WHEREAS, CITY is in need of financial advisory services in relation to the Issuance of Solid Waste Revenue Refunding Bonds to refund existing Utilities Revenue Bonds, 1992 Series B ("the Bonds"); and

WHEREAS, ADVISOR possesses the skill and expertise to provide the required services;

NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.

1. Services by ADVISOR

ADVISOR shall provide the following services to CITY: bond structuring, cash flow analysis, preparation and participation in rating agency and bond insurer presentations, assistance in drafting the Official Statement and bond documents, work with City's Underwriter to assure that the proposed pricing for the Bonds is at least comparable to the pricing CITY wold have received in a competitive sale, and assisting in coordinating the closing. ADVISOR shall determine the method, details and means of performing the services.

2. Time for Performance

The term of this Agreement shall be from the date of Agreement execution through the date of issuance of the Bonds, unless otherwise terminated.

3. Duties of CITY

CITY shall supply any documents or information available to City required by ADVISOR for performance of its duties. Any materials provided shall be returned to CITY upon completion of the work.

4. Compensation

CITY agrees to pay ADVISOR a fee of Sixty Thousand and no/100 Dollars ($60,000.00). Direct expenses shall be reimbursed at actual cost up to One Thousand Five Hundred and no/100 Dollars ($1,500.00). Total compensation shall not exceed Sixty One Thousand Five Hundred and no/100 Dollars ($61,500.00).

Payment of said compensation shall be entirely contingent, shall be due and payable upon the delivery of the bonds and shall be payable solely from the proceeds of the Bonds and from no other funds of CITY.

5. Ownership of Documents

CITY shall have full and complete access to ADVISOR's working papers and other documents during progress of the work. All documents of any description prepared by ADVISOR shall become the property of the CITY upon issuance of the Bonds and upon payment in full to the ADVISOR. ADVISOR may retain a copy of all materials produced pursuant to this Agreement.

6. Conflict of Interest

No officer or employee of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement, ADVISOR shall not accept employment or an obligation which is inconsistent or incompatible with ADVISOR's obligations under this Agreement.

7. Confidential Information

ADVISOR shall maintain in confidence and at no time use, except to the extent required to perform its obligations hereunder, any and all proprietary or confidential information of CITY of which ADVISOR may become aware in the performance of its services.

8. Compliance with Laws

(a) ADVISOR shall strictly adhere to all state and federal laws with respect to discrimination in employment and shall not discriminate against any individual on the basis of race, color, religion, gender, sexual orientation, marital status, national origin, age or disability.

(b) ADVISOR shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.

9. Independent Contractor

ADVISOR is acting as an independent contractor in furnishing the services or materials and performing the work required by this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and ADVISOR. ADVISOR is responsible for paying all required state and federal taxes.

10. Indemnity

ADVISOR agrees to indemnify, defend and hold harmless CITY and its officers, officials, employees and volunteers from and against claims, damages, losses and expenses, including attorney fees, arising out of the performance of the work described herein, caused in whole or in part by any negligent act or omission of ADVISOR, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of CITY.

11. Insurance

ADVISOR shall take out and maintain during the life of this Agreement policies of insurance as specified in Exhibit "A" attached and incorporated by reference, and shall provide all certificates and endorsements as specified in Exhibit "A."

12. CITY Representative

Mary Bradley, as the City Manager's authorized representative, shall represent CITY in all matters pertaining to the services to be rendered under this Agreement. All requirements of CITY pertaining to the services and materials to be rendered under this Agreement shall be coordinated through the CITY representative.

13. ADVISOR Representative

Peter Ross shall represent ADVISOR in all matters pertaining to the services and materials to be rendered under this Agreement; all requirements of ADVISOR pertaining to the services or materials to be rendered under this Agreement shall be coordinated through the ADVISOR representative.

14. Notices

All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class with postage prepaid, or by sent by commercial courier, addressed as follows:

To CITY: Mary Bradley, Director of Finance
CITY OF SUNNYVALE
P. O. Box 3707
Sunnyvale, CA 94088-3707

To ADVISOR: Peter Ross, Principal
ROSS FINANCIAL
1736 Stockton Street, Suite One
San Francisco, CA 94133

Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail or commercial carrier, or hand delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of two days after mailing, unless such date is a date on which there is no mail service. In that event communication is deemed to occur on the next mail service day.

15. Assignment

Neither party shall assign or sublet any portion of this Agreement without the prior written consent of the other party.

16. Termination

If ADVISOR defaults in the performance of this Agreement, or materially breaches any of its provisions, CITY at its option may terminate this Agreement by giving written notice to ADVISOR. If CITY fails to pay ADVISOR, ADVISOR at its option may terminate this Agreement if the failure is not remedied by CITY within thirty (30) days from the date payment is due.

Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason upon ten (10) days' written notice to ADVISOR. In the event of such termination, ADVISOR shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. ADVISOR shall present CITY with any work product completed at that point in time.

17. Entire Agreement; Amendment

This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties.

18. Miscellaneous

Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. This Agreement shall be governed and construed in accordance with the laws of the State of California.

IN WITNESS WHEREOF, the parties have executed this Agreement.

ADVISOR shall take out and maintain during the life of the Agreement Workers’ Compensation and Employer’s Liability Insurance for its employees. The amount of insurance shall not be less than $1,000,000 per accident for bodily injury or disease.

ADVISOR shall take out and maintain during the life of the Agreement Professional Liability Insurance in an amount not less than $1,000,000.

ADVISOR shall take out and maintain during the life of the Agreement such Commercial General Liability Insurance as shall protect ADVISOR, CITY, its officials, officers, directors, employees and agents from claims which may arise from services performed under the Agreement, whether such services are performed by ADVISOR, by CITY, its officials, officers, directors, employees or agents or by anyone directly or indirectly employed by either. The amount of insurance shall not be less than the following: Single Limit Coverage Applying to Bodily and Personal Injury Liability and Property Damage: $1,000,000.

The liability insurance shall include, but shall not be limited to:

• Protection against claims arising from bodily and personal injury and damage to property, resulting from ADVISOR's or CITY's operations and use of owned or non-owned vehicles.
• Coverage on an "occurrence" basis.
• Broad form property damage liability. Deductible shall not exceed $5000 without prior written approval of CITY.
• Notice of cancellation to CITY's Purchasing Division at least thirty (30) days prior to the cancellation effective date.

The following endorsements shall be attached to the liability insurance policy, and copies shall be submitted with the Certificate(s) of Insurance:

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