOCIATES
19900 MacArthur Boulevard, Suite 1100
Irvine, CA 92612
By: Title:
Date:
CITY OF DIAMOND BAR/FIELDMAN,ROLAPP&ASSOCIATES Page 5
Project No.11162
FRA 129534
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR
BY AND BETWEEN
THE CITY OF DIAMOND BAR
AND
FIELDMAN,ROLAPP&ASSOCIATES
Scope of Services
A. General Services.
The Consultant shall perform all the duties and services specifically set forth herein and shall
provide such other services as it deems necessary or advisable, or are reasonable and necessary to
accomplish the intent of this Agreement in a manner consistent with the standards and practice of
professional financial advisors prevailing at the time such services are rendered to the City.
The City may, with the concurrence of Consultant, expand this Agreement to include any
additional services not specifically identified within the terms of this Agreement. Any additional
services may be described in an addendum to this Exhibit A and are subject to fees described in
Exhibit B to this Agreement.
B. Debt Issuance Services.
The Consultant shall assume primary responsibility for assisting the City in coordinating the
planning and execution of each debt issue relating to the Project. Insofar as the Consultant is
providing Services which are rendered only to the City, the overall coordination of the financing
shall be such as to minimize the costs of the transaction coincident with maximizing the City's
financing flexibility and capital market access. The Consultant's proposed debt issuance Services
may include, but shall not be limited to,the following:
• Establish the Financing Objectives
• Develop the Financing Schedule
• Monitor the Transaction Process
• Review the Reoffering Memorandum,both preliminary and final
• Procure and Coordinate Additional Service Providers
• Provide Financial Advice to the City Relating to Financing Documents.
• Compute Sizing and Design Structure of the Debt Issue
• Plan and Schedule Rating Agency Presentation and Investor Briefings
• Conduct Credit Enhancement Procurement and Evaluation
• Conduct Market Analysis and Evaluate Timing of Market Entry
• Recommend Award of Debt Issuance
• Provide Pre-Closing and Closing Assistance
CITY OF DIAMOND BAR/FIELDMAN,ROLAPP&ASSOCIATES Exhibit A,Page 1
Project No.11162
FRA 129534
Specifically, Consultant will:
1. Establish the Financing Objectives.
At the onset of the financing transaction process for the Project, the Consultant shall
review the City's financing needs and in conjunction with the City's management, outline
the objectives of the financing transaction to be undertaken and its proposed form.
Unless previously determined, Consultant shall recommend the method of sale of debt
and outline the steps required to achieve efficient market access.
2. Develop the Financing;Timetable.
The Consultant shall take the lead role in preparing a schedule and detailed description of
the interconnected responsibilities of each team member and update this schedule, with
refinements,as necessary, as the work progresses.
i3. Monitor the Transaction Process.
The Consultant shall have primary responsibility for the successful implementation of the
financing strategy and timetable that is adopted for each debt issue relating to the Project.
The Consultant shall coordinate (and assist, where appropriate) in the preparation of the
legal and disclosure documents and shall monitor the progress of all activities leading to
the sale of debt. The Consultant shall prepare the timetables and work schedules
necessary to achieve this end in a timely, efficient and cost-effective manner and will
coordinate and monitor the activities of all parties engaged in the financing transaction.
4. Review the Reoffering Memorandum.
a. Generally, SEC, MSRB, and GFOA guidelines encourage full disclosure so
that potential investors have sufficient data to analyze each proposed
financing. Upon direction of the City, the Consultant shall take the lead in
preparation of the reoffering memorandum or official statement for each debt
issue relating to the Project to insure that the City's reoffering memorandum
I
or official statement is compiled in a manner consistent with industry
standards,typically including the following matters:
I
• Legal Authority for the Financing
• Security for the Financing
• Restrictions on Additional Financings
• Purpose and Funds for which the Financing is Being Issued
• Governmental System
• Financial Management System
• Revenue Sources: Historic,Current and Projected
• Outstanding Financings
• Planned Future Financings
• Labor Relations and Retirement Systems
• Economic Base
• Annual Financial Statements
• Legal Opinions Regarding Tax Exemption
CITY OF DIAMOND BAR/FIELDMAN,ROLAPP&ASSOCIATES Exhibit A,Page 2
Project No.11162
FRA 129534
• Such Other Matters as the Context May Require.
b. The Consultant shall maintain and update the reoffering memorandum or the
official statement on its word processing system until such time as it is near
final and suitable for transfer to the financial printer, in order to minimize the
costs of revisions made by the printer.
5. Procure and Coordinate Additional Service Providers.
Should the City desire, the Consultant may act as City's representative in procuring the
services of financial printers for the reoffering memorandum or official statement and
related documents, and for the printing of any securities. In addition,the Consultant may
act as the City's representative in procuring the services of trustees, paying agents, fiscal
agents, feasibility consultants,underwriters, or other professionals, if the City directs.
6. Provide Financial Advice to the City Relating;to Financing Documents.
Simultaneous with assisting in the preparation of reoffering memorandums or official
statements for each debt issue relating to the Project, the Consultant shall assist the
managing underwriters, bond counsel and/or other legal advisors in the drafting of the
respective financing resolutions, notices and other legal documents. In this regard, the
Consultant shall monitor document preparation for a consistent and accurate presentation
of the recommended business terms and financing structure of each debt issue relating to
the Project, it being specifically understood however that the Consultant's services shall
in no manner be construed as the Consultant engaging in the practice of law.
7. Compute Sizing and Design Structure of Debt Issue.
The Consultant shall work with the City's staff to design a financing structure for each
debt issue relating to the Project that is consistent with the City's objectives, that
coordinates each transaction with outstanding issues and that reflects current conditions
in the capital markets.
8. Plan and Schedule Rating Agena Presentation and Investor Briefings.
The Consultant shall develop a plan for presenting the financing program to the rating
agencies and the investor community. The Consultant shall schedule rating agency visits,
if appropriate,to assure the appropriate and most knowledgeable rating agency personnel
are available for the presentation and will develop presentation materials and assist the
City officials in preparing for the presentations.
9. Conduct Credit Enhancement Evaluation and Procurement.
Upon the City's direction, the Consultant will initiate discussions with bond insurers,
letter of credit providers and vendors of other forms of credit enhancements to determine
the availability of and cost benefit of securing financing credit support.
CITY OF DIAMOND BAR/FIELDMAN,ROLAPP&ASSOCIATES Exhibit A,Page 3
Project No.11162
FRA 129534
10. Conduct Market Analysis and Evaluate Timing of Market Entry.
The Consultant shall provide regular summaries of current municipal market conditions,
trends in the market and how these may favorably or unfavorably affect the City's
proposed financing.
a. Competitive Sales.
For all types of competitive sale of debt, the Consultant shall undertake such
activities as are generally required for sale of securities by competitive bid
including,but not limited to the following:
• Review and comment on terms of Notice of Sale Inviting Bids
• Provide advice on debt sale scheduling
• Provide advice on the use of electronic bidding systems
• Coordinate bid opening with the City officials
• Verify bids received and make recommendations for acceptance
• Provide confirmation of issue sizing, based upon actual bids received,
where appropriate
• Coordinate closing arrangements with the successful bidder(s)
b. Negotiated Sales.
In the case of a negotiated sale of debt, the Consultant shall perform a thorough
evaluation of market conditions preceding the negotiation of the terms of the sale
of debt and will assist the City with the negotiation of final issue structure,
interest rates, interest cost, reoffering terms and gross underwriting spread and
provide a recommendation on acceptance or rejection of the offer to purchase the
debt. This assistance and evaluation will focus on the following areas as
determinants of interest cost:
• Size of financing
• Sources and uses of funds
• Terms and maturities of the debt issue
• Review of the rating in pricing of the debt issue
• Investment of debt issue proceeds
• Distribution mix among institutional and retail purchasers
• Interest rate,reoffering terms and underwriting discount with comparable
issues
• Redemption provisions
11. Recommend Award of Debt Issuance.
Based upon activities outlined in Task 10(a) and 10(b) above, the Consultant will
recommend accepting or rejecting offers to purchase the debt issue. If the City elects
to award the debt issue, the Consultant will instruct all parties and help facilitate the
actions required to formally consummate the award.
CITY OF DIAMOND BAR/FIELDMAN,ROLAPP&ASSOCIATES Exhibit A,Page 4
Project No.11162
FRA. 129534
I
12. Provide Pre-Closing and Closing Activities.
The Consultant shall assist in arranging for the closing of each financing. The
Consultant shall assist counsel in assuming responsibility for such arrangements as
they are required, including arranging for or monitoring the progress of bond
printing, qualification of issues for book-entry status, signing and final delivery of the
securities and settlement of the costs of issuance.
i
CITY OF DIAMOND BAR/HELDMAN,ROLAPP&ASSOCIATES Exhibit A,Page 5
Project No.11162
FRA 129534
EX MIT B
TO
FINANCIAL ADVISORY SERVICES AGREEMENT
BY AND BETWEEN
THE CITY OF DIAMOND BAR
AND
FIELDMAN,ROLAPP&ASSOCIATES
Fees and Expenses
Part 1: Fee for Services
Financial Advisory Services performed pursuant to Section 1 of this Agreement, and as more
fully described in the Scope of Services set forth in Exhibit A,will be billed for at the amounts set
forth below:
Transaction Size Fees
$1 to $15,000,000 $33,000
Payment of fees earned by Consultant pursuant to this Part 1 shall be contingent on, and payable
at the closing of the debt issue(s)undertaken to finance the Project.
Part 2: Other Services
Unless agreed to otherwise, financial advisory services performed pursuant to Section 2 of this
Agreement will be billed at the then current hourly rates. The table below reflects the rates in
effect as of the date of execution of this Agreement.
Personnel Hourly Rate
Executive Officers............................................................$300.00
Principals..........................................................................$290.00
Senior Vice President........................................................$275.00
Vice Presidents .................................................................$225.00
Assistant Vice President..................... $
.............................. 195.00
SeniorAssociate...............................................................$150.00
Associate...........................................................................$125.00
Analyst................................................................................$85.00
Administrative Assistants...................................................$65.00
Clerical................................................................................$35.00
Expenses
Expenses will be billed for separately and will cover, among other things, travel, lodging,
subsistence, overnight courier, electronic posting of documents, computer, and fax transmission
charges, and will be capped at $2,000. Advances made on behalf of the City for costs of
preparing, printing or. distributing disclosure materials or related matter whether by postal
services or electronic means,may also be billed through to the City upon prior authorization.
CITY OF DIAMOND BAR/HELDMAN,ROLAPP&ASSOCIATES Exhibit B,Page I
Project No.11162
FRA 129534
Limiting Terms and Conditions
The above fee is based on completion of work orders within nine months of the City's
authorization to proceed, and assumes that the City will provide all necessary information in a
timely manner.
The fee shown above in Part 1 presumes attendance at up to 8 meetings in the City's offices or
such other location within a 25-mile radius of the City place of business as the City may
designate. Preparation for, and attendance at City Council meetings on any basis other than "by
appointment" may be charged at our normal hourly rates as shown in Part 2,above.
Abandonment
If,once commenced,the services of the Consultant are terminated prior to completion of our final
j report for any reason, we are to be reimbursed for professional services and direct expenses
incurred up to the time we receive notification of such termination at the standard hourly rates
shown in Part 2, subject to a minimum charge of$0.
CITY OF DIAMOND BAR/HELDMAN,ROLAPP&ASSOCIATES Exhibit B,Page 2
Project No.11162
FRA 129534
Stradling Yocca Carlson&Rauth
Draft of9/26/11
CONTINUING DISCLOSURE CERTIFICATE
This Continuing Disclosure Certificate (the "Disclosure Certificate") is executed and
delivered by the City of Diamond Bar (the "City") in connection with the $11,885,000 City of
Diamond Bar Public Financing Authority Fixed Rate Lease Revenue Bonds, 2002 Series A (the
"Bonds"). The Bonds were issued pursuant to an Indenture, dated as of December 1, 2002 (the
"Indenture"), by and between the City of Diamond Bar Public Financing Authority (the "Authority")
and Union Bank, N.A., formerly known as Union Bank of California, N.A., as trustee. The City
covenants and agrees as follows:
1. Purpose of this Disclosure Certificate. This Disclosure Certificate is being executed
and delivered by the City for the benefit of the Holders and Beneficial Owners of the Bonds and in
order to assist the Participating Underwriter in complying with the Rule.
2. Definitions. In addition to the definitions set forth in the Indenture, which apply to
any capitalized term used in this Disclosure Certificate unless otherwise defined in this Section, the
following capitalized terms shall have the following meanings:
Annual Report. The term "Annual Report" means any Annual Report provided by the City
pursuant to,and as described in, Sections 3 and 4 of this Disclosure Certificate.
Beneficial Owner. The term `Beneficial Owner"means any person which: (a)has the power,
directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds
(including persons holding Bonds through nominees, depositories or other intermediaries); or (b) is
treated as the owner of any Bonds for federal income tax purposes.
EMMA. The term"EMMA"means the Municipal Securities Rulemaking Board's Electronic
Municipal Market Access System for municipal securities disclosures, maintained on the Internet at
http://emma.msrb.org/.
Fiscal Year. The term "Fiscal Year" means the one-year period ending on the last day of
June of each year.
Holder. The term"Holder"means a registered owner of the Bonds.
Listed Events. The term"Listed Events"means any of the events listed in Sections 5(a)and
(b)of this Disclosure Certificate.
Participating Underwriter. The term "Participating Underwriter" means the original
underwriters of the Bonds required to comply with the Rule in connection with offering of the Bonds.
Reoffering Memorandum. The term "Reoffering Memorandum" means the Reoffering
Memorandum dated November ,2011 delivered in connection with the issuance of the Bonds.
Rule. The term "Rule" means Rule 15c2-12 adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same maybe amended from time to
time.
DOCSOC/1516310v2/024168-0005
3. Provision of Annual Reports.
(a) The City shall provide not later than 270 days following the end of its Fiscal
Year (commencing with Fiscal Year 2011)to EMMA an Annual Report relating to the immediately
preceding Fiscal Year which is consistent with the requirements of Section 4 of this Disclosure
Certificate, which Annual Report may be submitted as a single document or as separate documents
comprising a package, and may cross-reference other information as provided in Section 4 of this
Disclosure Certificate.
(b) If the City is unable to provide to EMMA an Annual Report by the date
required in subsection (a), the City shall send to EMMA a notice in substantially the manner
prescribed by the Municipal Securities Rulemaking Board.
4. Content of Annual Reports. The Annual Report shall contain or incorporate by
reference the following:
(a) The audited financial statements of the City for the prior Fiscal Year,
prepared in accordance with generally accepted accounting principles as promulgated to apply to
governmental entities from time to time by the Governmental Accounting Standards Board. If the
City's audited financial statements are not available by the time the Annual Report is required to be
filed pursuant to Section 3(a), the Annual Report shall contain unaudited financial statements in a
format similar to the financial statements contained in the final Reoffering Memorandum, and the
audited financial statements shall be filed in the same manner as the Annual Report when they
become available.
(b) Principal amount of the Bonds outstanding.
(c) An update of the information in Tables 1, 2 and 3 under the caption entitled
"CITY FINANCIAL INFORMATION" in the Reoffering Memorandum:
Any or all of the items listed above may be included by specific reference to other
documents, including official statements of debt issues of the City or related public entities, which
have been submitted to EMMA or the Securities and Exchange Commission; provided that if any
document included by reference is a final official statement, it must be available from the Municipal
Securities Rulemaking Board; and provided further that the City shall clearly identify each such
document so included by reference.
5. Reporting of Significant Events.
(a) Pursuant to the provisions of this Section 5,the City shall give, or cause to be
given, notice of the occurrence of any of the following events with respect to the Bonds in a timely
manner not more than ten(10)Business Days after the event:
1. principal and interest payment delinquencies;
2. unscheduled draws on debt service reserves reflecting financial
difficulties;
3. unscheduled draws on credit enhancements reflecting financial
difficulties;
2
DOCSOC/1516310v2/024168-0005
4. substitution of credit or liquidity providers, or their failure to perform;
5. issuance by the Internal Revenue Service of proposed or final
determination of taxability or of a Notice of Proposed Issue(IRS Form 5701-TEB);
6. tender offers;
7. defeasances;
8. ratings changes; and
9. bankruptcy, insolvency,receivership or similar proceedings.
Note: For the purposes of the event identified in subparagraph(9), the event is considered to
occur when any of the following occur: the appointment of a receiver, fiscal agent or similar officer
for an obligated person in a proceeding under the U.S. Bankruptcy Code or in any other proceeding
under state or federal law in which a court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of the obligated person, or if such jurisdiction has been
assumed by leaving the existing governmental body and officials or officers in possession but subject
to the supervision and orders of a court or governmental authority, or the entry of an order
confirming a plan of reorganization, arrangement or liquidation by a court or governmental authority
having supervision or jurisdiction over substantially all of the assets or business of the obligated
person.
(b) Pursuant to the provisions of this Section 5,the City shall give, or cause to be
given, notice of the occurrence of any of the following events with respect to the Bonds, if material:
1. unless described in Section 5(a)(5), adverse tax opinions or other
material notices or determinations by the Internal Revenue Service with respect to the tax status of
the Bonds or other material events affecting the tax status of the Bonds;
2. modifications to the rights of Bondholders;
3. optional,unscheduled or contingent Bond calls;
4. release, substitution or sale of property securing repayment of the
Bonds;
5. non-payment related defaults;
6. the consummation of a merger, consolidation, or acquisition involving
the City or the sale of all or substantially all of the assets of the City, other than in the ordinary
course of business, the entry into a definitive agreement to undertake such an action or the
termination of a definitive agreement relating to any such actions, other than pursuant to its terms;
and
7. appointment of a successor or additional trustee or the change of the
name of a trustee.
(c) If the City determines that knowledge of the occurrence of a Listed Event
3
DOCSOC/151631 Ov2/024168-0005
under Section 5(b) would be material under applicable federal securities laws, the City shall file a
notice of such occurrence with EMMA in a timely manner not more than ten (10) Business Days
after the event.
6. Customarily Prepared and Public Information. Upon request, the City shall provide
to any person financial information and operating data regarding the City which is customarily
prepared by the City and is publicly available.
7. Termination of Obligation.e The City's obligations under this Disclosure Certificate
shall terminate upon the legal defeasance,prior redemption or payment in full of all of the Bonds. If
such termination occurs prior to the final maturity of the Bonds, the City shall give notice of such
termination in the same manner as for a Listed Event under Section 5(c).
8. Amendment; Waiver. Notwithstanding any other provision of this Disclosure
Certificate, the City may amend this Disclosure Certificate, and any provision of this Disclosure
Certificate may be waived,provided that, in the opinion of nationally recognized bond counsel, such
amendment or waiver is permitted by the Rule.
9. Additional Information. Nothing in this Disclosure Certificate shall be deemed to
prevent the City from disseminating any other information, using the means of dissemination set
forth in this Disclosure Certificate or any other means of communication, or including any other
information in any notice of occurrence of a Listed Event, in addition to that which is required by this
Disclosure Certificate. If the City chooses to include any information in any notice of occurrence of
a Listed Event in addition to that which is specifically required by this Disclosure Certificate, the
City shall not thereby have any obligation under this Disclosure Certificate to update such
information or include it in any future notice of occurrence of a Listed Event.
10. Default. In the event of a failure of the City to comply with any provision of this
Disclosure Certificate, any Holders or Beneficial Owners of at least 50%aggregate principal amount
of the Bonds may take such actions as may be necessary and appropriate, including seeking mandate
or specific performance by court order, to cause the City to comply with its obligations under this
Disclosure Certificate. A default under this Disclosure Certificate shall not be deemed an Event of
Default under the Indenture, and the sole remedy under this Disclosure Certificate in the event of any
failure of the City to comply with this Disclosure Certificate shall be an action to compel
performance.
No Holder or Beneficial Owner of the Bonds may institute such action, suit or proceeding to
compel performance unless they shall have first delivered to the City satisfactory written evidence of
their status as such, and a written notice of and request to cure such failure, and the City shall have
refused to comply therewith within a reasonable time.
11. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of the City,
the Authority,the Participating Underwriter and Holders and Beneficial Owners from time to time of
the Bonds, and shall create no rights in any other person or entity.
Dated: December 1,2011 CITY OF DIAMOND BAR
By:
CITY MANAGER
4
DOCSOC/1516310v2/024168-0005
Agenda No. PFA 3 . 1 (a)
DIAMOND BAR PUBLIC FINANCING AUTHORITY
ANNUAL MEETING
DECEMBER 7, 2010
1 CALL TO ORDER: Chairman Tye called the meeting to order at
10:50 p.m. in the South Coast Air Quality Management District/Government
Center Auditorium, 21865 Copley Dr., Diamond Bar, CA.
ROLL CALL: Authority Members Chang, Herrera, Tanaka,
VC/Everett, Chair/Tye
Staff present: James DeStefano, Executive Director; Michael
Jenkins, Authority Attorney; David Doyle, Assistant City Manager; Ken
Desforges, IS Director; David Liu, Public Works Director; Bob Rose, Community
Services Director, Linda Magnuson, Finance Director; Greg Gubman, Community
Development Director; Ryan McLean, Assistant to the City Manager; and,
Tommye Cribbins, Agency Clerk.
2. PUBLIC COMMENTS: None Offered.
3. CONSENT CALENDAR:
AM/Herrera moved, AM/Chang seconded, to approve the Consent Calendar as
presented. Motion carried by the following Roll Call vote:
AYES: AUTHORITY MEMBERS: Chang, Herrera, Tanaka, VC/Everett,
Chair/Tye
NOES: AUTHORITY MEMBERS: None
ABSENT: AUTHORITY MEMBERS: None
3.1 APPROVED MINUTES — Meeting of December 1, 2009 as submitted.
3.2 APPROVED TREASURER'S STATEMENT — November 1, 2009 through
October 31, 2010.
4. PUBLIC FINANCING AUTHORITY REORGANIZATION:
4.1 Selection of Chair
AM/Herrera nominated VC/Everett to serve as Chairman of the Public
Financing Authority. With no further nominations offered, VC/Everett was
declared by acclamation Chairman of the Public Financing Authority.
4.2 Selection of Vice Chair
AM/Tanaka nominated AM/Chang to serve as Vice Chair. With no further
nominations offered, AM/Chang was declared by acclamation Vice
Chairman of the Public Finance Authority.
5. AUTHORITY MEMBER CONSIDERATION: None
DECEMBER 7, 2010 PAGE 2 PUBLIC FINANCE AUTHORITY
6. AUTHORITY MEMBER COMMENTS: None
ADJOURN PUBLIC FINANCING AUTHORITY MEETING: With no further business to
conduct, Chair/Everett adjourned the Public Financing Authority meeting at 10:52 p.m.
back to the Regular City Council meeting.
TOMMYE CRIBBINS, Authority Clerk
ATTEST:
RON EVERETT, Chairperson
PFA 3 . 1 (b)
DIAMOND BAR PUBLIC FINANCING AUTHORITY
SPECIAL MEETING
OCTOBER 4, 2011 i H
1. CALL TO ORDER: Chairman Everett called the meeting to order
at 7:03 p.m. in the South Coast Air Quality Management District/Government
Center Auditorium, 21865 Copley Dr., Diamond Bar, CA.
ROLL CALL: Authority Members Tanaka, VC/Chang,
Chair/Everett
Absent: Authority Members Herrera and Tye were
excused.
Staff present: James DeStefano, City Manager; David Doyle,
Assistant City Manager; Michael Jenkins, City Attorney; Ken Desforges, IT
Director; David Liu, Public Works Director; Bob Rose, Community Services
Director; Greg Gubman, Community Development Director; Ryan McLean,
Assistant to the City Manager; Rick Yee, Senior Civil Engineer; Kimberly Young,
Associate Engineer; Lauren Hidalgo, Public Information Specialist, and Tommye
Cribbins, City Clerk.
2. PUBLIC COMMENTS: None Offered.
3. CONSENT CALENDAR:
3.1 ADOPT RESOLUTION NO. PFA-01: ESTABLISHING REGULAR
MEETING DATES
CM/DeStefano stated that by adopting this Resolution the Authority would
be allowed to hold two additional meetings per year. This request came
about as a result of a previous City Council meeting when the City Council
authorized staff to begin the necessary steps to convert the Diamond Bar
Center's bond that was issued in 2002 from its variable rate structure to a
fixed rate structure which staff is in the process of implementing. One of
the components is that it is necessary for the Authority to take action on
that matter at an upcoming meeting which is likely to take place later this
month or early November. Since the Public Financing Authority's only
regularly scheduled meeting is in December, this Resolution would allow
the Public Financing Authority to conduct two additional meetings in 2011,
if necessary (October 18 and November 1) in order to allow the Authority
the opportunity to discuss and make decisions on the bond issuance
matter as necessary.
AM/Tanaka moved, AM/Chang seconded, to adopt Resolution No. PFA-
01: Establishing Regular Diamond Bar Public Financing Authority
meetings. Motion carried by the following Roll Call vote:
OCTOBER 4, 2011 PAGE 2 PUBLIC FINANCE AUTHORITY
AYES: AUTHORITY MEMBERS: Tanaka, VC/Chang, Chair/Everett
NOES: AUTHORITY MEMBERS: None
ABSENT: AUTHORITY MEMBERS: Herrera, Tye
4. AUTHORITY MEMBER CONSIDERATION: None
5. AUTHORITY MEMBER COMMENTS: None
ADJOURN PUBLIC FINANCING AUTHORITY MEETING:
With no further business to conduct, Chair/Everett adjourned the Public Financing
Authority meeting at 7:06 p.m. back to the Regular City Council meeting.
TOMMYE CRIBBINS, Authority Clerk
RON EVERETT, Chairperson
STUDY SESSION DOCUMENTATION:
Please refer to City Council Item 8.1 and Public Financing Authority Item PFA 4.1
Agenda # -PFA 4. 1
Meeting Date: October 18, 2011
OF
PUBLIC FINANCING AUTHORITY AGENDA REPORT
TO: Honorable Chair and Members of the Public Financing Authority
VIA: James DeStefano, Executive Dir
TITLE: Approval of documents relating tto� onfverslon of the variable interest
rate to a fixed rate with respect to the City of Diamond Bar Public
Financing Authority Variable Rate Lease Revenue Bonds, Series
2002A, and authorizing and directing certain actions in connection
therewith.
RECOMMENDATION:
Adopt.
FISCAL IMPACT:
The "average" interest rate on the Bonds since issuance is approximately 1.77%;
however the average "all in" cost on the Bonds through 6/30/11 (including all bank,
remarketing and interest rate cap fees) is approximately 3.10%. Conversion to fixed
rate will initially result in higher annual all in costs than the current variable rate.
However, long term rates are extremely attractive and are at or close to historic lows.
Conversion to a fixed rate provides budget certainty and eliminates interest rate risk and
volatility. It also eliminates renewal risk on future Bank letters of credit I required to
remarket variable interest rate Bonds. The costs to convert to a fixed rate will be paid
out of remarketing proceeds. These costs are estimated not to exceed $150,000.
BACKGROUND:
At the August 16, 2011 Study Session City Council discussed the policy decision of
whether to keep the Bonds issued in December of 2002 to finance the Diamond Bar
Center in a variable rate mode supported by the direct-pay letter of credit issued by
Union Bank or to do a fixed rate conversion of the Bonds. City Staff and the City's
Financial Advisor, Fieldman, Rolapp & Associates, Inc., provided the City Council with
the background of the performance of the Bonds since 2002 and the costs associated
with renewing the direct-pay letter of credit compared to the projected costs of doing a
fixed rate conversion of the Bonds. The City Council was also provided an overview of
the potential changes that will be implemented in 2015 due to new financial regulations
and the impact it will have on new Letters of Credit in the future and an overview of the
near historic low in long-term fixed interest rates. Based upon the information
presented and the recommendation of City Staff and its Financial Advisor, the City
Council directed staff to proceed with a fixed rate conversion of the Bonds in order to
lock in the low fixed interest rates and eliminate the City's exposure to variable rate and
the uncertainty of securing a direct-pay letter of credit in the future.
DISCUSSION:
The Public Financing Authority staff report, resolution, and accompanying documents
are very similar to the Council Item 8.1 as required for the conversion of the fixed rate
Bonds. The only substantive difference is the Public Financing Authority is approving
Amendment No. 1 to Indenture, which modifies the annual Bond payment date.
Approval of the Resolution 2011-XX will authorize City Officials to take the necessary
actions to convert the current variable interest rate on the Bonds to a fixed rate. The
Resolution approves the form of a Remarketing Agreement by and among the City, the
Diamond Bar Public Financing Authority and a Remarketing Agent to be designated by
the City Manager. Pursuant to the Remarketing Agreement, the Remarketing Agent will
price and sell the Bonds at a fixed rate and deliver funds to pay off the Union Bank
Letter of Credit in full on the mandatory tender date for the variable rate Bonds on
December 1, 2011. The Resolution also approves the form of a Preliminary Reoffering
Memorandum pursuant to which the Bonds will be marketed to potential investors. The
Preliminary Reoffering Memorandum describes the terms of the fixed rate Bonds, the
sources of payment for the Bonds and the City's General Fund. The Preliminary
Reoffering Memorandum is subject to the antifraud provisions of the federal securities
laws and Council Members are encouraged to review it and notify staff of any
inaccuracies or omissions of material facts related to the City and its finances.
Additionally, the Resolution approves Amendment No.1 to the Lease Agreement.
The Public Financing Authority Resolution also approves Amendment No. 1 to
Indenture, which modifies the Bond payment date from July 1st to December 1st and
eliminates the requirement for a reserve account. If the annual Bond payment date had
remained July 1st, the City would have been required to fund a reserve account setting
aside up to 10% of the bond proceeds to guarantee the annual Bond payment.
As mentioned above, the variable rate bonds are subject to mandatory tender on
December 1, 2011. It is anticipated that the fixed rate bonds would be sold in early to
mid November and close on December 1, 2011. At that time the existing LOC with
Union Bank would terminate and the City would pay fixed annual lease payments.
PREPARED BY:
0M )
'
David Doyle, As is City Manager
Attachments:
1. PFA Resolution 2011-XX authorizing the execution and delivery of documents
relating to conversion of the interest rate to a fixed rate with respect to the City of
Diamond Bar Public Financing Authority Variable Rate Lease Revenue Bonds,
Series 2002A, and authorizing and directing certain actions in connection therewith.
2. Remarketing Agreement.'
3. Preliminary Reoffering Memorandum.'
4. Amendment No. 1 to Lease Agreement.'
5. Amendment No. 1 to Indenture.
"Refer to Council Consideration Item 8.1 For Attachments
RESOLUTION NO. PFA 2011-XX
RESOLUTION OF THE CITY OF DIAMOND BAR PUBLIC
FINANCING AUTHORITY APPROVING THE EXECUTION AND
DELIVERY' OF DOCUMENTS IN CONNECTION WITH THE
CONVERSION OF THE INTEREST RATE TO A FIXED RATE
WITH RESPECT TO THE CITY OF DIAMOND BAR PUBLIC
FINANCING AUTHORITY VARIABLE RATE LEASE REVENUE
BONDS, 2002 SERIES A, AND AUTHORIZING AND
DIRECTING CERTAIN ACTIONS IN CONNECTION
THEREWITH
The Board of Directors of the City of Diamond Bar Public Financing Authority does hereby
find, order and resolve as follows:
SECTION 1. Recitals.
A. The City of Diamond Bar Public Financing Authority (the "Authority") is a joint
exercise of powers agency with the authority to assist in the financing of capital improvements on
behalf of the City of Diamond Bar(the "City").
B. The Authority has assisted the City to finance a community/senior center and other
public improvements in the City through the issuance of the $13,755,000 City of Diamond Bar
Public Financing Authority Variable Rate Lease Revenue Bonds, 2002 Series A (the "Bonds")
pursuant to that certain Indenture, dated as of December 1, 2002 (the "Indenture"), by and between
the Authority and Union Bank, N.A., formerly known as Union Bank of California, N.A., as trustee
(the "Trustee").
C. The Bonds were originally issued on December 19, 2002 in the aggregate principal
amount of$13,755,000. Since the date of their initial issuance, the Bonds have borne interest at a
Weekly Rate (as such term is defined in the Indenture) and the regularly scheduled payments of
principal and interest on the Bonds have been payable from the proceeds of draws upon an
irrevocable direct-pay letter of credit issued by Union Bank,N.A., formerly known as Union Bank of
California,N.A. (the"Letter of Credit").
D. The City has detennined that it is in the best interest of the City: (i) to convert the
interest rate on the Bonds to a Fixed Rate (as such tern is defined in the Indenture) on December 1,
2011 in accordance with the provisions of the Indenture; and (ii) to terminate the Letter of Credit on
December 1, 2011 in accordance with the provisions of the Indenture and the Reimbursement
Agreement(as such term is defined in the Indenture).
E. The forms of the documents necessary to accomplish the conversion of the interest
rate on the Bonds to a Fixed Rate and the termination of the Letter of Credit are on file with the
Secretary of the Authority as described herein.
SECTION 2. Remarketing Agreement. The Remarketing Agreement, by and among the
City, the Authority and E.J. De La Rosa & Co., Inc., as remarketing agent (the "Remarketing
Agent"), presented at this meeting is approved. Each of the Chair, Vice Chair, Treasurer, Assistant
Treasurer and Secretary of the Authority, or the Chair's designee (the "Authorized Officers"), are
authorized and directed to execute and deliver the Remarketing Agreement in substantially the form
hereby approved, with such additions thereto and changes therein as are recommended or approved
by counsel to the Authority and approved by the officer or officers of the Authority executing the
Remarketing Agreement, such approval to be conclusively evidenced by the execution and delivery
thereof by one or more of the officers listed above; provided that: (i) the aggregate true interest cost
of the Bonds shall not exceed 6.0% after conversion to a Fixed Rate; and (ii) the fee payable to the
Remarketing Agent under the Remarketing Agreement shall not exceed 0.6% of the outstanding
aggregate principal amount of the Bonds.
SECTION 3. Preliminary Reoffering Memorandum. The form of the Preliminary Reoffering
Memorandum presented at this meeting is hereby approved. The Authorized Officers are hereby
authorized to make such changes to the Preliminary Reoffering Memorandum as are necessary to
make it final as of its date and are authorized and directed to execute and deliver a certificate
deeming the Preliminary Reoffering Memorandum final as of its date in accordance with Rule
15c2-12 promulgated under the Securities Exchange Act of 1934. Each of the Authorized Officers is
hereby authorized and directed to execute, approve and deliver the final Reoffering Memorandum in
the form of the Preliminary Reoffering Memorandum with such changes, insertions and omissions as
the Authorized Officer or Officers executing said document may require or approve, such approval to
be conclusively evidenced by the execution and delivery thereof by one or more of such Authorized
Officers.
SECTION 4. Amendments. Each of the Authorized Officers is hereby authorized and
directed to execute and deliver an Amended and Restated Lease Agreement or an Amendment No. 1
to Lease Agreement and an Amended and Restated Indenture or an Amendment No. 1 to Indenture,
with such changes, insertions and omissions as may be required to implement the conversion of the
interest rate on the Bonds to a Fixed Rate and the termination of the Letter of Credit and to address
comments received from the credit rating agencies in connection therewith.
SECTION 5. Other Actions. The Authorized Officers are authorized and directed, jointly
and severally, to do any and all things and to execute and deliver any and all documents which they
may deem necessary or advisable in order to consummate the conversion of the interest rate on the
Bonds to a Fixed Rate and the termination of the Letter of Credit, and the execution of the
Remarketing Agreement and otherwise effectuate the purposes of this Resolution, including but not
limited to amendments or supplements to the Site Lease, dated as of December 1, 2002, by and
between the Authority and the City. Such actions previously taken by such officers are hereby
ratified and confirmed.
SECTION 6. Effect. This Resolution shall take effect from and after its date of adoption.
PASSED, APPROVED AND ADOPTED on October 18, 2011.
Ron Everett, Chairman
I, Tommye A. Cribbins, Secretary of the Diamond Bar Public Financing Authority of the
City of Diamond Bar, California, do hereby certify that the foregoing was duly and regularly Passed
and Adopted by the Public Financing Authority of the City of Diamond Bar, California, at its
adjourned regular meeting held on the 18th day of October, 2011,by the following vote, to wit:
AYES: AUTHORITYMEMBERS:
NOES: AUTHORITYMEMBERS:
ABSENT: AUTHORITYMEMBERS:
ABSTAIN: AUTHORITYMEMBERS:
ATTEST:
i
Tommye Cribbins, Secretary
RESOLUTION NO. PFA 2011-XX
RESOLUTION OF THE CITY OF DIAMOND BAR PUBLIC
FINANCING AUTHORITY APPROVING THE EXECUTION AND
DELIVERY OF DOCUMENTS IN CONNECTION WITH THE
CONVERSION OF THE INTEREST RATE TO A FIXED RATE
WITH RESPECT TO THE CITY OF DIAMOND BAR PUBLIC
FINANCING AUTHORITY VARIABLE RATE LEASE REVENUE
BONDS, 2002 SERIES A, AND AUTHORIZING AND
DIRECTING CERTAIN ACTIONS IN CONNECTION
THEREWITH
The Board of Directors of the City of Diamond Bar Public Financing Authority does hereby
find, order and resolve as follows:
SECTION 1. Recitals.
A. The City of*Diamond Bar Public Financing Authority (the "Authority") is a joint
exercise of powers agency with the authority to assist in the financing of capital improvements on
behalf of the City of Diamond Bar(the"City").
B. The Authority has assisted the City to finance a community/senior center and other
public improvements in the City through the issuance of the $13,755,000 City of Diamond Bar
Public Financing Authority Variable Rate Lease Revenue Bonds, 2002 Series A (the "Bonds")
pursuant to that certain Indenture, dated as of December 1, 2002 (the "Indenture"), by and between
the Authority and Union Bank, N.A., formerly known as Union Bank of California, N.A., as trustee
(the "Trustee").
C. The Bonds were originally issued on December 19, 2002 in the aggregate principal
amount of$13,755,000. Since the date of their initial issuance, the Bonds have borne interest at a
Weekly Rate (as such teirn is defined in the Indenture) and the regularly scheduled payments of
principal and interest on the Bonds have been payable from the proceeds of draws upon an
irrevocable direct-pay letter of credit issued by Union Bank,N.A., formerly known as Union Bank of
California,N.A. (the"Letter of Credit").
D. The City has determined that it is in the best interest of the City: (i) to convert the
interest rate on the Bonds to a Fixed Rate (as such term is defined in the Indenture) on December 1,
2011 in accordance with the provisions of the Indenture; and (ii) to terminate the Letter of Credit on
December 1, 2011 in accordance with the provisions of the Indenture and the Reimbursement
Agreement(as such term is defined in the Indenture).
E. The forms of the documents necessary to accomplish the conversion of the interest
rate on the Bonds to a Fixed Rate and the termination of the Letter of Credit are on file with the
Secretary of the Authority as described herein.
SECTION 2. Remarketing Agreement. The Remarketing Agreement, by and among the
City, the Authority and E.J. De La Rosa & Co., Inc., as remarketing agent (the "Remarketing
Agent"), presented at this meeting is approved. Each of the Chair, Vice Chair, Treasurer, Assistant
Treasurer and Secretary of the Authority, or the Chair's designee (the "Authorized Officers"), are
authorized and directed to execute and deliver the Remarketing Agreement in substantially the form
hereby approved, with such additions thereto and changes therein as are recommended or approved
by counsel to the Authority and approved by the officer or officers of the Authority executing the
Remarketing Agreement, such approval to be conclusively evidenced by the execution and delivery
thereof by one or more of the officers listed above; provided that: (i) the aggregate true interest cost
of the Bonds shall not exceed 6.0% after conversion to a Fixed Rate; and (ii) the fee payable to the
Remarketing Agent under the Remarketing Agreement shall not exceed 0.6% of the outstanding
aggregate principal amount of the Bonds.
SECTION 3. Preliminary Reoffering Memorandum. The form of the Preliminary.Reoffering
Memorandum presented at this meeting is hereby approved. The Authorized Officers are hereby
authorized to make such changes to the Preliminary Reoffering Memorandum as are necessary to
make it final as of its date and are authorized and directed to execute and deliver a certificate
deeming the Preliminary Reoffering Memorandum final as of its date in accordance with Rule
15c2-12 promulgated under the Securities Exchange Act of 1934. Each of the Authorized Officers is
hereby authorized and directed to execute, approve and deliver the final Reoffering Memorandum in
the form of the Preliminary Reoffering Memorandum with such changes, insertions and omissions as
the Authorized Officer or Officers executing said document may require or approve, such approval to
be conclusively evidenced by the execution and delivery thereof by one or more of such Authorized
Officers.
SECTION 4. Amendments. Each of the Authorized Officers is hereby authorized and
directed to execute and deliver an Amended and Restated Lease Agreement or an Amendment No. 1
to Lease Agreement and an Amended and Restated Indenture or an Amendment No. 1 to Indenture,
with such Qhanges, insertions and omissions as may be required to implement the conversion of the
interest ratL on the Bonds to a Fixed Rate and the termination of the Letter of Credit and to address
comments received from the credit rating agencies in connection therewith.
SECTION 5. Other Actions. The Authorized Officers are authorized and directed, jointly
and severally, to do any and all things and to execute and deliver any and all documents which they
may deem necessary or advisable in order to consummate the conversion of the interest rate on the
Bonds to a Fixed Rate and the termination of the Letter of Credit, and the execution of the
Remarketing Agreement and otherwise effectuate the purposes of this Resolution, including but not
limited to amendments or supplements to the Site Lease, dated as of December 1, 2002, by and
between the Authority and the City. Such actions previously taken by such officers are hereby
ratified and confirmed.
SECTION 6. Effect. This Resolution shall take effect from and after its date of adoption.
PASSED,APPROVED AND ADOPTED on October 18, 2011.
Ron Everett, Chairman
I, Tommye A. Cribbins, Secretary of the Diamond Bar Public Financing Authority of the
City of Diamond Bar, California, do hereby certify that the foregoing was duly and regularly Passed
and Adopted by the Public Financing Authority of the City of Diamond Bar, California, at its
adjourned regular meeting held on the 18t" day of October, 2011,by the following vote, to wit:
AYES: AUTHORITYMEMBERS:
NOES: AUTHORITYMEMBERS:
ABSENT: AUTHORITYMEMBERS:
ABSTAIN: AUTHORITYMEMBERS:
ATTEST:
Tommye Cribbins, Secretary
Stradling Yocca Carlson&Rauth
Draft of 10/10/11
AMENDMENT NO. 1 TO INDENTURE
by and between the
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
and
UNION BANK,N.A.,
Tnistee
Dated as of December 1, 2011
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
FIXED RATE LEASE REVENUE BONDS, 2002 SERIES A
(COMMUNITY/SENIOR CENTER PROJECT)
DOCSOC/1519425v 1/024168-0005
AMENDMENT NO. 1 TO INDENTURE
This AMENDMENT NO. 1 TO INDENTURE (the "Amendment") made and entered into
as of the 1st day of December, 2002 by and between UNION BANK, N.A., a national banking
association duly organized and existing under and by virtue of the laws of the United States, formerly
known as Union Bank of California, N.A. (the "Trustee"), and the CITY OF DIAMOND BAR
PUBLIC FINANCING AUTHORITY, a public body, corporate and politic, duly organized and
existing under the laws of the State of California(the"Authority")
WITNESSETH:
WHEREAS, the Trustee and the Authority entered into the Indenture, dated as of December
1, 2002 (the "Indenture"), relating to the City of Diamond Bar Public Financing Authority Variable
Rate Lease Revenue Bonds, 2002 Series A (Connnunity/Senior Center Project) (the "Bonds"); and
WHEREAS, the Authority desires to amend the Indenture to reflect certain comments
received from S&P (as such term is defined in the Indenture) with respect to the conversion of the
interest rate on the Bonds to a Fixed Rate;
NOW, THEREFORE, IN CONSIDERATION OF THESE PREMISES AND OF THE
MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER
VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS
FOLLOWS:
SECTION 1. This Amendment hereby incorporates by reference all terms and conditions
set forth in the Indenture unless specifically modified by this Amendment. All terms and conditions
set forth in the Indenture which are not specifically modified by this Amendment shall remain in full
force and effect.
SECTION 2. The capitalized terms set forth in this Amendment not otherwise defined
herein shall Have the meanings set forth in the Indenture.
SECTION 3. Clause (b) of the definition of the term `Bond Payment Date" set forth in
Section 1.01 is hereby amended and restated in its entirety as follows:
"(b) after the Fixed Rate Conversion Date, each June 1 and
December 1 commencing on the first June 1 or December 1
which is at least 75 days after the Fixed Rate Conversion
Date."
SECTION 4. The definition of"Information Services" set forth in Section 1.01 is hereby
amended and restated in its entirety as follows:
"Information Services" means the Municipal Securities
Rulemaking Board; or, in accordance with then current
guidelines of the Securities and Exchange Commission, such
other services providing information with respect to called
bonds as the Authority may specify in a certificate to the
Trustee as the Trustee may select."
1
DOCSOC/1519425v]/024168-0005
SECTION 5. The references to "July 1" set forth in the table in Section 4.04 and the
paragraph under such table are hereby revised to "June 1."
SECTION 6. The references to "January 1" set forth in Section 4.04 are hereby revised to
"December 1."
SECTION 7. Exhibit C attached to the Indenture is hereby amended and restated in its
entirety as set forth in Exhibit 1 hereto.
SECTION 8. THIS AMENDMENT SHALL BE CONSTRUED AND GOVERNED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
SECTION 9. This Amendment shall become effective upon its execution and delivery.
SECTION 10. This Amendment may be executed in several counterparts, each of which
shall be deemed as an original, all of which shall constitute but one of the same instillment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
DOCSOC/1519425v 1/024168-0005
IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their
officers thereunto duly authorized as of the day and year first written above.
UNION BANK,N.A., as Trustee
By:
Title: Authorized Officer
CITY OF DIAMOND BAR PUBLIC FINANCING
AUTHORITY
By:
President
S-1
DOCSOC/1519425v 1/024168-0005
EXHIBIT 1
EXHIBIT C
(FORM OF FIXED RATE BOND)
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY (AS DEFINED IN THE INDENTURE) TO THE TRUSTEE FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,AND ANY BOND ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IF
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO.,HAS AN INTEREST HEREIN
No. R-1 $
CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY
FIXED RATE LEASE REVENUE BOND
2002 SERIES A
(COMMUNITY/SENIOR CENTER PROJECT)
Principal
Interest Rate Payment Date Dated Date CUSIP
June 1, 20 December 1, 2011
Registered Owner: Cede &Co.
Principal Amount:
THE CITY OF DIAMOND BAR PUBLIC FINANCING AUTHORITY, a public body
corporate and politic, duly organized and existing under the laws of the State of California (the
"Authority"), for value received, hereby promises to pay (but solely from the funds hereinafter
mentioned) to the above-referenced registered owner (the "Owner") or registered assigns subject to
the terns of the Indenture, hereinafter mentioned, and any right to redemption, the Principal Amount
stated above on the Principal Payment Date stated above upon surrender of this Bond at the corporate
office of Union Bank, N.A. (the "Trustee") in Los Angeles, California, and to pay the registered
owner by check mailed by first class mail, postage prepaid, on each Bond Payment Date to the
person whose name appears in the Bond register as the Owner thereof as of the Record Date
immediately preceding such Bond Payment Date (as each such team is hereinafter defined), interest
on the balance of said Principal Amount from time to time remaining unpaid, at the rate per annum
Exhibit 1-1
DOCSOC/1519425 v]/024168-0005
determined as hereinafter set forth, from the Bond Payment Date next preceding the date on which
this Bond is authenticated unless it is: (a) authenticated after a Record Date and on or before the next
Bond Payment Date, in which event from such Bond Payment Date; or(b) authenticated on or before
the first Record Date, in which event from the dated date set forth above; provided, however, that
interest shall be paid by wire transfer of immediately available funds to an account in the United
States of America to any registered Owner of at least $1,000,000 in aggregate principal amount of
the Bonds, at the option of such Owner, according to wire instructions given in writing to the Trustee
in accordance with procedures prescribed by the Trustee. Both principal and interest on this Bond
are payable in lawful money of the United States of America, and principal is payable upon
presentation of this Bond at the corporate office of the Trustee. The Bonds are secured in part by the
Authority's right to receive certain lease payments ("Base Rental") under and pursuant to that certain
Lease Agreement dated as of December 1, 2002 (as amended by that certain Amendment No. 1 to
Lease Agreement, dated as of December 1, 2011, the "Lease"), by and between the City of Diamond
Bar(the "City"), a municipal corporation duly organized and existing under the laws and constitution
of the State of California, as lessee, and the Authority, as lessor, all of which rights to receive such
Base Rental have been assigned without recourse pursuant to that certain Assignment Agreement
dated as of December 1, 2002, by the Authority to the Trustee under the Indenture dated as of
December 1, 2002 (as amended by that certain Amendment No. 1 to Indenture, dated as of December
1, 2011, the"Indenture"),by and between the Authority and the Trustee.
This Bond is one of a duly authorized issue of Bonds of the Authority designated as the City
of Diamond Bar Public Financing Authority Fixed Rate Lease Revenue Bonds, 2002 Series A
(Community/Senior Center Project) (the "Bonds"), all issued pursuant to and in conformity with the
Constitution and laws of the State of California and particularly the Marks-Roos Local Bond Pooling
Act of 1985 (Article 4 of Chapter 5 of Division 7 of the California Government Code, as amended)
and the Indenture.
Reference is hereby made to the Indenture for a specific description of the security therein
provided for said Bonds, for the nature, extent and manner of enforcement of such security, for the
covenants and agreements.made for the benefit of the Bondowners, and for a statement of the rights
of the Bondowners, and by the acceptance of this Bond the owner hereof assents to all of the terms,
conditions and provisions of the Indenture.
The principal of this Bond, the interest hereon and any premium payable upon redemption
hereof, are secured by an irrevocable pledge of, and are payable solely from, the Revenues (as
defined in the Indenture) and the moneys on deposit in certain other funds, all as more particularly
set forth in the Indenture.
THE OBLIGATION OF THE AUTHORITY TO PAY THE BONDS IS LIMITED TO THE
REVENUES, INCLUDING BASE RENTAL PAYABLE BY THE CITY, PLEDGED THEREFOR
PURSUANT TO THE INDENTURE AND DOES NOT CONSTITUTE AN OBLIGATION OF
THE AUTHORITY FOR WHICH THE AUTHORITY IS OBLIGATED TO LEVY OR PLEDGE
ANY FORM OF TAXATION OR FOR WHICH THE AUTHORITY HAS LEVIED OR PLEDGED
ANY FORM OF TAXATION. THE OBLIGATION OF THE AUTHORITY TO PAY THE
BONDS DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE AUTHORITY, THE STATE
OF CALIFORNIA, OR ANY OF ITS POLITICAL SUBDIVISIONS WITHIN THE MEANING OF
ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION. THE
OBLIGATION OF THE CITY TO PAY BASE RENTAL IS ABATED DURING ANY PERIOD IN
WHICH, BY REASON OF MATERIAL DAMAGE, DESTRUCTION OR CONDEMNATION,
Exhibit 1-2
DOCSOC/15 l 9425v 1/024168-0005
THERE IS SUBSTANTIAL INTERFERENCE WITH THE USE AND RIGHT OF POSSESSION
BY THE CITY OF THE LEASED PROPERTY. FAILURE OF THE CITY TO PAY BASE
RENTAL DURING ANY SUCH PERIOD SHALL NOT CONSTITUTE A DEFAULT UNDER
THE LEASE, THE INDENTURE OR THIS BOND.
THE OBLIGATION OF THE CITY TO PAY BASE RENTAL DOES NOT CONSTITUTE
AN OBLIGATION OF THE CITY FOR WHICH THE CITY IS OBLIGATED TO LEVY OR
PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE CITY HAS LEVIED OR
PLEDGED ANY FORM OF TAXATION. THE OBLIGATION OF THE CITY TO PAY BASE
RENTAL DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY, THE STATE OF
CALIFORNIA, OR ANY OF ITS POLITICAL SUBDIVISIONS WITHIN THE MEANING OF
ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION.
The Owner of this Bond is entitled to receive, subject to the terms of the Indenture and any
right of payment, redemption or purchase hereinafter provided for: (i) on the Principal Payment Date
set forth above, upon surrender of this Bond at the corporate office of the Trustee, the Principal
Amount specified above on the Principal Payment Date specified above or upon earlier redemption;
and (ii)by check mailed by first class mail, postage prepaid, on each interest payment date to the
person whose name appears in the Bond register as the Owner thereof as of the Record Date
immediately preceding such Bond Payment Date (as each such term is hereinafter defined), interest
on the balance of said Principal Amount from time to time remaining unpaid, at the rate per annum
determined as hereinafter set forth, from the Bond Payment Date next preceding the date on which
this Bond is authenticated unless it is: (a)authenticated after a Record Date and on or before the next
Bond Payment Date, in which event from such Bond Payment Date; or (b) authenticated on the first
Record Date, in which event from the dated date set forth above; provided, however, that interest
shall be paid by wire transfer of immediately available funds to any registered Owner of at least
$1,000,000 in aggregate principal amount of the Bonds, at the option of such Owner, according to
wire instructions given in writing to the Trustee in accordance with procedures prescribed by the
Trustee.
Interest on the Bonds will be payable each June 1 and December 1, commencing on June 1,
2012.
Interest due with respect to Bonds shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
The Bonds are delivered in fully registered form and shall be in Authorized Denominations.
Bonds may be exchanged at the Principal Office of the Trustee, in the manner and subject to the
limitations and conditions provided in the Indenture, for an equal aggregate principal amount of
Bonds of any Authorized Denominations.
The transfer of this Bond is registerable by the Owner hereof in person or by his attorney or
legal representative at the corporate office of the Trustee, but only in the manner and subject to the
limitations and conditions provided in the Indenture and upon surrender and cancellation of this
Bond. Upon any such registration of transfer, the Trustee shall execute and deliver in exchange for
this Bond a new Bond or Bonds, registered in the name of the transferee, of Authorized
Denominations, in an aggregate principal amount equal to the principal amount of this Bond.
Exhibit 1-3
DOCSOC/1519425 v 1/024168-0005
The Bonds are subject to optional redemption in whole or in part (in integral multiples of
$5,000) on any Business Day, at the option of the Authority at a redemption price equal to the
principal amount thereof together with accrued interest to the date fixed for redemption and
following premium expressed as a percentage of the redeemed principal amount:
Pz epayzneut Date Prenziuni
Ninth anniversary of the Fixed Rate Conversion Date
to the day before the tenth anniversary date of the
Fixed Rate Conversion Date 2%
Tenth anniversary of the Fixed Rate Conversion Date
to the day before the eleventh anniversary date of the
Fixed Rate Conversion Date 1%
Eleventh anniversary of the Fixed Rate Conversion
Date and thereafter 0%
The Bonds are subject to mandatory redemption on any Bond Payment Date, in whole or in
part, from moneys from Net Proceeds following the deposit by the Trustee in the Lease Prepayment
Account of the Redemption Fund of Net Proceeds deposited by the City under this Indenture, at least
45 days prior to a Bond Payment Date which have been credited towards the Prepayment made by
the City pursuant to the Lease, at a redemption price equal to the principal amount of the Bonds to be
redeemed,together with accrued interest to the date fixed for redemption,without premium.
In the event of a partial redemption of Bonds from Net Proceeds or an optional redemption as
described above, the forgoing annual sinking fund payments shall be reduced in equal percentages, as
nearly as practicable,provided that the reductions shall be made in multiples of$5,000.
If this Bond is called for redemption and payment is duly provided therefor as specified in the
Indenture, interest shall cease to accrue thereon from and after the date fixed for redemption.
The Authority and the Trustee may treat the Owner of this Bond (as evidenced by the Bond
register) as its absolute owner for all purposes, and the Authority and the Trustee shall not be
affected by any notice to the contrary.
In the manner provided in the Indenture,the rights and obligations of the Authority and of the
Owners of the Bonds, may (with certain exceptions as stated in the Indenture) be modified or
amended with the consent of the Owners of at least a majority in aggregate principal amount of the
Bonds then Outstanding.
No modification or amendment shall: (1) extend the fixed maturity of any Bond, or reduce
the amount of principal thereof or the rate of interest thereon, or extend the time of payment of
interest thereon, or change the method of computing the rate of interest thereon, or extend the time of
payment of interest thereon without the consent of the Owner of each Bond so affected; or(2)reduce
the percentage of Bonds the consent of the Owners of which is required to effect any such
modification or amendment, or permit the creation of any lien on the Revenues and other assets
pledged under the Indenture prior to or'on a parity with the lien created by the Indenture except as
otherwise provided therein, or deprive the Owners of the Bonds of the lien created by the Indenture
Exhibit 1-4
DOCSOC/1519425v 1/024168-0005
on such Revenues and other assets (except as expressly provided in this Indenture), without the
consent of the Owners of all the Bonds then Outstanding; or (3)modify any of the rights or
obligations of the Trustee without its written consent.
It is hereby recited, certified and declared that any and all acts, conditions and things required
to exist, to happen and to be performed precedent to and in the issuance of this Bond exist, have
happened and have been performed in due time, form and manner as required by the Constitution and
the statutes of the State of California.
This Bond shall not be valid and the Owner hereof shall not be entitled to any benefit
hereunder unless this Bond shall have been authenticated by the Trustee by the signature of a duly
authorized signatory.
Exhibit 1-5
DOCSOC/1519425v 1/024168-0005
IN WITNESS WHEREOF, THE CITY OF DIAMOND BAR PUBLIC FINANCING
AUTHORITY has caused this Bond to be executed on its behalf by the signature of the Chairperson
of the governing board of the Authority and attested by the Secretary of the governing board of the
Authority and this Bond to be authenticated manually by the Trustee and dated as of the date first
above written.
CITY OF DIAMOND BAR PUBLIC FINANCING
AUTHORITY
By:
Chairperson
ATTEST:
By:
Secretary
Exhibit 1-6
DOCSOC/1519425 v 1/024168-0005
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds described in the within-mentioned Indenture.
Date of Authentication: December 1, 2011
UNION BANK,N.A., as Trustee
By:
Authorized Signatory
Exhibit 1-7
DOCSOC/1519425 v 1/024168-0005
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
the within Bond, and does hereby irrevocably constitute and appoint
attorney to transfer said Bond on the books of the bond
Registrar with fiill power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by NOTICE: The signature(s) on this assignment
an eligible guarantor institution. must correspond with the name(s) as written
upon the face of the within Bond in every
particular, without alteration or enlargement or
any change whatsoever.
Exhibit 1-8
DOCSOC/1519425v]/024168-0005
VOLUNTARY REQUEST. TO ADDRESS THE CITY COUNCIL
TO . CITY CLERK
FROM: DATE:
ADDRESS:. � rL .. �lyi;�;�- .�r: PHONE:
ORGANIZATION okk "k
AGE NDA#/SUBJECT: : :q NIA
I expect 10 address the,'Council on the subject agenda/subject item. IFlease.have the Council Minutes
reflect my name and address as written above,:'..
store ;
This docurh6ht is a public.record subject to disclosure.,under the:Public Records Act