Loading...
Evan Brooks Associates Inc-2019-03 2019-03 AGREEMENT FOR CONTRACT SERVICES By and Between CITY OF GRAND TERRACE and EVAN BROOKS ASSOCIATES, INC. 01247.0005/53 8282.1 3/6/2019 AGREEMENT FOR CONTRACT SERVICES BY AND BETWEEN THE CITY OF GRAND TERRACE AND EVAN BROOKS ASSOCIATES,INC. This "AGREEMENT FOR CONTRACT SERVICES BY AND BETWEEN THE CITY OF GRAND TERRACE AND EVAN BROOKS ASSOCIATES, INC." (herein "Agreement") is made and entered into this day of March, 2019 by and between the City of Grand Terrace, a California municipal corporation ("City") and Evan Brooks Associates, Inc., a California corporation ("Consultant"). City and Consultant are sometimes hereinafter individually referred to as"Party" and hereinafter collectively referred to as the"Parties." RECITALS A. City has sought, by issuance of a Request for Qualifications or Invitation for Bids, the performance of the services defined and described particularly in Article I of this Agreement. B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article I of this Agreement, was selected by the City to perform those services. C. Pursuant to the City of Grand Terrace Municipal Code, City has authority to enter into and execute this Agreement. D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged,the parties agree as follows: ARTICLE 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose 01247.0005/538282.1 3/6/2019 -2- intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Consultant's Proposal. The Scope of Service shall include the Consultant's scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be 01247.0005/538282.1 3/6/2019 -3- responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty(180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other consultants. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit `B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit`B" and any other provisions of this Agreement, the provisions of Exhibit`B" shall govern. ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT. 2.1 Contract Sum. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Forty Thousand Dollars and Zero Cents ($40,000.00) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1.8. 01247.0005/538282.1 3/6/2019 -4- 2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant's rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or(iv) such other methods as may be specified in the Schedule of Compensation. 2.3 Reimbursable Expenses. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings. 2.4 Invoices. Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person. City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant's correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. 2.5 Waiver. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant. 01247.0005/538282.1 3/6/2019 -5- ARTICLE 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty(180) days cumulatively. 3.3 Force Maj eure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit"D"). ARTICLE 4. COORDINATION OF WORK 4.1 Representatives and Personnel of Consultant. The following principals of Consultant ("Principals") are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Hal SuetsuQu, President 01247.0005/538282.1 3/6/2019 -6- It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. 4.2 Status of Consultant. Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise,unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Consultant expressly waives any claim Consultant may have to any such rights. 4.3 Contract Officer. The Contract Officer shall be Sandra Molina, Director of Planning and Development Services, or such person as may be designated by the City Manager. It shall be the Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant's employees, servants,representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required 01247.0005/538282.1 3/6/2019 -7- herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. 4.5 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City. ARTICLE 5. INSURANCE AND INDEMNIFICATION 5.1 Insurance Coverages. The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City: (a) General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance(Form CA 0001 (Ed 1/87) including `any auto" and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than 01247.0005/538282.1 3/6/2019 -8- $1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile. (d) Professional Liability. Professional liability insurance appropriate to the Consultant's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of the City submit written evidence of this continuous coverage. (e) Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit`B". 5.2 General Insurance Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Consultant's insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self- insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Consultant has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following"cancellation"notice: 01247.0005/538282.1 3/6/2019 -9- CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL THIRTY (30)-DAY ADVANCE WRITTEN OTICE TO CERTIFICATE HOLDER NAMED HERE [to be initialed] Consu Initials City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or any automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant's activities or the activities of any person or persons for which the Consultant is otherwise responsible nor shall it limit the Consultant's indemnification liabilities as provided in Section 5.3. In the event the Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, the contract between the Consultant and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Consultant is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to City. 5.3 Indemnification. To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents ("Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein"claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or 01247.0005/538282.1 3/6/2019 -10- entity for which Consultant is legally liable ("indemnitors"), or arising from Consultant's or indemnitors' reckless or willful misconduct, or arising from Consultant's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: (a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorney's fees incurred in connection therewith; (b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorney's fees. Consultant shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City's sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement. 5.4 Sufficiency of Insurer. Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City("Risk Manager") due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the risk manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager. 01247.0005/538282.1 3/6/2019 -11- ARTICLE 6. RECORDS,REPORTS,AND RELEASE OF INFORMATION 6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant's business, custody of the books and records may be given to City, and access shall be provided by Consultant's successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act. 6.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the "documents and materials"), including any electronic documents and materials, prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City in a format of the City's choice upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and Consultant's guarantee and warranties shall not extend to 01247.0005/538282.1 3/6/2019 -12- such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for the City. 6.4 Confidentiality and Release of Information. (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer. (b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary"provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Consultant's conduct. (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right,but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION 7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District 01247.0005/538282.1 3/6/2019 -13- Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California. 7.2 Disputes; Default. In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. 7.3 Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party 01247.0005/538282.1 3/6/2019 -14- of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue a legal action under this Agreement. 7.7 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon written notice to Consultant. In addition, the Consultant may terminate this Contract for cause, upon sixty(60) days' advance written notice to City. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.8 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.9 Attorney's Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other 01247.0005/538282.1 3/6/2019 -15- necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liabilit of Officers and Employ No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. 8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation,marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class. 8.4 Unauthorized Aliens. Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorney's fees, incurred by City. 01247.0005/538282.1 3/6/2019 -16- ARTICLE 9. MISCELLANEOUS PROVISIONS 9.1 Notices. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Grand Terrace, 22795 Barton Rd, Grand Terrace, CA 92313, and in the case of the Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. 9.5 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 01247.0005/53 8282.1 3/6/2019 -17- 9.6 Warranty&Representation of Non-Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote"or"noninterests"pursuant to Government Code Sections 1091 or 1091.5. Nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation, including but not limited to the Political Reform Act (Government Code Sections 81000, et seq.) Consultant warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effe . Consultant's Authorized Initials 9.7 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE] 01247.0005/538282.1 3/6/2019 -18- IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date and year first-above written. CITY: City of Grand Terrace, a municipal corporation G. Har d f y, Ci anager T ST: Debra Thomas, City Clerk APPROVED AS TO FORM: ALESHIRE & ER, L Adrian R. Guerra, City Attorney CONSULT T: Evan Bro ,ik A ates, Inc., a California corporatio By: II : e: H o Suetsugu P es' ent-Managing Partner Name: Title: Address: 2824 E Foothill Blvd. Pasadena, CA 91107 Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY. 01247.0005/538282.1 3/6/2019 19 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO ✓b\i L On I lawc1r,1 fS , 2019 before me,K•Cacar9e, ersonally appeared-tImmc,c! roved to me on the basis of satisfactory evidence to be the person(s)w se names(s) is/are subscribed to the wi instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. K.GEORGE WITNESS my hand and off ial seal. NotaryPublic-California Z Z Los Angeles County5�� a Signature: ' Commission#2184722 My Comm.Expires Mar 23,2021 OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLES) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01247.0005/538282.1 3/6/2019 IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date and year first-above written. CITY: City of Grand Terrace, a municipal corporation G. Harold Duffey, City Manager ATTEST: Debra Thomas, City Clerk APPROVED AS TO FORM: ALESHIRE&WYNDER, LLP Adrian R. Guerra, City Attorney CONSULTANT: Evan Brooks Associates, Inc., a California corporation By: Name: Title: By: 41 Name: ' da Hui Title: Partner Address: 2824 E Foothill Blvd. Pasadena, CA 91107 Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY. 01247.0005/538282.1 3/6/2019 19 California All-Purpose Certificate of Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California s.S County of Los Angeles On MArck 11, 'kO before me, ;[1W�h WcHucA V , NOTARY PUBLIC, personally appeared [i (V DA Y i W I who proved to me on the basis of satisfactory evidence to be the person'whose nameK(i are subscribed to the within instrument and acknowledged to me that he/they executed the same in hi /their authorized capacity,(, , and that by his their signatureXon the instrument the person; or the entity upon behalf of which the person�4 acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragrap true and correct. BRENDA MACHUCA V. Notary Public-California i -� Los Angeles County WITNESS my h d n offi 'al seal. = Commission #2194619 _PIZ Comm.Expires Apr 29,2021 Signatu ublic Seal ----___-_---_--_-,_—OPTIONAL INFORMATION-------------- _ - Although the information in this section is not required by law,it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of w,41e* c •dI2.Lj viu't-/�,A Containing 2) 1 pages,and dated /V`etir­c L-, I II 7,0o. EXHIBIT "A" SCOPE OF SERVICES 1. Consultant shall provide on-call grant writing services, as more fully detailed in Exhibit A-1. The Consultant has been selected to provide services of a certain nature which will be readily available for a fixed rate when needed. When providing grant writing services, it is the responsibility of Consultant to conduct its operations so as to minimize any deviations from the schedule or budget, to inform City in advance of such deviations, and to provide written explanation and justification therefore to City. 11. Consultant acknowledges and agrees that City has no obligation to utilize Consultant under this Agreement. III. As part of the Services, Consultant will prepare and deliver the following tangible work products to the City: A. Print version of Consultant's findings from grant research and funding opportunities research, including but not limited to the name of the granting agency, due dates for applications, eligibility, a brief program summary, and the level of funding available. B. Print versions of any City directed grant writing. C. Consultant shall prepare and provide copies of all post-grant award filings of documents required by the awarding entity. D. Such other tangible work products as the City may require. IV. In addition to the requirements of Section 6.2, during performance of the Services, Consultant will keep the City appraised of the status of performance by delivering the following status reports: A. Updates every two weeks during the term of this Agreement regarding recommended grants for the City to apply for and any related updates as to the administration post-grant awards. IV. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City. V. Consultant will utilize the following personnel to accomplish the Services: A. Hal Suetsugu, President B. Daniel Bartelson, Principal C. Anna M. Parra, Grants Administration Manager 01247.0005/538282.1 3/6/2019 A-1 D. Christina Cardenas, Community and Municipal Planning Manager E. Juliet M. Arroyo, Senior Planning Associate F. Hector Ramirez, Cost Estimator G. Dr. M. Yunus Rahi, PHD, PE, TE, Senior Engineer H. Sabry Abdelmalik, PE, Senior Engineer I. Lawrence Onaga, Urban Designer J. Selim Bouhamidi, E-76 and Funds Administrator K. Amy Davis, Planning Associate L. Jorge Zarza, Planning Associate 01247.0005/538282.1 3/6/2019 A-2 EXHIBIT "A-1" ON-CALL GRANT WRITING SERVICES I. Consultant shall research, advise, and perform grant award administration for the City (collectively, the "Services"). The Services shall include, but not be limited to, the following: A. Task A: Grant Research Services. Consultant shall provide unlimited grant research as follows: 1. At no charge to the City, Consultant shall provide targeted grant research on projects specifically identified by the City and shall also independently conduct research to identify grant funding opportunities for the City. Consultant shall specifically conduct research and provide advice in the following priority areas: (i) Infrastructure Development and Maintenance; (ii) Transportation/Highways/ Sustainability/Transit; (iii)Technology/Energy/Water/Stormwater; (iv)Parks, Recreation and the Arts; (v)Brownfields planning and development; (vi) Community/Municipal Planning; (vii) Community/Economic Development; (viii)Housing and Housing Programs. In the event that the City identifies other areas, this information will be conveyed to Consultant. B. Task B: Grant Writing Services. Consultant shall perform grant writing at the direction of the City. At the direction by the City, Consultant shall provide, at no cost to the City, a Cost Proposal for grant writing services for a specific grant opportunities, which shall include but is not limited to,the following information: (i) Demonstrate understanding of the project/grant. (ii) Project Development. Identify steps that will be taken to ensure project development, project kick-off, project scope, schedule, budget for the grant application, and communication with City staff(including communication with the City). (iii) Data collection and review. Identify the tasks for data collection and review needed to support the grant application. 01247.0005/538282.1 3/6/2019 A-3 (iv) Grant preparation. Identify tasks related to preparation of information required for grant application, including project descriptions and narratives; quantitative data; and project scope, timeline, and budget description and tables, and maps or conceptual site/project plans. Prepare all CEQA documentation, and draft letters of support. (v) Review of Draft. Provide a draft of the grant application for City review and approval. (vi) Grant Application Finalization and Submittal. Consultant shall submit the application by the grant application due date and provide City with confirmation of the grant application's delivery, as well as a copy of the final application package in physical and digital format of the City's choosing. The Cost Proposal shall be based upon the hourly rates set forth in Exhibit C-1. C. Task C: Advisory Services. Consultant shall offer City general advice on matters involving funding mechanisms, grants research, identification, grant-writing, and administration. Task B services shall be based upon the hourly rates set forth in Exhibit"C-1." D. Task D: Award Administration Services. In consultation with and at the request of the Contract Officer, Consultant shall provide post-grant award administration on grants which are awarded to the City, including the filing of required documents on behalf of the City; or in consultation with the City,by the proscribed deadlines set by the awarding entity; reporting and monitoring for Federal and State obligations (e.g., #-76 approvals and California Transportation Commission submission). Task C services shall be based upon the hourly rates set forth in Exhibit"C-1." 01247.0005/538282.1 3/6/2019 A-4 EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) I. Section 3.4, "Term," shall be modified as follows (stiles represents deleted language while bold italics represents added language): "Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one-(1) three (3) years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit"D")." 01247.0005/538282.1 3/6/2019 B-1 EXHIBIT"C" SCHEDULE OF COMPENSATION I. For Services under Exhibit A,Consultant shall establish a cost proposal based upon the time and rates of the personnel performing the subtasks and itemizing materials and equipment utilized and the costs thereof, which cost proposal shall conform to the requirements provided in Exhibit A. III. Within the budgeted amounts for each Task or subtask, and with the approval of the Contract Officer,funds may be shifted from one Task subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8. IV. The City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include: A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate. B. Line items for all materials and equipment properly charged to the Services. C. Line items for all other approved reimbursable expenses claimed, with supporting documentation. D. Line items for all approved subcontractor labor,supplies,equipment,materials,and travel properly charged to the Services. V. The total compensation for the Services shall not exceed $40,000.00 as provided in Section 2.1 of this Agreement. VI. The Consultant's billing rates for all personnel are attached as Exhibit C-1. C-1 EXHIBIT "C-1" RATESCHEDULE Consultant's fees include time and materials charges directly related to client services. This includes hours for work tasks, project management and coordination services, such as staff meetings, public presentations, and project direct expenses. Consultant may invoice City for the full cost of out-of-pocket expenses directly related to project assignments under this Agreement, provided that Consultant receives written authorization from the Contract Officer to do so. Consultant's hourly rates are as follows: Personnel Hourly Rate President-Managing Partner $210 Project Manager $190 Assistant Project Manager $180 Principal Grants-Funds Manager Grant Manager $150 Outreach Manager Project Transportation Planner Grant Writer $125 GIS Mapping/Cartographer Associate Transportation Planner Research/Funds Analyst $95 Graphics/Mapping $90 Administrative Support $75 01247.0005/538282.1 3/6/2019 C-2 EXHIBIT "D" SCHEDULE OF PERFORMANCE I. The Services, as specified in Section I of Exhibit A-1 shall be performed in accordance with the following schedule: Task Deadline Task A: Grant Research All times during the term of this Agreement Task B: Grant Writing As requested/authorized by the Contract Officer. Services Task C: Advisory Services As requested by the Contract Officer Task D: Administration As required by awarding entity and any established deadlines; and in a manner to ensure City has sufficient time to provide any documentation timely to the awarding entity when applicable II. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2. 01247.0005/538282.1 3/6/2019 D-1 MAR 21 2019 BYLAWS OF EVAN BROOKS ASSOCIATES,INC. ARTICLE I. OFFICES Section 1.01. Principal Offices. The Board of Directors (the 'Board") shall fix the location of the principal executive office of the Corporation at any place within or without the State of California. If the principal executive office is located outside the State of California, and the Corporation has one or more business offices in the State of California, the Board shall fix and designate a principal business office in the State of California. Section 1.02. Other Offices. The Board may at any time establish branch or subordinate offices at any place or places where the Corporation is qualified to do business. ARTICLE II. SHAREHOLDERS Section 2.01. Annual Meeting. The annual meeting of the shareholders for the election of directors to succeed those whose terms expire and for the transaction of any other business as may properly come before the meeting shall be held on the second Friday of June in each year at 10:00 a.m. However, if this day falls on a holiday, then the meeting shall be held on the next succeeding business day. If an annual meeting of the shareholders is not held as prescribed in these bylaws, the election of directors may be held at any meeting subsequently called pursuant to these bylaws. Section 2.02. Special Meetings. Special meetings of the shareholders may be called at any time by the Board, the Chair of the Board (the "Chair"), the President, or one or more shareholders holding shares in the aggregate entitled to cast not less than ten percent (10%) of the votes at the meeting. If a special meeting is called by any person or persons other than the Board, the request shall be in writing, specifying the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail to the Chair, the President, any Vice-President or the Secretary of the corporation. The request shall also specify the time of the meeting which shall not be less than thirty-five (35) nor more than sixty (60) days after receipt of the request. The officer receiving the request shall forthwith cause notice to be given to the shareholders entitled to vote, in accordance with 1 the provisions of Sections 2.04 and 2.05 of these bylaws, that a meeting will be held at the time specified. If the notice is not given within twenty (20) days after receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this Section shall be construed as limiting, fixing or affecting the time when a shareholders'meeting called by action of the Board may be held. Section 2.03. Place of Meetings. All meetings of the shareholders shall be at any place within or without the State of California as designated by the Board. In the absence of any such designation, shareholders' meetings shall be held at the principal executive office of the Corporation. Section 2.04. Notice. All notices of shareholder meetings shall be sent or otherwise given in accordance with Section 2.05 of these bylaws, not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and: (1) in the case of a special meeting, the general nature of the business to be transacted; or (2) in the case of the annual meeting, those matters which the Board, at the time of giving the notice, intends to present for action by the shareholders. The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees whom, at the time of the notice, management intends to present for election. If any action is proposed to be taken at any meeting for approval of the following actions under the General Corporation Law (Corp. Code, §§ 100 et seq., "Corporations Code"): (1) a contract or transaction in which a director has a direct or indirect financial interest under Corp. Code, § 310; (2) an amendment of the Articles of Incorporation under Corp. Code, § 902; (3) a reorganization of the Corporation under Corp. Code, § 1201; (4) a voluntary dissolution of the Corporation under Corp. Code, § 1900; or (5) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares under Corporations Code § 2007, then the notice shall also state the general nature of that proposal. Section 2.05. Manner of Giving Notice; Affidavit of Notice. Notice of any shareholders' meeting shall be given either personally or by first class mail or facsimile, addressed to the shareholder at the address of that shareholder appearing on the books of the Corporation or given by the shareholder to the Corporation for the purpose of notice. If no such address appears on the Corporation's books or has been so given, notice shall be deemed to have been given if sent to that shareholder by first class mail or telegraphic or other written communication to the Corporation's principal executive office, or if published at least once in a newspaper of general circulation in the county where that 2 office is located. Notice shall be deemed to have been given at the time when delivered personally, deposited in the mail, delivered to a common carrier for transmission to the recipient, actually transmitted by electronic means to the recipient by the person giving the notice, or sent by other means of written communication. If any notice addressed to a shareholder at the address of that shareholder appearing on the books of the Corporation is returned to the Corporation by the United States Postal Service marked to indicate that the United States Postal Service was unable to deliver the notice to the shareholder at that address, all future notices or reports shall be deemed to have been duly given without further mailing if the notices shall be available to the shareholder on written demand of the shareholder at the principal executive office of the Corporation for a period of one(1) year from the date of the giving of the notice. An affidavit of the mailing or other means of giving any notice of any shareholders' meeting may be executed by the Secretary, any Assistant Secretary, or any transfer agent of the Corporation giving the notice, and filed and maintained in the minute book of the Corporation. Section 2.06. Quorum. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any shareholders' meeting constitutes a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the departure from the meeting of enough shareholders to leave less than a quorum, if any action taken, other than an adjournment, is approved by at least a majority of the shares required to constitute a quorum. Section 2.07. Adjourned Meeting; Notice. Any shareholders' meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at that meeting, either in person or by proxy, but in the absence of a quorum, no other business may be transacted at that meeting, except as provided in Section 2.06. When any shareholders' meeting, either annual or special, is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place are announced at the meeting at which the adjournment is taken, unless a new record date for the adjourned meeting is fixed, or unless the adjournment is for more than forty-five (45) days from the date set for the original meeting, in which case the Board shall set a new record date. Notice of any adjourned meeting, if required, shall be given to each shareholder of record entitled to vote at the adjourned meeting in accordance with the provisions of Sections 2.04 and 2.05. At any adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting. Section 2.08. Voting. The shareholders entitled to vote at any meeting of shareholders shall be determined in accordance with the provisions of Section 2.11, subject to the provisions of Corp. Code, §§ 702 to 704, inclusive, (relating to voting shares held by a 3 fiduciary, in the name of a corporation, or in joint ownership), as amended. The shareholders' vote may be by voice vote or by ballot; provided, however, that any election for directors must be by ballot if demanded by any shareholder before the voting has begun. Except as provided in the last paragraph of this Section 2.08, or as may be otherwise provided in the Articles of Incorporation, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote of the shareholders. On any matter other than the election of directors, any shareholder may vote part of the shares owned by that shareholder in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but if the shareholder fails to specify the number of shares which the shareholder is voting affirmatively, it will be conclusively presumed that the shareholder's approving vote is with respect to all shares that the shareholder is entitled to vote. If a quorum is present (or if a quorum had been present earlier at the meeting but some shareholders had withdrawn), the affirmative vote of a majority of the shares represented and voting, provided the shares voting affirmatively also constitute a majority of the number of shares required for a quorum, shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by California Corporations Code or by the corporation's articles of incorporation. At a shareholders' meeting at which directors are to be elected, no shareholder shall be entitled to cast for any candidate a number of votes greater than the number of votes which the shareholder normally is entitled to cast, or "cumulate votes," unless the candidate's name has been placed in nomination before commencement of the voting and a shareholder has given notice before the commencement of the voting of the shareholder's intention to cumulate votes. If any shareholder has given that notice, then every shareholder entitled to vote may cumulate votes for candidates in nomination and give one: (1) candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which that shareholder's shares are normally entitled, or distribute the shareholder's votes on the same principle among any or all of the candidates, as the shareholder thinks fit. The candidates receiving the highest number of votes, up to and including the number of directors to be elected, shall be elected. Section 2.09. Waiver of Notice or Consent by Absent Shareholders. The transactions of any meeting of shareholders, either annual or special, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, who was not present in person or by proxy, signs a written waiver of notice or a consent to a holding of the meeting, or an approval of the minutes. The waiver of notice or consent need not specify either the business to be transacted or the purpose of any annual or special shareholders' meeting, except that if an action is taken or proposed to be taken for approval of any of those matters specified in Section 2.04, the waiver of notice or consent shall state the general 4 nature of the proposal. All waivers, consents, or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, except when the person objects at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters required by law to be included in the notice of the meeting, but not so included, if that objection is expressly made at the meeting. Section 2.10. Shareholder Action by Written Consent Without a Meeting. Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote on that action were present and voted. Directors may be elected by written consent without a meeting only if the written consents of all outstanding shares entitled to vote are obtained, except that a vacancy on the Board (other than a vacancy created by the removal of a director) not filled by the Board may be filled by the written consent of the holders of a majority of the outstanding shares entitled to vote. All written consents shall be filed with the Secretary and shall be maintained in the corporate records. Any shareholder giving a written consent, or the shareholder's proxy holder, transferee of the shares. or personal representative or their respective proxy holders, may revoke the consent by a writing received by the Secretary before the written consents of the number of shares required to authorize the proposed action have been filed with the Secretary. If the consents of all shareholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such shareholders shall not have been received, the Secretary shall give prompt notice of the corporate action approved by the shareholders without a meeting. This notice shall be given in the manner specified in Section 2.05. In the case of approval of: (1) contracts or transactions in which a director has a direct or indirect financial interest under Corp. Code, § 310; (2) indemnification of agents of the Corporation under Corp. Code, § 317; (3) a reorganization of the Corporation under Corp. Code, § 1201; or (4) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, under Corp. Code, § 2007, notice of such approval 5 shall be given at least ten (10) days before the consummation of any action authorized by that approval. Section 2.11. Record Date for Shareholder Notice, Voting and Giving Consents. For purposes of determining the shareholders entitled to notice of any meeting, or to vote or to give consent to corporate action without a meeting, the Board may fix, in advance, a record date, which shall not be more than sixty (60) days or less than ten (10) days before the date of any such meeting or more than sixty (60) days before any such action without a meeting, and in this event only shareholders of record at the close of business on the date so fixed are entitled to notice and to vote or to give consents, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after the record date, except as otherwise provided in the California Corporations Code. If the Board does not fix a record date: (a) The record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. (b) The record date for determining shareholders entitled to give consent to corporate action in writing without a meeting shall be (1) when no prior action by the Board has been taken, the day on which the first written consent is given; or (2) when prior action of the Board has been taken, at the close of business on the day on which the Board adopts the resolution relating to that action, or the sixtieth (60th) day before the date of any other action, whichever is later. The record date for any other purpose shall be as provided in Article VH of these bylaws. Section 2.12. Proxies. Every person entitled to vote for directors or on any other matter shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the Secretary. A proxy shall be deemed signed if the shareholder's name is placed on the proxy, whether by personal signature, typewriting, telegraphic transmission, or otherwise, by the shareholder or the shareholder's attorney-in-fact. A validly executed proxy that does not state that it is irrevocable shall continue in full force and effect unless: (1) revoked by the person executing it, before the vote pursuant to that proxy, by a writing delivered to the Corporation stating that the proxy is revoked, or by attendance at the meeting and voting in person by the person who executed the proxy or by a subsequent proxy executed by the same person and presented at the meeting; or (2) written notice of the death or incapacity of the maker of that proxy is received by the Corporation before the vote pursuant to that proxy is counted; provided, however, that no proxy shall be valid after the expiration of eleven (11) months from the date of the proxy, unless otherwise provided in the proxy. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Corp. Code, § 705(e) and(f). 6 Section 2.13. Inspectors of Election. Before any meeting of the shareholders, the Board may appoint any persons other than nominees for office to act as inspectors of election at the meeting or its adjournment. If no inspectors of election are so appointed, the chair of the meeting may, and on the request of any shareholder or a shareholder's proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be one (1). If an inspector is appointed at a meeting on the request of one (1) or more shareholders or proxies, the holders of a majority of shares or their proxies present at the meeting shall determine whether one (1) inspector is to be appointed. If any person appointed as an inspector fails to appear or fails or refuses to act, the chair of the meeting may, and upon the request of any shareholder or a shareholder's proxy shall, appoint a person to fill that vacancy. These inspectors of election shall: (a) determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies; (b)receive votes,ballots, or consents; (c) hear and determine all challenges and questions in any way arising in connection with the right to vote; (d) count and tabulate all votes or consents; (e) determine when the polls shall close; (f) determine the result; and (g) do any other act that may be proper to conduct the election or vote with fairness to all shareholders. Section 2.14. Conduct of Meetings. Subject to any limitations in the Articles of Incorporation or these Bylaws and to any provision of the California Corporations Code, all annual and special meetings of shareholders shall be conducted in accordance with those rules and procedures as the Board may determine and, as to matters not governed by those rules and procedures, as the chair of the meeting shall determine, including, without limitation, the establishment of rules and procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to the meeting after the time prescribed for its commencement, and the opening and closing of the voting polls. 7 ARTICLE III. BOARD OF DIRECTORS Section 3.01. Powers. Subject to any limitations in the Articles of Incorporation or these Bylaws, and to any provision of the California Corporations Code requiring shareholder authorization or approval for a particular action, the business and affairs of the Corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board. The Board may delegate the management of the day to day operation of the business of the Corporation to a management company or other person, provided that the business and affairs of the Corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. Section 3.02. Number, Tenure and Qualifications. The authorized number of directors of the Board shall be not less than two (2) or more than seven (7). The exact number of authorized directors shall be two (2) until changed, within the limits specified above, by a bylaw amending this Section 3.02 of these Bylaws, duly adopted by either the Board or by the Shareholders. The indefinite number of directors may be changed, or a definite number fixed without provision for an indefinite number, by a duly adopted amendment to the Articles of Incorporation or by an amendment to this Section of the Bylaws duly adopted by the vote or written consent of holders of a majority of the outstanding shares entitled to vote; provided, however, that an amendment reducing the number of directors to a number less than two (2) cannot be adopted if the votes cast against its adoption at a meeting, or the shares not consenting in the case of action by written consent, are equal to more than sixteen and two-thirds percent (16 2/3%) of the outstanding shares entitled to vote. Directors shall be elected at each annual meeting of shareholders to hold office until the next annual meeting. Each director, including a director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until a successor has been elected and qualified. If an annual meeting is not held, or the directors are not elected at that annual meeting, the directors may be elected at any special meeting of the shareholders held for that purpose. Directors need be shareholders. Section 3.03. Regular Meetings. A regular annual meeting of the Board shall be held immediately after, and at the same place as, the annual meeting of shareholders for the purpose of electing officers and transacting any other business. The Board may provide for other regular meetings from time to time by resolution. In the absence of this type of resolution, other regular meetings of the Board shall be held quarterly on the second Tuesday of March, June, September and December at 11:00 a.m. However, if this day falls on a holiday, then the meeting shall be held on the next succeeding business day. Annual and other regular meetings may be held without call or notice. Section 3.04. Special Meetings. Special meetings of the Board for any purpose or purposes may be called at any time by the Chair, the President, any Vice-President, the Secretary, or any(two) directors. 8 Notice of the time and place of special meetings shall be delivered personally to each director or sent by first class mail, addressed to each director at that director's address as it is shown on the records of the Corporation. In case the notice is mailed, it shall be deposited in the United States mail at least four (4) days before the time of meeting. In case the notice is delivered personally, it shall be delivered personally at least forty-eight (48) hours before the time of the meeting. Any oral notice given personally may be communicated either to the director or to a person at the office of the director whom the person giving the notice has reason to believe will promptly communicate it to the director. The notice need not specify the purpose of the meeting, nor need it specify the place if the meeting is to be held at the principal executive office of the Corporation. Section 3.05. Place of Meetings. Meetings of the Board may be held at any place within or without the State of California that has been designated in the notice. If a place has not been stated in the notice or there is no notice, meetings shall be held at the principal executive office of the Corporation unless another place has been designated by a resolution duly adopted by the Board. Section 3.06. Participation by Electronic Means. Members of the Board may participate in a meeting through use of conference telephone, electronic video screen communication, or other communications equipment. Participation in a meeting through use of conference telephone constitutes presence in person at that meeting pursuant to this Section 3.06 as long as all members participating in the meeting are able to hear one another. Participation in a meeting through the use of communications equipment other than conference telephone constitutes presence in person at that meeting pursuant to this Section 3.06 as long as each member participating in the meeting can communicate with all other participants concurrently; each member may participate in all matters before the board, including proposing or objecting to a specific action to be taken by the corporation; and the corporation verifies prior to the meeting that persons participating in the meeting are entitled to participate, and that any action or vote taken at the meeting is taken only by the directors. Section 3.07. Quorum. A majority of authorized directors shall constitute a quorum for the transaction of business. In the absence of a quorum a majority of the directors present may adjourn any meeting to another time and place. If a meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment to another time or place shall be given, in the manner specified in Section 3.04 of these Bylaws, prior to the time of the adjourned meeting to the directors who were not present at the time of adjournment. Section 3.08. Action at Meeting. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present is the act of the Board, subject to the provisions of Corp. Code, § 310 (as to approval of contracts or transactions in which a director has a direct or indirect material financial interest), Corp. Code, § 311 (as to appointment of committees), and Corp. Code, § 317(e) (as to indemnification of directors). A meeting at which a quorum is initially present may 9 continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting. Section 3.09. Waiver of Notice. The transactions of any meeting of the Board, however called and noticed or wherever held, shall be as valid as though at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes of that meeting. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Notice of any meeting of the Board need not be given to any director who attends the meeting without protesting prior to the meeting or at its commencement the lack of notice to him or her. A waiver of notice need not specify the purpose of any regular or special meeting of the board of directors. Section 3.10. Action Without Meeting. Any action required or permitted to be taken by the Board may be taken without a meeting, if all members of the Board individually or collectively consent in writing to that action. The written consent or consents shall be filed with the minutes of the proceedings of the Board. The action by written consent shall have the same force and effect as a unanimous vote of such directors. Section 3.11. Removal. The Board may declare vacant the office of a director who has been declared of unsound mind by an order of court or who has been convicted of a felony, as defined in Cal. Pen. Code, § 17. The entire Board or any individual director may be removed from office without cause by a vote of those shareholders holding a majority of the outstanding shares entitled to vote at an election of the director or directors concerned; provided, however, that unless the entire Board is removed, no individual director may be removed when the votes cast against removal, or not consenting in writing to that removal, would be sufficient to elect such director if voted cumulatively at an election at which the same total number of votes cast were cast (or, if that action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the time of the director's most recent election were then being elected. If the office of a director is so declared vacant or if the Board or any one or more directors be so removed, new directors may be elected at the same meeting. Section 3.12. Resignations. Any director may resign effective on giving written notice to the Chair or the President or the Secretary or the entire Board, unless the notice specifies a later time for the effectiveness of the resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. Section 3.13. Vacancies. Except for a vacancy created by the removal of a director, all vacancies on the Board, whether caused by resignation, death, or otherwise, may be filled 10 by a majority of the remaining directors, even though less than a quorum, or by a sole remaining director, and each director so elected shall hold office until the expiration of the term for which elected until a successor is elected and qualified. Vacancies created by the removal of a director may be filled only by approval of a majority of the shareholders entitled to vote at an election of directors. The shareholders may elect a director at any time to fill any vacancy not filled by the directors. Any such election by written consent requires the consent of a majority of the outstanding shares entitled to vote, except that filling a vacancy created by removal of a director shall require the written consent of the holders of all outstanding shares entitled to vote. A vacancy or vacancies on the Board shall be deemed to exist: (i) in the event of the death, resignation or removal of any director; (ii) if the Board by resolution declares vacant the office of a director who has been declared of unsound mind by an order of court or convicted of a felony; (iii) if the authorized number of directors is increased; or (iv) if the shareholders fail, at any meeting of shareholders at which any director or directors are elected, to elect the number of directors to be elected at that meeting. Section 3.14. Compensation. Directors and members of committees may receive compensation for their services, and reimbursement for expenses as may be fixed or determined by a resolution of the Board. This Section shall not be construed to preclude any director from serving the Corporation in any other capacity as an officer, agent, employee, or otherwise, and receiving compensation for those services. Section 3.15. Committees. The Board may, by resolution adopted by a majority of the authorized number of directors, designate one or more committees, each consisting of one or more directors, to serve at the pleasure of the Board. The Board may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors. Any committee, to the extent provided in a resolution of the Board, shall have all the authority of the Board in the management of the business and affairs of the Corporation, except with respect to: (1) the approval of any action requiring shareholders' approval or approval of the outstanding shares; (2) the filling of vacancies on the Board or any committee; 11 (3) the fixing of compensation of directors for serving on the Board or a committee; (4) the adoption, amendment or repeal of a Bylaw or Bylaws; (5) the amendment or repeal of any resolution of the Board which by its express terms is not so amendable or repealable; (6) a distribution to shareholders, except at a rate or in a periodic amount or within a price range determined by the Board; and (7) the appointment of other committees of the Board or the members of the committee. Section 3.16. Meetings and Action of Committees. Meetings and action of committees shall be governed by and held and taken in accordance with the provisions of Article III of these Bylaws dealing with meetings of directors, with those changes in the context of those Bylaws as are necessary to substitute the committee and its members for the Board and its members, except that the time of regular meetings of committees may be determined either by resolution of the Board or by resolution of the committee; special meetings of committees may also be called by resolution of the Board; and notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board may adopt rules for the government of any committee not inconsistent with the provisions of these Bylaws. ARTICLE IV. OFFICERS Section 4.01. Number and Term. The officers of the Corporation shall be a Chair of the Board of Directors ("Chair") or a President, or both, one or more Vice-Presidents, a Secretary and/or a Chief Financial Officer, all of whom shall be chosen by the Board. In addition, the Board may appoint such other officers as may be deemed expedient for the proper conduct of the business of the Corporation, each of whom shall have the authority and perform the duties as the Board may from time to time determine. The officers to be appointed by the Board shall be chosen annually at the regular meeting of the Board held after the annual shareholders' meeting and shall serve at the pleasure of the Board, subject to the rights, if any, of an officer under any employment contract. If officers are not chosen at that meeting of the Board, they shall be chosen as soon after the meeting as shall be convenient. Each officer shall hold office until that officer's successor shall have been duly chosen or until that officer's removal or resignation. Section 4.02. Inability to Act. In the case of the absence or the inability to act of any officer of the Corporation and of any person authorized by these Bylaws to act in the 12 officer's place, the Board may from time to time delegate the powers or duties of that officer to any other officer, or any director or other person whom it may select. Section 4.03. Removal and Resignation. Subject to the rights, if any, of an officer under any contract of employment, any officer chosen by the Board may be removed at any time, with or without cause, by the Board or, except in the case of an officer chosen by the Board, by any officer on whom that power of removal may be conferred by the Board. Any officer chosen by the Board may resign at any time by giving a written notice of resignation to the Corporation. Unless a different time is specified in the notice, that resignation shall be effective upon its receipt by the Chair, the President, the Secretary, or the Board. Section 4.04. Vacancies. The Board for the unexpired portion of the term may fill a vacancy in any office because of any cause. Section 4.05. Chair. The Chair, if such office is filled by the Board, shall when present, preside at all meetings of shareholders and the Board and shall perform all other duties as are incident to the office or are assigned by the Board. If the Chair is designated as the chief executive officer or if there is no President or Vice-President performing the duties of the President pursuant to Section 4.07, the Chair shall in addition be the chief executive officer of the Corporation and shall have the powers and duties prescribed in Section 4.06. Section 4.06. President. The President shall be the general manager and, unless the Chair has been designated by the Board as the chief executive officer, chief executive officer of the Corporation and, in the absence of the Chair (if a Chair has been appointed) or during any period in which the office of Chair is for any reason vacant, shall preside at all shareholders' meetings and, if a member, at all meetings of the Board. If the President is the chief executive officer, the President shall, subject to the control of the Board, have general supervision of the affairs of the Corporation, shall sign or countersign or authorize another officer to sign all certificates, contracts, and other instruments of the Corporation as authorized by the Board, shall make reports to the Board and shareholders, and shall perform all such other duties as are incident to that office or are properly required by the Board. If the President is not the chief executive officer, the President shall have those powers and discharge those duties as may be assigned from time to time by the Chair or by the Board. Section 4.07. Vice Presidents. In the absence of the President, or in the event of the President's death, disability, or refusal to act, the Vice President or, in the event there be more than one Vice President, the Vice Presidents in the order designated at the time of their selection, or in the absence of any designation, then in the order of their selection, shall perform the duties of the President, and when so acting, shall have all the powers and be subject to all restrictions upon the President. Each Vice President shall have those 13 powers and discharge those duties as may be assigned from time to time by the chief executive officer or by the Board. Section 4.08. Secretary. The Secretary shall keep or cause to be kept, at the principal executive office of the Corporation or such other place as the Board may direct, a book of minutes of all meetings and actions of directors, committees of directors and shareholders. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at directors' meetings or committee meetings, the number of shares present or represented at shareholders'meetings, and the proceedings thereof. The Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation, or at the office of the Corporation's transfer agent or registrar, as determined by resolution of the Board, a share register, or a duplicate share register, showing the names of all shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board required to be given by law or by these Bylaws. The Secretary shall keep the seal of the Corporation, if one be adopted pursuant to Section 7.02 of these Bylaws, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board or by these Bylaws. The Assistant Secretary or Secretaries who may be appointed by the Board, in the order of their seniority shall, in the absence or disability of the Secretary, or in the event of the Secretary's refusal to act, perform the duties and exercise the powers and discharge those duties as may be assigned from time to time by the chief executive officer or by the Board. Section 4.09. Chief Financial Officer. The Chief Financial Officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and shares. The books of account shall at all reasonable times be open to inspection by any director. The Chief Financial Officer shall deposit all money and other valuables in the name and to the credit of the Corporation with such depositaries as may be designated by the Board. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the president and directors, whenever they request it, an account of all of his transactions as Chief Financial Officer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board or these Bylaws. 14 The Assistant or Assistants to the Chief Financial Officer who may be appointed by the Board, in the order of their seniority shall, in the absence or disability of the Chief Financial Officer, or in the event of the Chief Financial Officer's refusal to act, perform the duties and exercise the powers of the Chief Financial Officer, and shall have those powers and discharge those duties as may be assigned from time to time by the President or by the Board. Section 4.10. Salaries. The Board may fix the salaries of the officers from time to time and no officer shall be prevented from receiving that salary by reason of the fact that the officer is also a director of the Corporation. Section 4.11. Approval of Loans to Officers. The Corporation may, upon the approval of the Board alone, make loans of money or property to, or guarantee the obligations of, any officer of the Corporation or its parent or subsidiary, whether or not a director, or adopt an employee benefit plan or plans authorizing such loans or guaranties provided that: (i) the Board determines that such a loan or guaranty or plan may reasonably be expected to benefit the Corporation; (ii) the Corporation has outstanding shares held of record by 100 or more persons (determined as provided in § 605 of the California Corporations Code) on the date of approval by the Board; (iii) the approval of the Board is by a vote sufficient without counting the vote of any interested director or directors; and (iv) this Section 4.11 has been approved by the shareholders in accordance with §§ 315(b) and 152 of the California Corporations Code. ARTICLE V. EXECUTION OF CORPORATE INSTRUMENTS, RATIFICATION OF CONTRACTS, AND VOTING OF SHARES OWNED BY THE CORPORATION Section 5.01. Execution of Corporate Instruments. The Board may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, to execute any corporate instrument or document, or to sign the corporate name without limitation, except where otherwise provided by law, and that execution or signature shall be binding upon the Corporation. Unless otherwise specifically determined by the Board: (a) formal contracts of the Corporation, promissory notes, deeds of trust, mortgages, and other evidences of indebtedness of the Corporation, and other corporate instruments or documents requiring the corporate seal (except for share 15 certificates issued by the Corporation), and share certificates owned by the Corporation, shall be executed, signed, or endorsed by the President; (b) checks drawn on banks or other depositories on funds to the credit of the Corporation, or in special accounts of the Corporation, shall be signed in a manner, including a facsimile signature, and by a person or persons as shall be authorized by the Board; (c) dividend warrants, drafts, insurance policies, and all other instruments and documents requiring the corporate signature, but not requiring the corporate seal, shall be executed or signed in the manner directed by the Board; and (d) share certificates issued by the Corporation shall be signed jointly by (1) the President and(2) the Secretary. Section 5.02. Ratification by Shareholders. The Board may, in its discretion, submit any contract or act for approval or ratification by the shareholders at any annual shareholders' meeting or at any special shareholders' meeting called for that purpose. Any contract or act which shall be approved or ratified by the holders of a majority of the voting power of the Corporation represented at that meeting shall be as valid and binding upon the Corporation as though approved or ratified by each and every shareholder of the Corporation,unless a greater vote is required by law for this purpose. Section 5.03. Voting of Shares Owned by the Corporation. All shares of other corporations owned or held by the Corporation for itself or for other parties in any capacity shall be voted, and all proxies with respect to those shares shall be executed, by the person authorized to do so by resolution of the Board or, in the absence of such authorization,by the President. ARTICLE VI. SHARE CERTIFICATES Section 6.01. Form of Certificates. Share certificates of the Corporation shall be in a form and design as the Board shall determine. Each certificate shall state the certificate number, the date of issuance, the number, designation, class, and the name of the record holder of the shares represented by the certificate, the name of the Corporation, and if the shares of the Corporation are classified or if any class of shares has two (2) or more series, the legends required by Corp. Code, § 417. Section 6.02. Transfer of Shares. Shares may be transferred in any manner permitted or provided by law. Before any transfer of shares is entered upon the books of the Corporation or recognized by the designated transfer agent or registrar of the Corporation, or any new certificate is issued replacing an existing certificate, the existing 16 certificate, properly endorsed, shall be surrendered and canceled, except when the certificate has been lost or destroyed. Section 6.03. Lost Certificates. The Board may order a new share certificate to be issued in the place of any certificate alleged to have been lost or destroyed, but in every case the owner of the lost certificate may be required to give the Corporation a bond, with surety, in the form and amount as the Board may determine, as indemnity against any loss or claim that the Corporation may incur by reason of the issuance of a new certificate. ARTICLE VII. MISCELLANEOUS Section 7.01. Record Date for Purposes Other Than Notice and Voting. For purposes of determining the shareholders entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect to any other lawful action (other than an action by shareholders by written consent without a meeting), the Board may fix, in advance, a record date which shall not be more than sixty (60) nor less than ten (10) days before any action. Shareholders on the record date are entitled to receive the dividend, distribution, or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after the record date, except as otherwise provided by agreement or by applicable law. If the Board does not fix a record date, the record date for determining shareholders for any purpose shall be at the close of business on the day on which the Board adopts the applicable resolution or the sixtieth (60th) day before the date of that action, whichever is later. Section 7.02. Corporate Seal. The Corporation may have a corporate seal in such form as shall be prescribed and adopted by the Board. Section 7.03. Fiscal Year. The fiscal year of the Corporation shall end on the 31st day of December. Section 7.04. Annual Statement of General Information. The Corporation shall annually during the calendar month in which its original Articles of Incorporation were filed or during the preceding five (5) calendar months, file with the Secretary of State of the State of California, on the prescribed form, a statement setting forth the authorized number of directors, the names and complete business or residence addresses of all incumbent directors, the names and complete business or residence addresses of the Chief Executive Officer, the Secretary, and the Chief Financial Officer, the street address of the Corporation's principal executive office or principal business office in the State of California, and the general type of business constituting the principal business activity of 17 the Corporation, together with a designation of the agent of the Corporation for the purpose of service of process, all in compliance with Corp. Code, § 1502. Notwithstanding the preceding paragraph, if there has been no change in the information contained in the Corporation's last annual statement on file with the Secretary of State of the State of California, the Corporation may, in lieu of filing the annual statement described in the preceding paragraph, advise the Secretary of State, on the appropriate form, that no changes in the required information have occurred during the applicable period. Section 7.05. Maintenance and Inspection of Share Register. The Corporation shall keep either at its principal executive office or at the office of its transfer agent or registrar (if either be appointed), as determined by resolution of the Board, a record of its shareholders listing the names and addresses of all shareholders and the number and class of shares held by each shareholder. A shareholder or shareholders of the Corporation who holds at least five percent (5%) in the aggregate of the outstanding voting shares of the Corporation or who holds at least one percent (1%) of such voting shares and has filed a Schedule 14B with the Securities and Exchange Commission relating to the election of directors, may: (i) inspect and copy the records of shareholders' names, addresses, and shareholdings during usual business hours on five (5) days' prior written demand on the Corporation; (ii) obtain from the transfer agent of the Corporation, on written demand and on the tender of such transfer agent's usual charges for such list, a list of the names and addresses of the shareholders who are entitled to vote for the election of directors, and their shareholdings, as of the most recent record date for which that list has been compiled or as of a date specified by the shareholder after the date of demand. Such list shall be made available to any such shareholder by the transfer agent on or before the later of five (5) days after the demand is received or five (5) days after the date specified in the demand as the date as of which the list is to be compiled. The record of shareholders shall also be open to inspection on the written demand of any shareholder or holder of a voting trust certificate, at any time during usual business hours, for a purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust certificate. Any inspection and copying under this Section 7.05 may be made in person or by an agent or attorney of the shareholder or holder of a voting trust certificate making the demand. Section 7.06. Maintenance and Inspection of Bylaws. The Corporation shall keep at its principal executive office or, if its principal executive office is not in the State of California, at its principal business office in California the original or a copy of these Bylaws as amended to date, which Bylaws shall be open to inspection by the shareholders at all reasonable times during office hours. If the principal executive office 18 of the Corporation is outside the State of California and the Corporation has no principal business office in such state, then the Secretary shall, upon the written request of any shareholder, furnish to that shareholder a copy of these Bylaws as amended to date. Section 7.07. Maintenance and Inspection of Other Corporate Records. The accounting books and records and the minutes of proceedings of the shareholders, of the Board, and of any committee or committees of the Board shall be kept at such place or places as are designated by the Board or, in absence of such designation, at the principal executive office of the Corporation. The minutes shall be kept in written form, and the accounting books and records shall be kept either in written form or in any other form capable of being converted into written form. The minutes and accounting books and records shall be open to inspection upon the written demand of any shareholder or holder of a voting trust certificate, at any reasonable time during usual business hours, for a purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust certificate. The inspection may be made in person or by an agent or attorney and shall include the right to copy and make extracts. Such rights of inspection shall extend to the records of each subsidiary corporation of the Corporation. Section 7.08. Inspection by Directors. Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of every kind as well as the physical properties of the Corporation and each of its subsidiary corporations. Such inspection by a director may be made in person or by an agent or attorney. The right of inspection includes the right to copy and make extracts of documents. Section 7.09. Annual Report to Shareholders; Waiver. The Board shall cause an annual report to be sent to the shareholders not later than one hundred twenty (120) days after the close of the fiscal year adopted by the Corporation. Such report shall be sent at least fifteen (15) days (or, if sent by third-class mail, thirty-five (35) days) before the annual meeting of shareholders to be held during the next fiscal year and in the manner specified in Section 2.05 of these Bylaws for giving notice to shareholders of the Corporation. The annual report shall contain: (i) a balance sheet as of the end of the fiscal year; (ii) an income statement; (iii) a statement of changes in financial position for the fiscal year; and (iv) any report of independent accountants or, if there is no such report, the certificate of an authorized officer of the Corporation that the statements were prepared without audit from the books and records of the Corporation. 19 The foregoing requirement may be satisfied by the Corporation when the Corporation has an outstanding class of securities registered under Section 12 of the Securities Exchange Act of 1934 if the Corporation complies with 17 C.F.R. § 240.14a-16, as it may be amended from time to time, with respect to the obligation of a corporation to furnish an annual report to shareholders pursuant to 17 C.F.R. § 240.14a-3(b). The foregoing requirement of an annual report shall be waived so long as the shares of the Corporation are held by fewer than one hundred (100)holders of record. Section 7.10. Financial Statements. If no annual report for the fiscal year has been sent to shareholders, then the Corporation shall, upon the written request of any shareholder made more than one hundred twenty (120) days after the close of such fiscal year, deliver or mail to the person making the request, within thirty (30) days thereafter, a copy of a balance sheet as of the end of such fiscal year and an income statement and statement of changes in financial position for such fiscal year. If a shareholder or shareholders holding at least five percent (5%) of the outstanding shares of any class of stock of the Corporation makes a written request to the Corporation for an income statement of the Corporation for the three-month, six-month or nine-month period of the then current fiscal year ended more than thirty (30) days before the date of the request, and for a balance sheet of the Corporation as of the end of that period, then the Chief Financial Officer shall cause that statement to be prepared, if not already prepared, and shall deliver personally or mail that statement or statements to the person making the request within thirty (30) days after the receipt of the request. If the Corporation has not sent to the shareholders its annual report for the last fiscal year, the statements referred to in the first paragraph of this Section 7.10 shall likewise be delivered or mailed to the shareholder or shareholders within thirty (30) days after the request. The quarterly income statements and balance sheets referred to in this section shall be accompanied by the report, if any, of any independent accountants engaged by the Corporation or by the certificate of an authorized officer of the Corporation that the financial statements were prepared without audit from the books and records of the Corporation. Section 7.11. Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of construction, and definitions in the California Corporations Code as in effect from time to time shall govern the construction of these Bylaws and references to particular sections of the California Corporations Code shall include any successor provisions. 20 ARTICLE VIII. INDEMNIFICATION Section 8.01. Right of Indemnification. Each person who was or is a party or is threatened to be made a party to or is involved (as a party, witness, or otherwise), in any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that the person, or another person for whom that person is the legal representative, is or was a director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another foreign or domestic corporation, partnership,joint venture, trust, or other enterprise, or was a director, officer, employee, or agent of a foreign or domestic corporation that was a predecessor corporation of the Corporation or of another enterprise at the request of the predecessor corporation, including, without limitation, service with respect to employee benefit plans, whether the basis of the Proceeding is alleged conduct in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee, or agent (an "Agent"), shall be indemnified and held harmless by the Corporation to the fullest extent authorized by statutory and decisional law, as the same exists or may in the future be interpreted or amended (but, in the case of any such amendment or interpretation, only to the extent that the amendment or interpretation permits the Corporation to provide broader indemnification rights than were permitted prior to the amendment) against all expenses, liability, and loss (including, without limitation, attorney's fees, judgments, fines, ERISA excise taxes and penalties, amounts paid or to be paid in settlement, any interest, assessments, or other charges imposed, and any federal, state, local, or foreign taxes or liens imposed on any Agent as a result of the actual or deemed receipt of any payments under this Article) incurred or suffered by the person in connection with investigating, defending, being a witness in, or participating in, including, without limitation, appellate proceedings, or preparing for any of the foregoing in, any Proceeding ("Expenses"). The right to indemnification conferred in this Article shall be a contractual right. It is the Corporation's intention that these Bylaws provide indemnification in excess of that expressly permitted by Corp. Code, § 317 as authorized by the Corporation's Articles of Incorporation. Section 8.02. Authority to Advance Expenses. Expenses incurred by an officer or director, acting in that corporate capacity in defending a proceeding, shall be paid by the Corporation in advance of the final disposition of that proceeding; provided, however, that if required by the California Corporations Code, such expenses shall be advanced only on the delivery to the Corporation of an undertaking by or on behalf of that director or officer to repay the amount if it shall ultimately be determined that the director or officer was not entitled to be indemnified by the Corporation as authorized in this Article or otherwise. Expenses incurred by other Agents of the Corporation, or by the directors or officers not acting in their corporate capacity, including, without limitation, service with respect to employee benefit plans, may be advanced on the receipt of a similar undertaking, if required by law, and upon any other terms and conditions as the Board 21 deems appropriate. Any obligation to reimburse the Corporation for Expense advances shall be unsecured and no interest shall be charged these advances. Section 8.03. Right of Claimant to Bring Suit. If a claim under Section 8.01 or 8.02 of these Bylaws is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time subsequent to the running of that time period commence a proceeding against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, shall be entitled to be paid for the expense, including, without limitation, attorney's fees, of prosecuting the claim. It shall be a defense to any proceeding, other than an action brought to enforce a claim for expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Corporation, that the claimant has not met the standards of conduct that make it permissible under the California Corporations Code for the Corporation to indemnify the claimant for the amount claimed. The burden of proving that defense shall be on the Corporation. Neither the failure of the Corporation (including its Board, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of the action that indemnification of the claimant would be proper under the circumstances because the claimant has met the applicable standard of conduct set forth in the California Corporations Code, nor an actual determination by the Corporation (including its Board, independent legal counsel, or its shareholders) that the claimant had not met the applicable standard of conduct, shall either be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. Section 8.04. Provisions Nonexclusive. The rights conferred on any person by this Article shall not be exclusive of any other rights that the person may have or may later acquire under any statute, provision of the Articles of Incorporation, agreement, vote of the shareholders or disinterested directors, or otherwise, both as to any action in an official capacity and as to any action in another capacity while holding office. To the extent that any provision of the Articles of Incorporation, agreement, or vote of the shareholders or disinterested directors is inconsistent with these Bylaws, the provision, agreement, or vote shall take precedence. Section 8.05. Authority to Insure. The Corporation may purchase and maintain insurance to protect itself and any agent against any expense asserted against them or incurred by an agent, whether or not the Corporation would have the power to indemnify the agent against the expense under applicable law or the provisions of this Article, provided that, in cases where the Corporation owns all or a portion of the shares of the company issuing the insurance policy, the company or the policy must meet one of the two sets of conditions set forth in Corp. Code, § 317. Section 8.06. Survival of Rights. The rights provided by this Article shall continue as to a person who has ceased to be an Agent and shall inure to the benefit of the heirs, executors, and administrators of that person. 22 Section 8.07. Settlement of Claims. The Corporation shall not be liable to indemnify any Agent under this Article: (1) for any amounts paid in settlement of any action or claim effected without the Corporation's written consent, which consent shall not be unreasonably withheld; or (2) for any judicial award, if the Corporation was not given a reasonable and timely opportunity, at its expense, to participate in the defense of the action. Section 8.08. Effect of Amendment. Any amendment, repeal, or modification of this Article shall not adversely affect any right or protection of any Agent existing at the time of that amendment, repeal, or modification. Section 8.09. Subrogation. In the event of a payment under this Article, the Corporation shall be subrogated to the extent of that payment to all of the rights of recovery of the Agent, who shall execute all papers required and shall do everything that may be necessary to secure those rights, including, without limitation, the execution of any documents necessary to enable the Corporation effectively to bring suit to enforce those rights. Section 8.10. No Duplication of Payments. The Corporation shall not be liable under this .Article to make any payment in connection with any claim made against the Agent to the extent the Agent has otherwise actually received payment (under any insurance policy, agreement, vote, or otherwise) of the amounts otherwise indemnifiable pursuant to these Bylaws. ARTICLE IX. AMENDMENTS Section 9.01. Amendment by Shareholders. New Bylaws may be adopted or existing Bylaws may be amended or repealed by the vote or written consent of the holders of a majority of the outstanding shares entitled to vote, except as otherwise provided by law, these Bylaws, or the Articles of Incorporation. Section 9.02. Amendment by Directors. Subject to the rights of the shareholders as provided in Section 9.01, any Bylaw, other than a Bylaw or an amendment of a Bylaw changing the authorized number of directors, may be adopted, amended, or repealed by the Board. 23 3329104 ' WF$1 2019 ARTICLES OF INCORPORATION FNDORSED 100 Umt;e o'i[ne ba6patapi OF of the State of Camomia Evan Brooks Associates,Inc. OCT 2 2 2010 I The name of this corporation is Evan Brooks Associates,Inc. II The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: Daniel Yen 80 S.Lake Ave#600 Pasadena, CA 91101 IV This corporation is authorized to issue only one class of shares of stock, designated "common stock"; and the total number of shares which this corporation is authorized to issue is 100,000. V The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California Law. The corporation is authorized to provide indemnification of agents (as defined in Section 317 of the California Corporations Code) for breach of duty to the corporation and shareholders through bylaw provisions or through agreements with the agents, or both, in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code, subject to the limits such excess indemnification set forth in Section 204 of the California Corporati ns Code. Dated: 10/21/2010 Jenny Chacon, Inco or