Loading...
21-0203_SHUSTER ADVISORY GROUP, LLC_Professional Services AgreementCITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as of February 3, 2021 by and between the City of San Juan Capistrano, a public agency organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, California 92675 ("City"), and Shuster Advisory Group, LLC, a California limited liability company with its principal place of business at 225 South Lake Avenue, Suite 600, Pasadena, California 91101 (hereinafter referred to as "Consultant"). City and Consultant are sometimes individually referred to as `Party" and collectively as °Parties° in this Agreement. RECITALS A. City is a public agency of the State of California and is in need of professional services desirous of obtaining professional services necessary to perform fiduciary and non - fiduciary services for the retirement plans as specified in Exhibit A. B. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. C. City and Consultant understand that the Plans are exempt from ERISA and are governmental plans that are subject to the provisions of the California Constitution and State of California Government Code related to fiduciary duties applicable to participant directed retirement plans, and the plans are intended to comply with California Government Code section 53213.5 and the referenced applicable Department of Labor ERISA Section 404(c) guidelines. D. Consultant is qualified by virtue of experience, training, education and expertise to provide these services. E. City acknowledges that Consultant has provided pro-bono services to City as it relates to a request for information and audit of their current retirement plans and associated record keepers, has also completed an initial request for proposal and provided results to the City, as well as assisted in creating reports for City to use in relation to this Agreement. F. City acknowledges that, Consultant will provide services outlined in Exhibit A, but is not acting as the investment fiduciary to the plans until the City has decided on the record keeper and implemented the investment menu created by Consultant. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit "A." 2. Compensation. 1 a. Consultant shall receive payment for such services in accordance with the Fee Schedule set forth in Exhibit "B" b. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Payments to Consultant for work performed will be made on a monthly billing basis or at the Consultant's discretion the billing period may be adjusted to quarterly. 3. Additional Wark. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner. a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for seven (7) years from the date of final payment under the contract for inspection by City. 5. Timing of Performance. Time is of the essence with respect to Consultant's performance of the Services required by this Agreement. Consultant shall diligently and timely pursue and complete the performance of the services required of it by City, which in its sole discretion may extend the time for performance of any service. 6. Delays in Performance. a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage orjudicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Compliance with Law. a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. a. Standard of Care Consultant's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 9. Assignment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. Independent Contractor Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability (1) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than speed herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following: 3 s (1) Bodily Injury and Property Damage (2) Personal Injury/Advertising Injury (3) Contractual Liability with respect to this Agreement (4) Property Damage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability (i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non -owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers' Compensation/Employees Liability (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (it) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the "Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of California and any 4 acts amendatory thereof, and Employer's Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers' compensation coverage of the same type and limits as specified in this section. d. Professional Liability (Errors and Omissions At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy must "pay on behalf of" the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required (i) The following insurance limits are required for the Agreement: Combined Single Limit Commercial General Liability $1,000,000 per occurrencel$2,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 combined single limit Employer's Liability $1,000,000 per accident or disease Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all Insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional 6 insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g. Policy Provisions Required (i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant's policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifying Insurers (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance 6 through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Additional Insurance Provisions (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. Subconsuitant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. Indemnification. a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City's choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's services, this Agreement, including without limitation the payment of all damages, expert witness fees and attorney's fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. b. If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's performance of "design professional" services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant's indemnification shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault. C. As investments are subject to various market, political, currency, economic, and business risks, and may not always be profitable, City agrees to indemnify Consultant and all its officers, employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from personal investment selections of plan participants and the performance of such investments, except for such loss or damage arising from Consultant's negligence or willful misconduct 13. California Labor Code Requirements. a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 at seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects ("Prevailing Wage Laws"). If the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable "public works" or .maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant's performance of services, including any delay, shall be Consultant's sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. 14. Verification of Emolovment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub- subconsultants to comply with the same. 15. Reserved. 16. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of orange, State of California. 17. Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving thirty (30) calendar days written notice to Consultant. In such event, City may request copies of all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. Consultant shall receive payment for services rendered for any portion of the work completed prior to termination as specified in Exhibit B, Section 3. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty- (30) calendar days' written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. 18. Documents. Except as otherwise provided in "Termination or Abandonment," above, copies of all field notes, written reports, Drawings and Specifications and other documents, produced or developed by CONSULTANT shall, upon payment in full for the services described in this Agreement, be furnished to the City upon City's request no later than 30 days following the termination or abandonment date. Consultant will retain all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for a period of seven -years per Securities and Exchange Commission books and records retention requirements. 19. Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, or emailed addressed to: CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attn: Sam Penrod spenrod@sanjuancapistrano.org and shall be effective upon receipt thereof. 22. Third Party Rights CONSULTANT: Shuster Advisory Group, LLC 225 South Lake Avenue, Suite 600 Pasadena, California 91101 Attn: Mark Shuster mshuster@sfgrpc.com Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 23. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24. Entire Agreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 25. Severability 10 The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal. 26. Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 27. Non -Waiver None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing. 26. Time of Essence Time is of the essence for each and every provision of this Agreement 29. Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. [SIGNATURES ON FOLLOWING PAGE] 11 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO By: er(am' el City Manager Attest: By: M ria Moms City -Clerk Approved as to form: Bet st 9 Kriqpcir LLP City Attorney SHUSTER ADVISORY GROUP, LLC By: / Mark Shus er Managing Member IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS By: Sam Penrod Human ResourcesfRisk Manager 12 EXHIBIT A Scope of Services Consultant will perform the following fiduciary and non -fiduciary services for the plans listed in Exhibit C: 1. Audit Services (Non -fiduciary) a) Incumbent vendor contract review b) Incumbent vendor fee review c) Incumbent vendor qualitative and quantitative investment analysis d) Present audit results to City with observations and recommendations 2. Request for Proposal (RFP) Services (Non -fiduciary) a) Conduct RFP on behalf of City b) Negotiate contract terms and fees on behalf of City c) Present RFP results to City d) Obtain follow-up information requested by City from competitive bidders e) Coordinate finalist meetings on behalf of City (if requested by City) D Notify bidders of City's vendor decision 3. Plan Conversion Services a) Coordinate conversion activities with City, Consultant and vendor (non - fiduciary) b) Attend conversion conference calls with City and vendor (non -fiduciary) c) Review draft vendor services, investment and fee agreements to ensure they match final proposal from vendor (non -fiduciary) d) Act as liaison between City, City Attorney and vendor supporting contract reviews (non -fiduciary) e) Plan design consultation (non -fiduciary) f) Review vendor participant communications and provide suggested edits (non -fiduciary) Develop custom participant communications and presentations (non - fiduciary) 13 g) Coordinate and attend participant education meetings (non -fiduciary) h) Develop an investment policy statement (IPS). The IPS establishes the investment policies and objectives for the Plan and shall set forth the asset classes and investment categories to be offered under the Plan, as well as the criteria and standards for selecting and monitoring the investments. CITY shall have the ultimate responsibility and authority to establish such policies and objectives and to adopt the investment policy statement (fiduciary) i) Consistent with the Investment Policy Statement, select the initial investment options within the Plan(s) (fiduciary) 4. Post-Conversion/Ongoing Services a) Prepare periodic investment advisory reports that document consistency of fund management and performance to the guidelines set forth in the IPS and be responsible for making additions/deletions thereto. Reports will include: Market Overview, In -Depth Portfolio Summary, Plan Asset Allocation Analysis and Fund Performance Comparison to the Index (fiduciary) b) Meet with City on a periodic basis to discuss reports and changes (fiduciary) c) Select a default investment for participants who fail to make an investment election (fiduciary) d) Annually review the IPS with City to ensure it continues to meet the City's needs (fiduciary) e) Coordinate the investment review meetings, record meeting minutes and provide minutes to attendees (fiduciary) f) Assist in the education of the participants in the Plan about general investing principles and the investment alternatives (non -fiduciary) g) Distribute plan level newsletters to City (non -fiduciary) h) Distribute employee level memos to City for distribution to their participants (non -fiduciary). I) Plan design consulting as needed (non -fiduciary) j) Provide vendor management/issue resolution to City (non -fiduciary) k) Provide City with custom communications when needed (non -fiduciary) 1) Assist City in their communications with record -keepers and/or plan providers (non -fiduciary) m) Provide City with compliance updates and best practices (non -fiduciary) 14 n) Provide initial RFP services and plan fee negotiations on behalf of City (non -fiduciary) EXHIBIT A-1 - CONSULTING & FIDUCIARY ACKNOWLEDGEMENTS City acknowledges the following: t. City, as the responsible plan fiduciary for the City's 457(b) Plan, 457(b) PTS Plan, 401(a) Plan, and Retiree MedicaURHS Plan (herein referred to as the "Plans"), has the authority to designate investment alternatives under the Plan and the related trust(s), and to enter into an Agreement with third parties to assist in these and related duties. 2. In performing its Fiduciary Services described in Exhibit A, Consultant is acting as a fiduciary not as an investment manager who directs the investment of the Plans and as a registered investment adviser under the Investment Advisers Act of 1940. 3. In performing the Non -Fiduciary Services described in Exhibit A, Consultant is not acting as a fiduciary of the Plans. 4. In performing both Non -Fiduciary Services and Fiduciary Services described in Exhibit A, Consultant does not act as, nor has Consultant agreed to assume the duties of, a trustee or a Plan Administrator, and Consultant has no discretion or responsibility to interpret the Plan documents, to determine eligibility or participation under the Plans, or to take any other action with respect to the management, administration or any other aspect of the Plans. 5. Consultant will perform the Fiduciary Services described in Exhibit A to the Plans in accordance with the standard of care of the prudent man rule set forth in ERISA Section 404(a)(1)(B) or comparable state law. 6. Consultant will perform the Non -Fiduciary Services described in Exhibit A using reasonable business judgment and shall not be liable for any liabilities and claims arising thereunder, unless directly arising from Advisers intentional misconduct or negligence. 7. Consultant does not provide legal or tax advice. 8. Investments are subject to various market, political, currency, economic, and business risks, and may not always be profitable. As a result, Consultant does not and cannot guarantee financial results. 9. Consultant may, by reason of performing services for other clients, from time to time acquire confidential information. City acknowledges and agrees that Consultant is unable to divulge to City or any other party, or to act upon, any such confidential information with respect to its performance of this Agreement. 10. Consultant is entitled to rely upon all information provided to Consultant (whether financial or otherwise) from reputable third parties or by City, the City's representatives or third - party service providers to City, or the Plans, without independent verification. City agrees to promptly notify Consultant in writing of any material change in the financial and other Information provided to Consultant and to promptly provide any such additional Information as may be reasonably requested by Consultant. 15 11. Consultant will not be responsible for voting (or recommending how to vote) proxies of any publicly traded securities (including mutual fund shares) held by the Plans (or its respective trust). Responsibility for voting proxies of investments held by the Plans or the plan trusts remain with City (or, if applicable, the Plan participants). 12. City understands that Consultant (i) may perform other services for other clients, (ii) may charge a different fee for other clients, and (iii) may give advice and take action that is different for each client even when retirement plans are similar. 13. The person signing the Agreement on behalf of City has all necessary authority to do so. 14. The execution of this Agreement and the performance thereof is within the scope of the investment authority authorized by the governing instrument and/or applicable laws. The signatory on behalf of City represents that the execution of the Agreement has been duly authorized by appropriate action and agrees to provide such supporting documentation as may be reasonably required by Consultant. 15. The Plans and related trusts permit payment of fees out of Plan assets. City has determined that the fees charged by Consultant are reasonable and are the obligation of the Plans; however, if City desires, it may pay the fees directly, rather than with plan assets. 16. City acknowledges receipt and undertakes to review and consider the disclosures made by Consultant (including in this Agreement, the Form ADV Part 2 and Consultant Privacy Policy), in particular the portions related to services, compensation, and potential conflicts of interest, as well as the remainder of the disclosures concerning, among other matters, background information such as educational and business history, business practices such as the types of advisory services provided, the methods of securities analysis used, and the like. Further, City consents to electronic delivery (via email or other generally accepted method) of current and future distributions of Consultant's Form ADV Part 2 and Privacy Policy. Consent to electronic delivery may be canceled at any time by sending a written notice to Consultant. 17. City acknowledges that Consultant has no responsibility to provide any services related to the following types of assets: employer securities; real estate (except for real estate funds and publicly traded REITs); stock brokerage accounts or mutual fund windows; in -plan retirement income annuity products; participant loans; non -publicly traded partnership interests; other non -publicly traded securities (other than collective trusts and similar vehicles); or other hard -to -value securities or assets. Such assets (except for real estate funds, publicly traded REITs, and collective trusts and similar vehicles) shall be referred to collectively as "Excluded Assets." 18. Consultant agrees to take reasonable steps to protect Private Participant Information and Plan Investment Data in its possession; Consultant is not responsible for the assessment of systems and procedures of third parties for the protection of plan and participant data; Consultant is not responsible for the actions by, or the failure to act by City, by other service providers, or by participants of the Plans to protect Data; 16 Consultant shall have no liability in the event of a Data breach or a violation of participant privacy rights (under the California Consumer Privacy Act or otherwise) unless said breach is the direct result of negligence, recklessness, or willful misconduct of an employee of Consultant. 17 EXHIBIT B FEE SCHEDULE 1. All fees are billed in arrears. 2. The initial fee will be the amount, prorated for the number of days included in the initial billing period from the effective payment start date. 3. If this Agreement is terminated prior to the end of a billing period, Consultant shall be entitled to a fee, prorated for the number of days in the billing period prior to the effective date of termination. 4. All fees will be due and payable within 45 days and are payable to "Shuster Advisory Group, LLC." 5. The fee for service shall be as follows: Beginning with the effective date of this Agreement and continuing until the earlier of the date the plan is converted to a new record -keeper and assets from the prior record -keeper are transferred, the date the plan is converted to a new record -keeper and the first payroll deferral is processed by the new record -keeper, or the date it is decided to remain with the incumbent record -keeper and new pricing is implemented, if applicable, (hereafter known as the "Conversion Date) the fee for service shall be $2,083.33 per month. Fees will accrue and will be deducted from assets of the Plans, as permitted, and be paid to the Consultant by the record -keeper upon the Conversion Date or soon thereafter. After the "Conversion Date", the fee for service shall be $2,083.33 per month. Fees will be deducted from assets of the Plans, as permitted, and will be paid to Consultant by the record -keeper. At Consultant's discretion the billing period may be adjusted to quarterly. 18 EXHIBIT C CLIENT/PLAN SPONSOR—PLAN INFORMATION City/Plan Sponsor. City of San Juan Capistrano, CA Type of Plans) Covered in this Type of Plan Professional Services Agreement 0401(k) 1@457(b) 0401(a) 0403(b) ©Part-time Seasonal (OBRA) ®Retiree Health Savings []Defined Benefit Plan ❑Other. Mailing Address City State Zip Code 32400 Paseo Adelanto San Juan CA 92675 Capistrano Legal Address (%Same as Mailing City State Zip Code Address) The City represents and Consultant acknowledges the Plans listed above are governmental plans as that term is defined under Section 414(d) of the Internal Revenue Code ('Code) and, consequently, exempt from certain ERISA provisions that do not apply to governmental plans. Rather, the Plans are goVemed by California law and applicable provisions in the Internal Revenue Code that apply to governmental plans, including section 401(a) and 457(b) of the Code. 19