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HomeMy WebLinkAboutIVY-IT INC.URANZE NOT ON FILE N-2020-066 'RKMAYN TPROCEED MAR 1 8 202�J ,'LERK OFJODPPIL 0'. QbC't�i4 �zTErttCn 6 CONSULTANT AGREEMENT FOR ANTI -GRAFFITI SERVICES INCORPORATING COMMUNITY DEVELOPMENT BLOCK GRANT REQUIREMENTS TFIIS AGREEMENT, made and entered into this I la' day of February, 2020, by and between Ivy -It Inc. a California corporation (hereinafter "Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a contractor having special skill and knowledge in the field of synthetic foliage products that can be used as a graffiti deterrent. B. The City, as an entitlement recipient and grantee of the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBG") Program, desires to enter this Agreement with the Consultant for the expenditure of CDBG funds in accordance with Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. ("CDBG Regs"). C. Consultant represents that Consultant is not listed as debarred, is able and willing to provide such services to the City, and will comply with the CDBG Regs. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Pursuant to this Agreement, Ivy -It Inc. agrees to provide and install a graffiti deterrent synthetic foliage product at locations determined by City. (See Proposal dated December 18, 2019 attached hereto and incorporated herein as Exhibit A). 2. COMPENSATION a. The total sum to be expended under this Agreement shall not exceed Fifty Thousand Dollars ($50,000.00) during the Term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall corrunence on the date first written above and terminate on November 30, 2020, unless terminated earlier in accordance with Section 9, below. The Term of this Agreement may be extended by a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; However, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulth19 therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of s1,000,000 per occurrence. Consultant shall supply City with a filly executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 10 d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement, (ii) Certificates of insurance shall be famished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination, Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise fiom the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of tine City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONSULTANT'S OBLIGATIONS A. No ConilIct. To the best of Consultant's knowledge, Consultant's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach trader any contract, agreement or order to which Consultant is a party or by which it is bound. B. No Bankruptcy. Consultant is not the subject of any current or threatened bankruptcy proceeding, C. No Pending Legal Proceedings/Debarment. Consultant is not the subject of a current or threatened litigation that would or may materially affect Consultant's performance under this Agreement, Consultant further acknowledges that it is not on the list of debarred contractors, D. No Pending Investigation, Consultant is mot aware that it is the subject of any current or threatened criminal or civil action investigation by any public agency, including without limitation a police agency or prosecuting authority, that would relate to affect performance of the Agreement or provision of services hereunder. E. Licensing. Consultant agrees to obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing its operations. Consultant shall ensure that its staff shall also obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing Consultant's operations hereunder. F. Audit Report Requirements. Consultant agrees that if Consultant expends Five hundred Thousand Dollars ($500,000.00) or more in federal funds, Consultant shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and published by the United States Office of Management and Budget. Consultant shall provide City with a copy of said audit by October 1 of the year following the program year in which this Agreement is executed, if applicable. G. Record Keeping/Reporting. Consultant shall keep and maintain complete and adequate records and reports to assist City in meeting and maintaining its record keeping responsibilities under Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. II. Access to Records. City and the United State Govermnett and/or their representatives shall have access for purposes of monitoring, auditing, and examining Consultant's activities and performance, to books, documents and papers, and the right to examine records of Consultant's subcontractors, bookkeepers and accountants, employees and participants in regard to said program. City and the United States Government and/or their representatives shall also schedule on -site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder are conducted or in which any of the records of Consultant are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. I. Location of Records/Required Length of Record Keeping. All accounting records, reports, and evidence pertaining to all costs, expenses and the funds received by Consultant and all documents related to this Agreement shall be maintained and kept available at Consultant's office or place of business for the duration of the Agreement and thereafter for five (5) years after completion of an audit in conformity with the CDBG Regs. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which City or any other governmental agency takes exception, shall be retained beyond the four (4) years until complete resolution or disposition of such appeals, litigation claims, or exceptions. In the event Consultant does not make the above -referenced documents available within the City of Santa Ana, California, Consultant agrees to pay all necessary and reasonable expenses incurred by City in conducting any audit at the location where said records and books of account are maintained. J. Confidentiality. Without prejudice to any other provisions of this Agreement, Consultant shall, where applicable, maintain the confidential nature of infornation provided to it concerning participants in accordance with the requirements of federal and state law. However, Consultant shall submit to City and or HUD or its representatives, all records requested, including audit, examinations, monitoring and verifications of reports submitted by Consultant, costs incurred and services rendered hereunder. K. Lobbying. Consultant certifies that it will comply with federal law (31 U.S.C. 1352) and regulations found at 24 CFR Part 87, which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the malting of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit a "Disclosure Form to Report Lobbying," in accordance with its instructions. L. Financial Interest. Consultant agrees that except for the use of funds to pay salaries and other related administrative or personnel costs, no persons who exercise or have exercised any fiunction with respect to activities assisted under the terms of this Agreement, or who are in a Position to participate in a decision -making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from a City -assisted activity of Consultant, either for themselves or those with whom they have family or business des, during their tenure or for one year thereafter. This prohibition applies to any person who is an agent, employee, consultant, officer, or elected or appointed official of City, or of any designated public agency, or the Consultant. 5it- M. Drug Free Wot*place. Consultant certifies that it has established the following drug- fiee workplace policy: 1. The unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the workplace for any employee involved in a federally funded program. 2. As an employee working in conjunction with a federally funded program, the employees of Consultant will be required to: a) Abide by the terns above in statement 1. h) Notify appropriate officials of Consultant and City officials of any criminal drug statute conviction for a violation occurring in the workplace not later than five days after such conviction. 3. The City and the United State Department of Housing and Urban Development will be notified within ten days after receiving notice of any such violation, 4. Within 30 days of receiving such notice, appropriate personnel action will be taken against such employee, up to and including termination. Each such employee shall be required to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or other appropriate agency. N. Nondiscrimination. Consultant agrees that no person on the ground of race, age, color, national origin, disability, religion or sex will be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in pail with finds received pursuant to this Agreement. Consultant affirms that it is an equal Opportunity employer and shall comply with all applicable federal, state and local laws and regulations. U. Conflict of Interest. Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any mammer with performance of services specified under this Agreement. Further, any conflict or potential conflict of interest of any employee/officer of Consultant shall be fully disclosed in writing prior to the execution of this Agreement and said writing shall be attached and deemed fully incorporated as a part hereof. Notice shall be sent by Consultant to City regarding any changes or modifications to its board of directors and list of officers. P. Prohibition of Nepotism. Consultant agrees not to lure or permit the hiring of any person to fill a position funded through this Agreement if a member of that person's immediate family is employed in an administrative capacity by Consultant. For the purposes of this section, the term "immediate family" means spouse, child, mother, father, brother, sister, brother-in-law, Sri sister -in -lacy, father-in-law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, ruece, nephew, stepparent and stepchild. The tern "administrative capacity" means having selection, hiring, supervisor or management responsibilities. 8. ASSIGNABILITY None of the duties of, or work to be performed by, Consultant under this Agreement shall be subcontracted or assigned to any agency, consultant, or person without the prior written consent of City. Consultant must submit all subcontracts and other agreements that relate to this Agreement to City. No subcontract or assigriment shall terminate or alter the legal obligations of Consultant pursuant to this Agreement. 9. TERMINATION A, This Agreement may be terminated on thirty (30) days' written notice by either party. In the event of such termination, Consultant shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement may be suspended or terminated by City upon five (5) days' written notice for violation by Consultant of Federal Laws governing the use of Community Development Block Grant Funds. In the event of such suspension or termination, Consultant shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. Pursuant to 24 CFR 85.43, in the event Consultant defaults by failing to fulfill all or any of its obligations hereunder, City may declare a default and ternnivation of this Agreement by written notice to Consultant, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of Buell notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, City shall be relieved of Further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by City in obtaining substitute performance. D. The grant of funds under this Agreement may be terminated for convenience in accordance with 24 CFR 85.44. 10. VENUE{JURISDICTION This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further Sty agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 11, VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 12, NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified trail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6956 With courtesy copies to: Neighborhood Initiatives / Planning and Building Agency City of Santa Ana 20 Civic Center Plaza (M-37) P.O. Box 1988 Santa Ana, California 927024988 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P,O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 6;lv-- To Consultant: Ivydt Inc. Attention: Sergio Martinez 112 Harvard Ave. #345 Claremont, CA 91711 13. VIISCELLANI 0US PROVISIONS a. Each undersigned represents and warrants that its signature'hereinbolow has tlue authority and right to bind their respective parties to each of the teens of this Agreement, andpower, shall indemnify Agency filly, including reasonable costs and attorney's fees, for any injuries or damages to Agency in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b, All Exhibits referenced herein and attached hereto shall be, incorporated as if fully set forth in the body of this Agreement. c. No delay or omission by either party hereto to exercise any right or power accruing upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the patties hereto of ally of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained. sfp- IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: PAMY GOMEZa0 City Clerk � a APPROVED AS TO FORM: City By: LLI Ryan O. RECCOMMENDED FOR APPROVAL: MINH THAI EXECUTIVE DIRECTOR PLANNING AND BUILDING AGENCY 10 CITY OF SANTA ANA KRISTINE RIDGE City Manager CONSULTANT By Sergio Martinez President — Ivy It Inc. Tax ID# S,- EXHIBIT A PROPOSAL 11 561v- i]p) y f-�u;miuwrl gel Exhibit A Ivy -It Procurement Proposal Submitted for Graffiti Resistaut Product to Santa Ana Neigld orliood Initiatives December I8 2019 Introduction This proposal is being submitted in response to the city of Santa Ana's Request for Proposals (RFP) dated November 26, 2019. Our fain understands that an exterior synthetic foliage product is desired to be installed in a variety of Santa Ana locations that are frequently tagged with graffiti. Ivy It is qualified to perform this work and is prepared to enter into a contract that provides for the installation of a synthetic foliage / ivy product at locations to be determined by staff and of various sizes, with work commencing in February 2020 and continuing through June 2020. Product Ivy It proposes to utilize our synthetic foliage product that can be used outdoors as a graffiti deterrent This product is suitable for a variety locations and on surface types ranging from cinder block, to wood fences and chain link. Our product is made of polyethylene - and is fire retardant, UV resistant, reusable, and graffiti resistant. Product options for your consideration include: 1) the ivy squares and; 2) creeping ivy vines . These products are more fully described in the attached product specifications. Services Offered Ivy It is prepared to provide and install our product as follows: 1) Tile Ivy Squares Product - $9.00 per square foot for product and installation 2) Creeping Ivy Vines Product - $25.00 per square foot for product and installation Our crews will consult with city staff on locations to install our product to identify the best treatment. Ivy It is prepared to mobilize our installation crew on weekdays and weekend days as deemed necessary and as city requested by staff. Ivy Iyprovides One Year Limited Warranty for our product and installation This warranty is more fully described in the attached material. Thank you. ��-��:uarn�annm t> Ivy -It Limited Warranty (Effective Date: January 1, 2019) Warranty: Thank you for your interest in the products and services of Ivy -It Inc. This Limited Warranty applies to physical goods, and only for physical goods, purchased from Ivy -it Inc. All labor costs involved with the Installation, removal of the affected product and/or reinstallation of any replacement will be the responsibility of the purchaser. What does this Limited Warranty cover? This Limited Warranty covers any defects in material or workmanship under normal use during the warranty period. During the warranty period, Ivy -It Inc. will replace, at no charge, products or parts of a product that proves defective because of improper material or workmanship, under normal use and maintenance. What will we do to correct problems? Ivy -It Inc. will replace the affected product at no charge, using new product How long does the coverage last? The Warranty Period for physical goods purchased from Ivy -It Inc. is 1 year from the date of purchase. What does this Limited Warranty not cover? This Limited Warranty does not cover any problem that is caused by: • Conditions, malfunctions or damage not resulting from defects in material or workmanship, • Damage resulting from negligence, improper maintenance or modification. • Damage by Acts of God: natural causes i.e. lightning, flood, or other natural disasters. • Damage caused by reflection (melting) or other flammable materials. Such reflection sources include but are not limited to: windows, vinyl fences, metal blocks, concrete/stucco walls, etc. d�_ • Damage that occurs during the shipping/transportation process, All shipping claims must be filed against the freight company involved. • Theft or loss of the product. • Use of chemicals and Improper cleaning methods. • Ivy -It Products are subject to normal wear and tear, Normal' wear and tear, including matted leaves Is not a manufacturing defect and therefore is not covered by this warranty. • Visual lines caused by variation of the color of leaves and manufacturer applications are not considered a defect as there Is no deterioration of actual leaf itself and it is a common occurrence among all tufted products. • The Warranty service is void if the product is altered or has any labels damaged or tampered. Limitations on Liability: Purchaser must promptly inspect all products upon delivery. Anything herein to the contrary notwithstanding, to the extent that any defects, shortages, or non.conformities In the products are discoverable by inspection upon delivery of the products, all obligations of Ivy -it Inc. to purchaser with respect to such defects, shortages, and non -conformities, unless purchaser notifies Ivy -It Inc. of such defects, shortages, or non -conformities in writing within 30 days after the date of purchase. Assignment: Purchaser may not transfer, convey, or otherwise assign all or any of its rights under this warranty without prior written consent of Ivy -it Inc. Any such transfer or assignment without prior written consent shall be null and void. Thank you[ SM MAYOR Miguel A. Pulldo MAYOR PRO TEM Juan Villages COUNCILMEMBERS Phil Bacerra Nelida Mendoza David Penaloza Vicente Sarmiento Jose Solorio CITY OF SANTA ANA Planning and Building Agency 20 Civic Center Plaza . P.O. Box 1988 Santa Ana, California 92702 w .Santa-ana.orcloba October 6, 2020 Sergio Martinez Ivy -It, Inc. 112 Harvard Ave., Suite 345 Claremont, CA 91711 RE: Termination of Agreement #N-2020-066 Dear Mr. Martinez: CITY MANAGER Kristine Ridge CITY ATTORNEY Sonia R. Carvalho CLERK OF THE COUNCIL Daisy Gomez Pursuant to Section 9A. ("Termination") of Agreement No. N-2020-066 entered into by Ivy -It, Inc. ("Consultant") and the City of Santa Ana ("City") dated February 11, 2020, the City is hereby serving you with this 30 day notice of termination. If you have any questions regarding this matter, please contact Scott Kutner in the Planning and Building Agency at 714-667-2259. ATTEST:-10 "' CITY OF SANTA ANA kt=s� Daisy Gomez Stine Ridge Clerk of the Council City Manager APPROVED AS TO FORM: RECOMMENDED BY: Sonia R. Carvalho City Attorney p Minh Thai Executive Director Lisa E. Storck Planning & Building Services Agency Assistant City Attorney SANTA ANA CITY COUNCIL Miguel A. Pulitlo Juan Villegas vaenle Edd-rent. David Ponalore Jose Selene Phil Bacerra Won Mendore Mayor Maya, Pro Tend, Wood! 5 Ward Wartl2 Ward Wall Wand meultlofalsanle-ana oru 'wilaoau0santaana Dm enrorolsanla-and ore duena1odh0an1e-anaor isolgirsRsanta-ana om oIadanaa... ta-an, do gmendorer3rsan r MEMORANDUM To: City Manager Date: October 14, 2020 Scott Kutner, Neighborhood Initiatives From: Planning & Building Agency C6Q Subject: Termination of Contract N-2020-066 The past two years, the City Council has approved CDBG funding for Neighborhood Initiative sponsored improvements to reduce graffiti and vandalism in the total amount of $100,000. Based on the scope of the Logan Neighborhood improvements discussed among members of EMT, the funding for these services will now be redirected to focus on Lincoln Avenue in Logan along the UPRR ROW. The Public Works Agency will be taking the lead to re -bid the scope of work and contract management. Ivy -It Inc, our contractor for the earlier scope of work has not yet been issued a Notice to Proceed - therefore, please sign the attached contract termination letter drafted by the City Attorney and call with any questions. Thanks. Cc: Minh Thai, Executive Director— P&BA