Loading...
CC 20170117 F Stay Green Change OrderRANCHO PALOS VERDES CITY COUNCIL AGENDA REPORT AGENDA DESCRIPTION: MEETING DATE: 01/17/2017 AGENDA HEADING: Consent Calendar Consideration and possible action to award a Change Order and Lease Agreement to Stay Green, Inc., for Labor and Equipment for City Landscaping, General Maintenance, and Litter & Trash Services. RECOMMENDED COUNCIL ACTION: (1) Award a Change Order to the proposal by Stay Green, Inc. to accommodate the City's requirement for the vendor to lease land for equipment storage and operations in the performance of their previously -awarded Maintenance Agreement; (2) Approve the Lease Agreement with Stay Green, Inc.; and, (3) Authorize the Mayor and City Clerk to execute the Modified Maintenance Agreement and Lease Agreement, subject to approval as to form by the City Attorney. FISCAL IMPACT: The total cost of the change order proposal over the base three- year agreement is $308,711.52 with an annual cost of $102,903.84. This cost will be partially offset by payment from the vendor for rent and utilities. The vendor will be responsible for additional expenses including security fencing and unsecured property taxes. Rent payment to the City over the base three-year agreement will total $240,795 and utilities are estimated to total $14,400 over the same period. No additional funding is required to accommodate this change order in FY16-17. Amount Budgeted: None Additional Appropriation: None Account Number(s): None ORIGINATED BY: Sean Larvenz, Maintenance Superintendent Y. REVIEWED BY: Michael Throne, PE, Director of Public Works APPROVED BY: Doug Willmore, City Manager ATTACHED SUPPORTING DOCUMENTS: A. Draft Change Order Proposal (page A-1) B. Draft Maintenance Agreement/Lease — Stay Green, Inc. (page B-1) BACKGROUND AND DISCUSSION: The City Council awarded a maintenance contract to Stay Green, Inc. (Stay Green) for Labor and Equipment for City Landscaping, General Maintenance, and Litter & Trash 1 Services on July 19, 2016. The City Attorney identified concerns that the relationship between the City and Stay Green as described in the maintenance contract may place the City at risk of Stay Green's personnel being considered City employees rather than independent contractors. The City Attorney has recommended that a clear line of demarcation be drawn between the City and Stay Green to make it clear that Stay Green and its personnel are independent contractors of the City. To that end, a modified maintenance contract has been prepared. In addition to modifying how Stay Green employees are monitored by Public Works personnel, the modified maintenance contract sets aside a defined area of the City's corporation yard area to be leased to Stay Green. The City Attorney's Office drafted a lease of the defined area of the City's corporation yard, and Stay Green has tentatively agreed to the terms. This lease would satisfy the contract's intent by having the Stay Green's equipment and materials stored within the City for rapid response to emergencies and for contract performance efficiency, and create a defined boundary between the City and Stay Green. The vendors' original bid of $2,841,189 did not include the cost associated with the lease. These costs are expected to include such additional items as security fencing and payment of unsecured property taxes, to be paid for by Stay Green. Consequently a change order to the Stay Green agreement is necessary to modify the contract to include the leased area, limited storage facilities and a general maintenance repair shop. The City requested the vendor provide a proposal that will accommodate the increase in cost associated with this change order (Attachment A). The leased area change order will provide 26,755 square feet of laydown area and one building for the vendor to establish a maintenance repair shop. The draft lease agreement (Attachment B) sets the rental terms at $3.00/square foot per year for a period of 3 years with up to 3 one-year options to run concurrently with possible Maintenance Agreement extensions should they be exercised. The lease will result in an annual payment of $80,265. Staff recommends that a change order to the Stay Green agreement be approved and executed in the amount of $308,711.52 (or an annual cost of $102,903.84). ALTERNATIVES: In addition to the Staff recommendation, the following alternative actions are available for the City Council's consideration: 1. Approve the lease and proposal with amended terms and/or conditions. 2. Do not approve the lease and proposal and authorize Staff to pursue contract extension amendments for current service providers. 3. Take other action as deemed appropriate by the City Council. 2 Attachment A Draft Change Order Proposal A-1 Stay Green Inc. ,he Natural Choice For Professional Landscape Services LANDSCAPE MAINTENANCE CONTRACT ADDENDUM City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, CA 90275 Addendum to existing monthly maintenance contract to lease 26,755 square feet of land, Due to the additional requirement to lease space at City Hall throughout the performance period of the agreement, which was not included in the original bid, Stay Green Inc. is proposing an increase to the base bid of $102,903.84 annually, for a total increase of $308,711.52 over the 3 year base. Increase Monthly Maintenance Fee: $ 8,575.32 Current Monthly Maintenance Fee: $ 78,922.16 New Monthly Maintenance Fee: $ 87,497.48 Service in accordance with this Agreement shall commence on 02/01/17 at the aforedescribed fee. OWNER\MANAGER STAY GREEN INC 26415 Summit Circle Santa Clarita, CA 91350 City of Rancho Palos Verdes 30940 Hawthorne Blvd Rancho Palos Verdes, CA 90275 Sean Larvenz 310-544-5221 SIGNATURE: DATE: Phone Number (800) 858-5508 Fax Number (877) 317-8437 Landscape Contractors License #346620 Pest Control Operators License #32488 Pest Control Advisors License #04181 Certified Arborist License #WC -4375 SIGNATURE: f3lb �Z-570�� DATE: 12/19/2017 Stay Green Inc. 1 26415 Summit Circle, Santa Clarita, CA 91350 • (800) 858-5508 • (661) 291-2800 • Fax: (661) 705-2089 wwA Q w.stay&reen.com • C-27, C-61 License #346620 —2 Attachment 6 Draft Maintenance Agreement/Lease Stay Green, Inc. CONTRACT SERVICES AG, EEMENT By and Between CITY OF RANCHO PALOS VERDES N, INC. AGREEMENT FOR CONTRACT SERVICES BETWEEN THE CITY OF RANCHO PALOS VERDES AND STAY GREEN, INC. THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and entered into this day of , 2017 by and between the City of Rancho Palos Verdes, a California municipal corporation ("City") and Stay Green, Inc. ("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 Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement. B. Consultant, following submission of a pro 1 o *d for the performance of the services defined and described particularly in Article 1 of this A ent, was selected by the City to perform those services. C. Pursuant to the City of Rancho Palos Verdes' Municipal Code, City has authority to enter into and execute this Agreement. %'N 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 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. 'N 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. A,,, 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 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. 01203.0006/302166.6 -2- 4 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 contractors. 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 Three Million, Two Hundred Twenty Four Thousand, Nine Hundred Nine Dollars and Fifty two Cents ($3,224,909.52) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1.8. 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 01203.0006/302166.6 -3- B-5 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 uch coordination, Consultant shall not be entitled to any additional compensation for attendi id meetings. 2.4 Invoices. Each month Consultant shall furnish to City an original involicfor 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. ARTICLE 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 01203.0006/302166.6 -4- B-6 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 (18 0) days cumulatively. 3.3 Force Majeure. 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, exce t as otherwise provided in the Schedule of Performance (Exhibit "D" ). ARTICLE 4. COORDINA N 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: (Name) (Title) (Name) (Title) 01203.0006/302166.6 -5- B-7 (Name) (Title) 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. Nk 4.3 Contract Officer. The Contract Officer shall be [Sean Larvenz 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 Consultant. 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 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 01203.0006/302166.6 -6- 8 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. -0�: .w 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 Cid: (a) Commercial 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 $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 01203.0006/302166.6 -7- 9 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: 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 NOTICE TO CERTIFICATE HOLDER NAMED HEREIN. -8 B-10 01203.0006/302166.6 [to be initialed] Consultant 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. emnific In ation. 1* 5.3 d 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 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 attorneys' fees incurred in connection therewith; 01203.0006/302166.6 -9- B-11 (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 attorneys' 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. 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 01203.0006/302166.6 -10- B-12 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") 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 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 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 Confidentialitv 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 01203.0006/302166.6 -11- B-13 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 attorneys' fees, caused by or incurred as a result of onsultant'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. ENFORCEME F REENT 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 Los Angeles, 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 Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, 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 01203.0006/302166.6 -12- B-14 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 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 01203.0006/302166.6 - 13- B-15 Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. 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 terini ion without cause pursuant to this Section, the terminating party need not provide the n -terminating parry with the opportunity to cure pursuant to Section 7.2. 7.8 Termination for Default of Consultant. 14 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 Attorneys' Fees. 1W, 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 parry entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other 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. 7.10 Liquidated Damages Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of ($ ) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. -14- B-16 01203.0006/302166.6 ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non -liability of City Officers and Employees. 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. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement 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. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining 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 attorneys' fees, incurred by City. -ls- B-17 01203.0006/302166.6 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 Rancho Palos Verdes, 30940 Hawthorne Blvd., California 90275 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. 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 01203.0006/302166.6 -16- B-18 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. 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 effect. 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) that 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] 01203.0006/302166.6 -17- B-19 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first -above written. CITY: CITY OF RANCHO PALOS VERDES, a municipal corporation Brian Campbell, Mayor ATTEST: Lo Name: Title: Address: 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. 01203.0006/302166.6 - is - B-20 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 LOS ANGELES On , 2015 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within 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 entityupo half of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of true and correct. WITNESS my hand and official seal. Signature: t the foregoing paragraph is 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 01203.0006/302166.6 _19- B-21 CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ 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 01203.0006/302166.6 _19- B-21 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 LOS ANGELES On , 2015 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within 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 true and correct. WITNESS my hand and official seal. Signature: t the foregoing paragraph is 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 ❑ PARTNER(S) ❑ 'IrMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER SIGNER IS REPRESENTING: (NAME OF PERSON(S) OR ENTITY(IES)) TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNERS) OTHER THAN NAMED ABOVE 01203.0006/302166.6 -20- B-22 EXHIBIT "A" SCOPE OF SERVICES I. Stay Green, Inc. shall perform the following services for the City of Rancho Palos Verdes in accordance with the requirements set forth in the "General Provisions", "Special Provisions", "Performance Work Statement", and "Annexes A through E" in the bid documents for the project entitled LABOR AND EQUIPMENT FOR CITY LANDSCAPING, GENERAL MAINTENANCE, AND LITTER & TRASH SERVICES: A. Stay Green, Inc. shall provide onsite service labor for Landscape Services, General Maintenance Services, Trash, Litter & Debris Services, and offsite Administrative Services with an annual not -to -exceed amount of $695,760, and with a three-year base contract not -to -exceed amount of $2,087,280, such services to be compensated for pursuant to Section A of Exhibit "C" Schedule of Compensation. i. Lease of City Property 1. Contractor and the City shall enter into the Lease Agreement attached hereto as Exhibit "E" through which Contractor will lease property at City Hall from which to conduct the services described herein. V ii. Administration Services 1. Contractor shall establish and manage a maintenance service request reception desk offsite; utilizing CityWorks and transparent to DPW and all City Departments. (Reference: Performance Work 4C Statement, Section P.2.) iii. Landscape Services "Contractor shall establish and operate a Landscape Services Section to maintain parks, trails, open spaces, rights of way, medians, infrastructure, assets, and utilities in the City through inspections, scheduled maintenance, preventive maintenance, and customer -generated work orders, received through the maintenance service request reception desk. Landscape Services capabilities will include, but not be limited to: Landscaping services, fuel modification services, irrigation system maintenance, pest control, and trails and open space maintenance." (Reference: Performance Work Statement, Section P.3.) The specific details of the Landscape Services Section are described in Performance Work Statement, Section P.3. 01203.0006/302166.6 -21- B-23 iv. General Maintenance Services "Contractor shall establish and operate a General Maintenance Section to maintain buildings, infrastructure, assets, and utilities in the City, through inspections, scheduled maintenance, preventive maintenance, and customer -generated work orders, received through the maintenance service request reception desk. General Maintenance Service's capabilities will include, but not be limited to: Plumbing, carpentry, masonry, painting, inspecting, welding, fencing, material handling, cleaning, and general labor." (Reference: Performance Work Statement, Section PA.) v. Trash, Litter and Debris Services 1. "Trash: Contractor shall be remove all trash, recyclables and debris from City trash cans daily (7 days/week) IAW [in accordance with] the TE [Technical Exhibits, or Annexes A-E]." (Reference: Performance Work Statement, Section P.S.) 2. "Litter and Debris: Contractor shall remove litter and debris found within the contract areas daily (7 days/week) IAW the TE. Liter and debris includes, but is not limited to: mattresses, furniture, cartons, bottles, paper, plastic, metal, tires, stones, soil, organic materials, flyers, decorations, and advertisements. Contract areas shall include, but not be limited to: utility poles, sign posts, trash cans, buildings, and other improvements within the City right of way and on other City owned parcels to include Parks, trails, and open spaces." (Reference: Performance Work Statement, Section P. 5.) B. Stay Green, Inc. shall provide all vehicles and equipment listed in Annex "D," Schedule of Equipment for a flat monthly fee of $16,036.61, with an annual not - to -exceed amount of $192,440.00, and with a three-year base contract not -to - exceed amount of $577,320.00, such equipment to be compensated for pursuant to Section B of Exhibit "C," Schedule of Compensation. Equipment is listed in Exhibit "A-1," Annex D — Schedule of Required Equipment. C. Stay Green, Inc. shall provide materials listed in Annex "E," Schedule of Estimated Quantities for a flat monthly fee of $4,905.50, with an annual not -to - exceed amount of $58,866, and with a three-year base contract not -to -exceed amount of $176,598, such material to be compensated for pursuant to Section C of Exhibit "C," Schedule of Compensation. Material is listed in Exhibit "A-2," Contractor Provided Materials. D. Stay Green, Inc. shall perform on-call services not covered in Section A above, as requested in writing by the Contract Officer, in accordance with the rates quoted 01203.0006/302166.6 -22- B-24 in the Contractor's proposal in Bid Category 4 Bid Alternates, for an aggregate annual not -to -exceed amount of $25,000 and with a three-year not -to -exceed amount of $75,000 and such labor to be compensated for pursuant to Section D of Exhibit " C Schedule of Compensation. On-call services are for emergency responses to incidents which occur outside of normal business hours. This is limited to incidents which pose a significant risk to the life, safety, health or environment. i. On-call services rendered shall be itemized on monthly invoices and be accompanied by the Contracting Officer's letter of authorization. II. As part of the Services, Stay Green, Inc. will prepare and deliver the following tangible work products to the City: A. Landscape Services Standard Operating Procedure (Reference: Performance Work Statement, Section P.3.4.) B. Maintenance Services Standard Operating Procedure (Reference: Performance Work Statement, Section P.4.4.) III. In addition to the requirements of Section 6.2, during performance of the Services, Stay Green, Inc. will keep the City appraised of the status of performance by delivering the following status reports: A. Weekly Work O Re (R ence: Performance Work Statement, Section P.2.3.) B. Monthly Work Order Report (Reference: Performance Work Statement, Section P.2.4.) C. Monthly Irrigation Report (Reference: Performance Work Statement, Section P.3.15.1.1.) D. Monthly Pesticide Use Report (Reference: Performance Work Statement, Section P.3.33.2.2.) E. Monthly Lighting System Report (Reference: Performance Work Statement, Section P.4.14.9.3.) F. Monthly Playground Safety Inspection Sheets (Reference: Performance Work Statement, Section P.4.14.14.) IV. All work product is subject to review and acceptance by the City, and must be revised by Stay Green, Inc. without additional charge to the City until found satisfactory and accepted by City. V. Stay Green, Inc. will utilize the following personnel to accomplish the Services: 01203.0006/302166.6 -23- B-25 A. 1 Each - Service Request Technician B. 1 Each - Lead Landscape Technician C. 1 Each - Senior Landscape Technician D. 1 Each - Irrigation Technician E. 4 Each — Landscape Laborer F. 1 Each - Lead Maintenance Worker G. 1 Each — Senior Maintenance Worker H. 2 Eac I. 3 Eac 01203.0006/302166.6 -24- B-26 01203.0006/302166.6 -25- B-27 EXHIBIT "A-1" Annex D — Schedule of Required Equipment Functional PWS Horse Nomenclature Name Specification Size Power/ Grade Quantity area Reference displacement Tarp, Landscape equipment 16'-20'x Landscaping P.3.8.1. Utility trailer ramp, 48 side N/A Commercial 2 trailer g' deck rails & warning beacon Landscaping P.3.8.2. Mower Zero turn Mulching 60" deck 25Hp Commercial 2 radius, riding 4WD PTO Compact 30Hp to Landscaping P.3.8.3. Tractor loader,& 3 Commercial 1 Utility SOHp point hitch Landscaping P.3.8.3. Box Blade Gannon With scarifier 65" N/A Commercial 1 3 -point, lift Landscaping P.3.8.3. Mower Rotary cutter type, 540RPM 72" n/a Commercial 1 PTO Landscaping P.3.8.4. Brush Chipper Trailer 6"+ feed 25Hp to Commercial 1 mounted throat 35Hp Landscaping P.3.8.5. Chain saw Large 30" bar >50cc Professional 2 2b0r 24 Landscaping P.3.8.5. Chain saw Medium <50cc Professional 2 Personal Landscaping P.3.8.5. Protective Chaps 6 Ply 32" to 40" N/A Commercial 4 Clothing Personal Head, face, Landscaping P.3.8.5. Protective hearing Adjustable N/A Professional 4 Clothing protection Landscaping P.3.8.6 Pole Pruner Gas powered Adjustable 18' pole 36.3cc Professional 2 Landscaping P.3.8.7. Trimmer Gas powered 16.5"cut 36.3cc Professional 4 Landscaping P.3.8.8. Blower Gas powered <66dB(A) 64.8cc Professional 4 Landscaping P.3.8.9. Hedge Trimmer Gas powered 135 Deg cutting 20" blade 31.4cc Professional 4 head Landscaping P.3.8.10. Shovel Digging Commercial 4 Landscaping P.3.8.10. Shovel Trench Commercial 4 Landscaping P.3.8.10. Shovel Scoop Commercial 2 Landscaping P.3.8.10. Shovel Transfer Commercial 2 Landscaping P.3.8.10. Fork Manure Commercial 4 Landscaping P.3.8.10. Rake Bow rake 15 tine Commercial 4 Landscaping P.3.8.10. Rake Leaf Commercial 4 Landscaping P.3.8.10. Rake Cultivator 4 tine Commercial 4 Landscaping P.3.8.10. Mattock Commercial 2 Landscaping P.3.8.10. Axe Single bit Commercial 2 Landscaping P.3.8.10. Hammer Sledge 16 Lbs Commercial 2 Landscaping P.3.8.10. Post Hole Digger Non-conductive 4' Commercial 2 01203.0006/302166.6 -26- B-28 Landscaping P.3.8.10. Hoe Commercial 2 Landscaping P.3.8.10. Lopper Bypass 32" Commercial 2 Landscaping P.3.8.10. Broom Push 24" Commercial 2 Landscaping P.3.8.10. Tools other Commercial 1 Landscaping P.3.8.10. Wheelbarrow 6 Cu. Ft. Commercial 2 High lift gate, 5-6 Yard Landscaping P.3.9.1. Dump Truck 5-6 Yard tarp, light bar, Commercial 1 box hitch, signs Tarp, light bar, lift gate, hitch, Landscaping P.3.9.2. Truck Stake bed 1 ton Commercial 2 tool storage boxes, signs Light bar, hitch, Landscaping P.3.9.3. Truck Utility bed pipe rack (Van 3/4 ton Commercial 1 optional), signs Telescoping General 6K, 36' lift P.4.10.1. Fork lift boom, all 74Hp Commercial 1 Maintenance height terrain General John Deere 310 P.4.10.2. Backhoe loader 99Hp Commercial 1 Maintenance SI or equal ramps, load General Equipment P.4.10.3. Trailer securement 12 ton Commercial 1 Maintenance transport devices Light bar, hitch, General P.4.11.1. Truck Utility bed pipe rack (Van 3/4 ton Commercial 2 Maintenance optional), signs . Tarp, light bar, General lift gate, hitch, P.4.11.2. Truck Stake bed 1 ton Commercial 1 Maintenance tool storage boxes, signs Tarp, General Landscape equipment 16'-20'x P.4.11.3. Utility trailer ramp, 48" side N/A Commercial 1 Maintenance trailer 8'dee 8'deck k rails & warning beacon General P.4.13.1. Chain saw Large 30" bar >50cc Professional 2 Maintenance General 20"-24" P.4.13.1. Chain saw Medium <50cc Professional 2 Maintenance bar Personal General P.4.13.1. Protective Chaps 6 Ply 32" to 40" N/A Commercial 4 Maintenance Clothing Personal Head, face, General P.4.13.1. Protective hearing Adjustable N/A Professional 4 Maintenance Clothing protection General P.4.13.2. Pole Pruner Gas powered Adjustable 18' pole 36.3cc Professional 1 Maintenance Personal Head, face, General P.4.13.2. Protective hearing Adjustable N/A Professional 1 Maintenance Clothing protection 01203.0006/302166.6 -27- B_29 01203.0006/302166.6 -28- B-30 KIPPERTOOLS GMTK General General General Mechanic's Tool p,4.13.3. Tool Kit Professional 2 Maintenance Mechanic Kit 5, P/N: KIT GMTK-S-BLK or equivalent. KIPPERTOOL, General Coordless P/N: KIT CDSK P.4.13.4. Tool Kit Power Tool Professional 2 Maintenance WA-20V-R2 or Kit equivalent. KIPPERTOOLS, General Insulated P/N: KIT P.4.13.5. Tool Kit Electrical Professional 2 Maintenance Tool Kit ELECTRICAL or equivalent. Miller Bobcat portable General P.4.13.6. Welder/Generator welder 250 Welder 250 Amp Professional 1 Maintenance 907500001 or generator equivalent Personal Helmet, General P.4.13.6. Protective gloves, Professional 1 Maintenance Clothing leathers MILLER SPECTRUM 625 X-TREME General PLASMA p,4.13.7. Plasma Cutter Professional 1 Maintenance CUTTER WITH 12 FT. XT40 TORCH or equivalent. Victor Professional Portable Torch General P.4.13.8. Torch Oxy/Actyl Outfit W/ Professional 1 Maintenance Cylinders - Acetylene or equivalent. Jet model General 7" x12" P.4.13.9. Band Saw 414459 or 3/4 Hp Professional 1 Maintenance Horizontal equivalent. Jet model General P.4.13.10. Drill Press Floor 3544015", , 3/4 Hp Professional 1 Maintenance mounted 115/230V or equivalent. Ingersoll Rand Gas Portable Air Compressor — General 5.5 HP, 11.8 P.4.13.11. Air Compressor Gas powered CFM At 90 PSI, 5.5 Hp Commercial 1 Maintenance Model# SS3J5.5GHWB or equivalent. 01203.0006/302166.6 -28- B-30 General Gas Graco GMAX P.4.13.12. Paint Sprayer powered, 3900 or 120 cc Professional 1 Maintenance Airless equivalent. Werner, P7404 General Step, Type 4 ft Type IAA P.4.13.13. Ladder IAA, Fiberglass 4' Professional 1 Maintenance fiberglass. Platform Ladder or equivalent. Werner, P7406 General Step, Type 6 ft Type IAA P.4.13.13. Ladder IAA, Fiberglass 6' Professional 1 Maintenance fiberglass. Platform Ladder or equivalent. Werner, P7408 General Step, Type 8 ft Type IAA p,4.13.13. Ladder IAA, Fiberglass 8' Professional 1 Maintenance fiberglass. Platform Ladder or equivalent. Werner, T7410 General Step, Type 10 ft Type IAA P.4.13.13. Ladder IAA, Fiberglass Twin 10' Professional 1 Maintenance fiberglass. Ladder or equivalent. Werner, T7412 General Step, Type 12 ft Type IAA P.4.13.13. Ladder IAA, Fiberglass Twin 12' Professional 1 Maintenance fiberglass. Ladder or equivalent. Werner, 7806 12 ft Type IAA General Extension, Fiberglass P.4.13.14. Ladder Type IAA, 12' Professional 1 Maintenance fiberglass. Combination Ladder or equivalent. Werner, 7808 16 ft Type IAA General Extension, Fiberglass p,4.13.14. Ladder Type IAA, 16' Professional 1 Maintenance fiberglass. Combination Ladder or equivalent. Werner, D7120 - 2 20 ft Type IAA General Extension, Fiberglass D- P.4.13.14. Ladder Type IAA, 20' Professional 1 Maintenance fiberglass. Rung Extension Ladder or equivalent. Werner, D7124 - 2 24 ft Type IAA General Extension, Fiberglass D- p,4.13.14. Ladder Type IAA, 24' Professional 1 Maintenance fiberglass. Rung Extension Ladder Ladder or equivalent. 01203.0006/302166.6 -29- B-31 01203.0006/302166.6 -30- B-32 Werner, D7128 - 2 28 ft Type IAA General Extension, Fiberglass D- p,4.13.14. Ladder Type IAA, 28' Professional 1 Maintenance fiberglass. Rung Extension Ladder or equivalent. Werner, 4101 - 18 Narrow Span General Narrow 17 ft 6 in H x 6 Maintenance p•4.13.15. Scaffold span, ft L Platform 17' Professional 1 aluminium Scaffold Tower or egiavalent 4 pc Soft Grip Adjustable General P.4.13.16. Wrench set Adjustable Wrench Set (6— 6"-12" Commercial 2 Maintenance 12") (Blue - Point®) 3 pc Adjustable General P.4.13.16. Wrench set Adjustable Wrench Set 15"-24" Commercial 2 Maintenance (15-24") (Blue- Point®) TEKTON Tekton 19621 10 -pc. General Jumbo 1-5/16" to P.4.13.17. Wrench set Combination Combination Commercial 2 Maintenance Wrench Set 2 (SAE) or equivalent. Craftsman 5 - piece Full Polish General Large 1" to 1 - Maintenance P.4.13.17. Wrench set Combination Combination 5/16" Commercial 2 Wrench Set, Inch or equivalent. Ridgid Heavy - General P.4.13.18. Wrench Pipe Duty Straight 12" Commercial 2 Maintenance Pipe Wrench or equivalent Ridgid Heavy - General p•4.13.18. Wrench Pipe Duty Straight 18" Commercial 2 Maintenance Pipe Wrench or equivalent Ridgid Heavy - General P.4.13.18. Wrench Pipe Duty Straight 24" Commercial 2 Maintenance Pipe Wrench or equivalent Ridgid Heavy - General P.4.13.18. Wrench Pipe Duty Straight 36" Commercial 2 Maintenance Pipe Wrench or equivalent 01203.0006/302166.6 -30- B-32 01203.0006/302166.6 - 31- B-33 Ridgid Heavy - General Duty Straight P.4.13.18. Wrench Pipe 48" Commercial 2 Maintenance Pipe Wrench or equivalent Bosch General BH2770VCD P.4.13.19. Jack Hammer Electric Demolition 60 Pound Commercial 1 Maintenance Hammer or equivalent Various hammer steels General P.4.13.19. Jack Hammer Steels for concrete Commercial 1 Maintenance and asphalt demolition Kushlan Professional Portable Electric General Direct Drive 3.5 Cubic P.4.13.20. Mixer Cement Professional 1 Maintenance Cement Mixer Foot — 3.5 Cubic Ft., Model# 350DD or equivalent. Nupla 6 ft. Certified Non - Conductive Post General P.4.13.21. Digger Post hole Hole Digger 6' Professional 2 Maintenance with Fiberglass Handle or equivalent. Everbilt 4 in. x 4 in. x1ft. General Premium Steel P.4.13.22. Driver Fence post 14 pound Commercial 2 Maintenance Fence Post Driver or equivalent. Hammer, Hand General General saw, Tape P.4.13.23. Tools measure, speed Various Commercial 1 Maintenance Carpentry square, level, etc. Bosch 10 -in Table Saw General P.4.13.24. Table Saw Portable Model #: 4100- 10" Commercial 1 Maintenance 09 or equivalent. Bosch 12 -in Sliding Compound General Compound, P.4.13.25. Miter Saw Miter Saw 12" Commercial 1 Maintenance sliding Model #: GCM12SD or equivalent. 01203.0006/302166.6 - 31- B-33 General Maintenance P.4.13.26. Vacuum Wet/Dry RIDGID 16 Gal. 2 -Stage Commercial Wet/Dry Vacuum or equivalent. 16 Gal. Commercial 2 Mi -T -M® 4,200 PSI Pressure Washer - 3.4 GPM - 13 HP Honda® GX OHV Engine, Cast Iron Sleeve With Low Oil Shutdown - Direct Drive Crankshaft Pump With Gas Brass Manifold - General 3.4 GPM, P.4.13.27. Pressure Washer powered, 20" Stainless Commercial 1 Maintenance 4200 PSI Cold Water Steel Quick - Connect Wand With Five Spray Nozzles And 50' Hose - Powder - Coated 16 - Gauge Welded Steel Frame With 10" Pneumatic Tires - 3 -Year Limited Warranty Or equivalent. 01203.0006/302166.6 -32- B-34 EXHIBIT 66A-2" Contractor Provided Materials Contractor Provided Materials Functional area PWS Reference Nomenclature Name Specification Units Annual Quantity Landscaping P.3.23.4. Sand Playground Washed plastersand free of rocks tons annually 60 Engineered Wood Fiber media, which meets ADA, ASTM, Landscaping P.3.24.1. Wood fiber Media Playground CPSC and CSA standards yards annually 100 Landscaping P.3,21.3 Decomposed Granite Trails/Landscaping Trail and landscape replenishment yards annually 200 Bolts, nuts, screws, nails, banding & clamps, zip ties, flush valves, washers, gaskets, sealant, solvents, lubricants, General Maintenance P.4.8. Common Materials Hardware, consumables adhesives, abrasives, blades, and rags. Lump sum 1 Windows based, Required for communication with City staff General Maintenance P.4.9 Communication devices Smart phone/ tablet and CltyWorks, I 6each 6 2000 EZ Tie handled dog waste clean up bags. Bulk packed - 20 packages of 100, bulk packed bags - 20 blocks of 100 bags, or General Maintenance P.4.14.19, Bags 1 Dog Waste equivalent Case of 2000 10 General Maintenance P.4.14.20. Bags Waste Bin Liners 39" x 58" 1.5 Mil Eco Friendlytrash liners IC@se of 100 1222 01203.0006/302166.6 -33- B-35 EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) I. Section 1.5 titled "Familiarity with Work" is amended to read as follows: (a) By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of work 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, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. (b) Contractor shall promptly, and before the following conditions are disturbed, notify the City, in writing, of any: (i) material Contractor believes may be hazardous waste as defined in Section 25117 of the Health & Safety Code required to be removed to a Class I, II, or III disposal site in accordance with existing law; (ii) subsurface, unknown or latent conditions, materially different from those indicated; or (iii) unknown physical conditions at the site of any unusual nature, different from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, and will materially affect the performance of the services hereunder. 11 (c) City shall promptly investigate the conditions, and if it finds that the conditions do materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work, shall issue a change order per Section 1.10 of this Agreement. (d) In the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date set, but shall proceed with all work to be performed under the Agreement. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting parties. (e) City will compensate Contractor to the extent required by Government Code Section 4215 by issuing a change order per Section 1.8 of this Agreement. Il. Section 1.8 titled "Additional Services" is replaced with Section 1.8 titled "Additional Work and Change Orders" to read as follows: (a) 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 Work or make changes by altering, adding to or deducting from said work. No such extra work 01203.0006/302166.6 -34- B_36 may be undertaken unless a written change order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor ("Change Order"). All Change Orders must be signed by the Contractor and Contract Officer prior to commencing the extra work thereunder. (b) Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or any increase in the time to perform of up to one hundred eighty (180) days; and does not materially affect the Work and which are not detrimental to the Work or to the interest of the City, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. (c) Any adjustment in the Contract Sum for a Change Order must be in accordance with the rates set forth in the Schedule of Compensation in Exhibit "C". If the rates in the Schedule of Compensation do not cover the type of work in the Change Order, the cost of such work shall not exceed an amount agreed upon in writing and signed by Contractor and Contract Officer. If the cost of the Change Order cannot be agreed upon, the City will pay for actual work of the Change Order completed, to the satisfaction of the City, as follows: (i) Labor: the cost of labor shall be the actual cost for wages of workers and subcontractors performing the work for the Change Order at the time such work is done. The use of labor classifications that would increase the cost of such work shall not be permitted. (ii) Materials and Equipment: the cost of materials and equipment shall be at cost to Contractor or lowest current price which such materials and equipment are reasonably available at the time the work is done, whichever is lower. (iii) If the cost of the extra work cannot be agreed upon, the Contractor must provide a daily report that includes invoices for labor, materials and equipment costs for the work under the Change Order. The daily report must include: list of names of workers, classifications, and hours worked; description and list of quantities of materials used; type of equipment, size, identification number, and hours of operation, including loading and transportation, if applicable; description of other City authorized services and expenditures in such detail as the City may require. Failure to submit a daily report by the close of the next working day may, at the City's sole and absolute discretion, waive the Contractor's rights for that day. (d) It is expressly understood by Contractor that the provisions of this Section 1.8 shall not apply to services specifically set forth in the Scope of Work. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Work may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. (e) No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed. 01203.0006/302166.6 -35- B_37 III. Section 1.10 titled "Compliance with California Labor Law" is added in its entirety to read as follows: (a) Public Work. The Parties acknowledge that the work to be performed under this Agreement is a "public work" as defined in Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations ("DIR") implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by regulation. (b) Prevailing Wages. Contractor shall pay prevailing wages to the extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request. By initiating any work under this Agreement, Contractor acknowledges receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where work is performed under this Agreement. (c) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (d) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. 01203.0006/302166.6 -36- B_38 (f) Eight -Hour Work Day. Contractor acknowledges that eight (8) hours labor constitutes a legal day's work. Contractor shall comply with and be bound by Labor Code Section 1810. (g) Penalties for Excess Hours. Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half (1 %) times the basic rate of pay. (h) Workers' Compensation. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees. In accordance with the provisions of California Labor Code Section 1861, Contractor certifies as follows: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract." Contractor's Authorized Initials (i) Contractor's Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, Contractor shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor. IV. The first paragraph of Section 2.4, Invoices, is hereby amended to read as follows (new text is identified in underline, deleted text is identified by strike through): 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 01203.0006/302166.6 -37- B-39 Finance and/or Director of Public Works. 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. V. Section 4.4, Independent Consultant, is hereby amended to read as follows (new text is identified in underline, deleted text is identified by strike through): 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, except as otherwise set forth herein. Consultant shall perform all services required 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. VI. followi Section 5.5 titled "Performance and Payment Bonds" is added to read as follows: (a) A performance bond in the amount of the Contract Sum of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement. (b) A payment bond in the amount of the Contract Sum of this Agreement, in the form provided by the City Clerk, which secures the payment of all persons furnishinglabor abor and/or materials in connection -with the work under this Agreement. Both the performance and payment bonds required under this Section 5.5 shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement and pays all labor and materials for work and services under this Agreement. VII. Section 5.6 titled "Release of Securities" is added to read as follows: City shall release the Performance and Payment Bonds when the following have occurred: 01203.0006/302166.6 -38- B-40 (a) Contractor has made a written request for release and provided evidence of satisfaction of all other requirements under Article 5 of this Agreement; (b) the Work has been accepted; and (c) after passage of the time within which lien claims are required to be made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the Payment Bond until such claims have been resolved, Contractor has provided statutory bond, or otherwise as required by applicable law. VIII. Section 7.10 titled "Liquidated Damages" is replaced in its entirety as follows: Complaints can be generated by third parties or directly by City inspection. The Contract Officer may issue an oral warning, or if warnings are not effective, the Contractor Officer may issue a Corrective Action Request (CAR) to the Contractor. In addition to issuing the CAR, the Contract Officer may assess liquidated damages against Contractor. CARs shall be classified in the following categories: (a) Level I: A minor non -systemic non-compliance with the Agreement. Level I CARs can typically be corrected on the spot or within 24 hours. Failure of the Contractor to resolve Level I CARs within 24 hours of notification, unless otherwise specified by the Contract Officer, may result in an escalation to Level II status. (b) Level II: A serious systemic non-compliance with the Agreement or a repeated non-compliance with the Agreement. Level II CARs shall result in liquidated damages in the amount of $125 per day the Contractor does not comply with the Agreement. Failure of the Contractor to resolve Level II CARs within two (2) days of notification, or such period as the Contract Officer shall prescribe, may result in an escalation to Level III status. (c) Level III: A major systemic non-compliance with the Agreement or a repeated non-compliance which has previously been identified as a Level H CAR. Level III CARs shall result in liquidated damages in the amount of $250 per day the Contractor does not comply with the Agreement. Failure of the Contractor to resolve Level III CARs within two (2) days of notification, or such period as the Contract Officer shall prescribe, shall result in an escalation to Cure Notice status. (d) Cure Notice: An egregious systemic non-compliance with the Agreement or a repeated non-compliance which has previously been identified as a Level III CAR. Cure Notices shall result in liquidated damages in the amount of $500 per day the Contractor does not comply with the Agreement. Cure Notices require the complete and immediate attention of the Contractor. Failure of the Contractor to resolve the Cure Notice within fifteen (15) days of notification, or such period as the Contract Officer shall prescribe, may result in suspension or termination of the contract. 01203.0006/302166.6 -39- B -41 (e) Nothing herein shall be construed as limiting City's right to terminate the Agreement for default by Contractor or otherwise limit the City's enforcement rights or remedies the Agreement. Furthermore, nothing herein shall be construed as requiring City to impose liquidated damages prior to terminating or taking other action 01203.0006/302166.6 -40- B-42 EXHIBIT "C" SCHEDULE OF COMPENSATION I. Consultant shall perform the following tasks at the following rates: A. Labor: ITEM DESCRIPTION, ESTIMATED COST ANNUAL 3 YEAR NO. UNIT ANNUAL PER COST BASE TERM QUANTITY HOUR COST BID CATEGORY 1: LABOR COST XX XX XX Service Request 2080 HRS $22.50 $46,800 $140,400 1. Technician, One FTE Lead Landscape 2080 HRS $32.00 $66,560 $199,680 2. Technician, One FTE Senior Landscaper, 2080 HRS $24.50 $50,960 $152,880 3. One FTE Irrigation Technician, 2080 HRS 0$33.00 $68,640 $205,920 4. One FTE Landscape Laborer, 8320 HRS $19.50 $162,240 $486,720 5. Four FTEs Lead Maintenance 2080 HRS $24.50 $50,960 $152,880 6. Worker, One FTE Senior Maintenance 2080 HRS $22.50 $46,800 $140,400 7. Worker, One FTE Maintenance Laborer, 4160 HRS $19.50 $81,120 $243,360 8. Two FTEs Litter Laborer, Three 6240 HRS $19.50 $12100 $365,040 9. FTEs SUB TO AL BID ; ATEGORY 1: ANNUAL LABOR COST (add items 1- XX $695,760 XX 9) SUB TOTAL BID CATEGORY 1: 3 YEAR BASE TERM LABOR COST XX XX $2,087,280 (add items 1-9) 01203.0006/302166.6 -41- B-43 B. Vehicles and Equipment: Description A& Monthly Cost Annual Cost 3 Year Base Term Cost SUB TOTAL BID CATEGORY 2 — $16,036.61 $192,440 XX ANNUAL VEHICLES AND EQUIPMENT 2. Lead Landscape Technician Overtime $48.00 SUB TOTAL BID CATEGORY 2 — 3 $4,905.50 XX XX YEAR BASE TERM VEHICLES AND XX XX $577,320 EQUIPMENT 6. Lead Maintenance Worker Overtime $36.75 C. Contractor Provided Materials: Description Monthly Annual 3 Year Base 0 a Cost Cost Term Cost SUB TOTAL BID CATEGORY 3 — 2. Lead Landscape Technician Overtime $48.00 MONTHLY CONTRACTOR PROVIDED $4,905.50 XX XX MATERIAL COSTS $49.50 5. Landscape Laborer Overtime SUB TOTAL BID CATEGORY 3 — 6. Lead Maintenance Worker Overtime $36.75 ANNUAL CONTRACTOR PROVIDED XX $58,866 XX MATERIAL COSTS $29.25 9. Litter Laborer Overtime SUB TOTAL BID CATEGORY 3 — 3 BID CATEGORY 4 — ANNUAL NOT -TO -EXCEED TOTAL COST $25,000 BID CATEGORY 4 — 3 YEAR NOT -TO -EXCEED TOTAL COST $75,000 YEAR BASE TERM CONTRACTOR XX XX $176,598 PROVIDED MATERIAL COSTS D. On-call services not covered in Section A: Item No. Description Cost Per Hour BID CATEGORY 4 BID ALTERNATES XX 1. Service Request Technician Overtime $33.75 2. Lead Landscape Technician Overtime $48.00 3. Senior Landscaper Overtime $36.75 4. Irrigation Technician Overtime $49.50 5. Landscape Laborer Overtime $29.25 6. Lead Maintenance Worker Overtime $36.75 7. Senior Maintenance Worker Overtime $33.75 8. Maintenance Laborer Overtime $29.25 9. Litter Laborer Overtime $29.25 BID CATEGORY 4 — ANNUAL NOT -TO -EXCEED TOTAL COST $25,000 BID CATEGORY 4 — 3 YEAR NOT -TO -EXCEED TOTAL COST $75,000 E. Lease of City Property: /year for lease and /year for utilities. 01203.0006/302166.6 -42- B-44 II. Retention: NOT USED. III. Within the budgeted amounts for each Task, 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 Stay Green, Inc. 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, contractor's employee name who performed the work, the number of hours worked, applicable City account charge codes, the hourly rate, and supporting documentation to include copies of City verified timesheets. B. Line items for all equipment shall be proratedthly based on total annual cost (annual cost / 12 = monthly rate). OF C. Line items for all materials shall be prorated rnonthly based on total annual cost (annual cost / 12 = monthly rate). D. Line items for all approved on-call services for all personnel describing the work performed, contractor's employee name who performed the work, the number of hours worked, applicable City account charge codes, the hourly rate, and supporting documentation to include copies of City verified timesheets and a copy of written on- call services author] zati on(s) from Contracting Officer, or his designee. V. The total compensation for the Services for Fiscal Years 2016-2017 through 2018- 2019 shall not exceed $ 3,224,909.52, as provided in Section 2.1 of this Agreement, and the annual amount shall not exceed $ 1,074,969.84. VI. Stay Green, Inc. billing rates for all personnel are detailed in Exhibit C, Section I, A and D. 01203.0006/302166.6 -43- B-45 EXHIBIT "D" SCHEDULE OF PERFORMANCE I. Unless earlier terminated in accordance with Article 7 of this Agreement, the term of this Agreement shall be February 1, 2017, to January 31, 2020. The term of this Agreement may be extended up to three years, by exercising up to three one-year options, based on Contractor performance and mutual consent. II. Stay Green, Inc. shall perform all work timely in accordance with the following schedule: A. Scheduled maintenance services shall be performed in accordance with the frequencies specified in Annex `B" of the Performance Work Statement, according to a schedule approved in writing by the Contracting Officer. B. Additionally and as directed by work order, unscheduled services shall be performed in accordance with Annex "C" of the Performance Work Statement, and attached hereto as Exhibit D-1. III. Contractor shall deliver status reports in accordance with Exhibit A, sections I1 and III of this Agreement, as scheduled in the Performance Work Statement. IV. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2. 01203.0020/321203.3 -44- B_46 EXHIBIT "D -l" ANNEX c DPW Service Request/Work Order Criteria Service Requests and Work Orders are divided into several groups depending on work dassification. The following list defines the work classification groups: • Service Request— Requests for work from internal or external customers which is not scheduled. This type of work is generally reported by phone, email, web request or in person. • Preventive Maintenance — Recurring scheduled work which is performed on a set cycle to prevent damage to equipment, assets and infrastructure- Examples would include: servicing a piece of equipment at a certain hour, time or mile interval- • Scheduled Work — Work which is scheduled in advance for the convenience of the public or internal custorn a rs- Examples would include: mowing of a certain parte on a fixed day each week or pai nting an office when the occupant is off duty- • Unscheduled Work Order —Work which is reported through the Service Request process or is self -identified by field technicians or City Maintenance personnel. Unscheduled work is prioritized as Emergency, Urgent, Routine or Command Directed. :Examples would include: Sewer overflown, downed trees or limbs, burnt out light bulbs or any oth er type of problem which needs to be repaired in a timely manner- • Project Work Order — Work which will involve rricre than 4.8 man hours or cost more than $5000.00 in materials to complete. This work is not subject to the work prioritization classification, but niay have a set date for completion Examples would include: painting an entire building, rebuilding a damaged bus stop, replacing a major piece of equipment or any other work which bythe nature of its scope cannot be ctasrified as a work order - Unscheduled Work Orders are prioritized accordi ngto the following classification definitions: • Emergency- Emergency work takes pricrin- over all other work and requires immediate action, including overtime or diverting craftsmen from other jobs, if necessary, to mitigatethe emergency. Usually, work will be classified as emergency when it consists of correcting failures/problems, which constitute an immediate danger to life, health, security or critical infrastructure- Normal resocnse to emergency work is within 1 hour during normal business hours and 2 hours after normal business hours- Lance started, work will continue until completed or until temporary repairs which al Ieviate the immediate danger are completed. Every effort will he ma de to complete repairs within 24 hours. • Urgent - Urgent work is required to correct a condition, which could become an emergency if left uncorrected or poses a significant inoanvenience to customers- Normal Response to urgent work is within 24 hours- Every effort will be made to complete repairs within 72 hours- • Routine - Routine work does not meet the criteria of emergency or urgent This category covers required work which, if notaccompiished, would only continueto be a n inconvenientor unsightly condition. Work in this category wil I normally be accomplished on a first-come first-served basis. Every effort will be made to respond to routine work within 3 business days and complete routine we rk within calendar 14 days - 01203.0020/321203.3 -45- B_47 EXHIBIT "E" LEASE AGREEMENT 01203.0020/321203.3 -46- B_48 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, California 90275 Attention: City Clerk [SPACE ABOVE FOR RECORDER'S USE ONLY] Exempt from filing/recording fees per Govt. Code §27383 LEASE AGREEMENT This Lease Agreement ('Lease") is made and entered into this day of , 2017 ("Lease Commencement Date"), by and between the CITY OF RANCHO PALOS VERDES, a municipal corporation ("Landlord"), and the STAY GREEN, INC., a California corporation ("Tenant"). RECITALS: A. Landlord owns that real property located at 30940 Hawthorne Blvd located in the City of Rancho Palos Verdes ("City"), State of California (comprised of APN No. 7573-002-913 & 7573-002-908) improved with certain buildings including the city hall and related government facilities ("City Buildings") and a parking lot ("Parking Lot") all as legally described on attached Exhibit A ("Property"). B. Tenant and Landlord have executed that certain Contract Services Agreement dated concurrently with this Lease whereby Tenant is obligated to provide general maintenance services and trash, debris and litter removal for public properties owned and operated by Landlord ("Services Agreement"). C. Other portions of the Property are leased by Landlord to other tenants ("Adjoining Tenants"). D. Landlord is willing to allow Tenant to rent a portion of the Property to be used by Tenant for performance of the Services Agreement pursuant to the terms and conditions set forth in this Lease. NOW, THEREFORE, the parties agree as follows: 1.0 LEASE SUMMARY. Certain fundamental lease provisions are presented in this Section and represent the agreement of the parties hereto, subject to further definition and elaboration in the respective referenced Sections and elsewhere in this Lease. In the event of any conflict between any fundamental lease provision and the balance of this Lease, the latter shall control. References to specific Sections are for convenience only and designate some of the sections where references to the particular fundamental lease provisions may appear. 01203.0020/321203.3 -47- B-49 1.1 Leased Premises. For purposes of this Lease, "Leased Premises" means (i) the exclusive use of the portion of the Property (together with the existing open shed and other existing improvements located thereon) as depicted on attached Exhibit B ("Exclusive Use Area"), together with (ii) the non-exclusive right to use the access road across the Property to reach the Exclusive Use Area. Tenant shall not have the right to use any other portion of the Property including, but not limited to, the parking lot adjacent to the City Hall. 1.2 Lease Commencement Date. This Lease shall commence on the Lease Commencement Date identified on Page 1. 1.3 Term. The term ("Term") shall commence on the Lease Commencement Date and continue for three (3) years ("Termination Date") subject to extensions as provided in Section 2.1(b). 1.4 Base Rent. The base rent for the Initial Term (as defined in Section 2.1(a)) shall be Eighty Thousand, Two Hundred Sixty Five Dollars ($80,265) per annum payable in equal monthly installments of Six Thousand, Six Hundred Eighty Eight Dollars and Seventy Five Cents ($6,688.75) ("Base Rent"). (See Section 3.1). 1.5 Use of Leased Premises. Tenant may use the Leased Premises for parking and storing its vehicles and equipment and other uses solely required for Tenant's rendering the services under the Service Agreement and no other purpose without the prior written consent of Landlord in Landlord's sole and absolute discretion. 1.6 Tenant's Address for Notices. Attn : 1.7 Security Deposit. None. 2.1 Term. (a) Initial Term. The term of this Lease shall commence on the Lease Commencement Date (as defined in Section 1.2) and shall continue for the period of time Specified in Section 1.3. (b) Options to Extend. Tenant has three (3) consecutive one (1) year options to extend the Lease ("Option to Extend") subject to all of the provisions of this Lease, including, but not limited to, the adjustments in Base Rent as set forth below. Tenant may only exercise an Option to Extend provided that Tenant (i) is not in Breach at either the time of the exercise or the end of the existing Term; and 01203.0020/321203.3 -48- B-50 (ii) the Service Agreement has been extended for the same time period in accordance with its terms. Each Option to Extend must be unconditionally exercised by Tenant providing written notice to Landlord not more than six (6) months nor less than one (1) months prior to the end of the then existing Term ("Option Exercise Notice"). Failure to timely exercise an Option to Extend in accordance with the foregoing shall automatically terminate the Option to Extend and all successive Options. Notwithstanding the Option Exercise Notice has been delivered by Tenant, if the parties do not extend the Services Agreement in accordance with its terms, the exercise of the option shall be deemed void. Upon the request of either party, both parties shall promptly execute and deliver an "Extension of Lease Agreement" pursuant to which the Tenant extends the Lease for the term of the Option Period upon all of its same terms and conditions except Base Rent which shall be adjusted in accordance with Section 3.1(b). 2.2 Termination of Services Agreement. This Lease shall immediately terminate concurrently with termination of the Services Agreement for any reason. However, if the Services Agreement is terminated due to Tenant's default or breach of the Services Agreement, then Tenant shall be deemed that Tenant is in default of this Lease and Landlord shall have the right to all remedies provided in Section 10.2. Upon termination of this Lease, Tenant shall have thirty (30) days to remove any personal property from the Property. 2.3 Lease Year. For purposes of this Lease, the term "Lease Year" shall mean each consecutive twelve (12) month period during the Lease Term; provided, however, that (i) the first Lease Year shall commence on the Lease Commencement Date including any partial month in which it occurs and end on the last day of the twelfth (12th) month thereafter; (ii) the second and each succeeding Lease Year shall commence on the first day of the next calendar month. and (iii) the last Lease Year shall end at the Termination Date (as defined in Section 1.3). 2.4 Holding Over. Any holding over after the expiration of the Term, with or without the consent of Landlord, express or implied, shall be construed to be a tenancy from month to month, cancellable upon thirty (30) days written notice with Base Rent equal to one hundred fifty percent (150%) of the last Base Rent payable under this Lease. 3.0 RENT. 3.1 Base Rent. (a) Base Rent for Initial Term. For each Lease Year, Tenant shall pay to Landlord the sum specified in Section 1.4 as annual rental, which sum shall be paid in equal monthly installments as specified in Section 1.4 with each monthly payment made in advance on the first (1S) day of each month ("Base Rent"). If the Lease Commencement Date occurs other than on the first day of a month, the applicable monthly Base Rent for that month shall be prorated and paid to Landlord concurrently with the Lease Commencement Date. 01203.0020/321203.3 -49- B-51 (b) Base Rent for Option to Extend. If an Option to Extend is exercised as set forth in Section 2.2 above, at the commencement of the extended Term, the Base Rent for that Lease Year shall be equal to the then existing Base Rent being paid by Tenant at the end of the existing Term. 3.2 Additional Rental. All monetary obligations of Tenant under this Lease, including, but not limited to, insurance premiums, property taxes, late charges, and utility costs, shall be additional rental and deemed "Rent" for purposes of this Lease. 3.3 Miscellaneous Requirements. All rental to be paid by Tenant to Landlord shall be in lawful money of the United States of America and shall be paid without deduction or offset, prior notice or demand. 3.4 Real Property Taxes. To the extent that any ad valorem tax is imposed, or sought to be imposed, on the Leased Premises (either in the form of a possessory interest tax or otherwise), Tenant shall pay, at the election of Landlord, either directly to the taxing authority or to Landlord, annual real estate taxes and assessments levied upon the Leased Premises (including any possessory interest taxes), as well as taxes of every kind and nature levied and assessed in lieu of, in substitution for, or in addition to, existing real property taxes. Such amount shall be paid on the date that is twenty (20) days prior to the delinquent date or, if Landlord receives the tax bill, ten (10) days after receipt of a copy of the tax bill from Landlord, whichever is later. Upon termination of this Lease, Tenant shall immediately pay to Landlord any final amount of Tenant's share of such taxes and assessments as determined by Landlord. 3.5 Personal Property Taxes. During the Term, to the extent that any personal property tax is assessed against and levied upon fixtures, furnishings, automobiles, equipment and all other personal property of Tenant contained in the Leased Premises, Tenant shall pay prior to delinquency all such taxes, and when possible Tenant shall cause said fixtures, furnishings, equipment and other personal property to be assessed and billed separately from the Leased Premises. 3.6 Reimbursement for Electrical Charges. During the Term, Tenant shall reimburse Landlord for a reasonable allocation of electrical charges to Tenant's usage within ten (10) days of receipt of a summary statement from Landlord. 4.0 LEASED PREMISES; UTILITIES; USE. 4.1 Leased Premises. Landlord leases to Tenant and Tenant hires from Landlord, the Leased Premises only for the use authorized in Section 1.5 and for no other use. During Landlord's business hours, Tenant's employees shall have access to restrooms located in the City Buildings which are open to the general public. Tenant covenants, as a material part of the consideration for this Lease, to keep and perform each and every provision of this Lease in compliance with all applicable laws and ordinances. Tenant accepts the Leased Premises in AS -IS condition without 01203.0020/321203.3 -50- B-52 representation or warranty of any kind. Tenant shall be solely responsible for security at the Leased Premises. Pursuant to California Civil Code Section 1938, Tenant is advised that the Leased Premises has not undergone inspection by a Certified Access Specialist (CASp), and, therefore, the City is not aware if the Leased Premises complies with the applicable construction -related accessibility standards pursuant to Civil Code Section 55.53. 4.2 Utilities. Tenant acknowledges that the Leased Premises does not have access to any utilities except electricity. 4.3 Signs. Tenant shall not install any signs on the Leased Premises without the prior written consent of Landlord. Any signage permitted by Landlord must comply with applicable laws and ordinances. 4.4 Disposal of Solvents, Waste and Trash. At Tenant's sole cost and expense, Tenant shall properly and promptly dispose of any solvents, waste or other materials used by Tenant in accordance with all applicable laws. Tenant may not permit any trash or other waste to accumulate or be stored on the Leased Premises. 4.5 Prohibited Uses. Tenant shall not sell or permit to be kept, used, displayed or sold in or about the Leased Premises (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia, or other material which would be considered lewd, obscene or licentious: (b) any article which may be prohibited by standard forms of fire insurance policies; (c) any controlled substances, narcotics, or the paraphernalia related to the same; or (d) alcoholic beverages unless expressly permitted by Landlord, in writing and in advance of the storage or consumption of the same. Tenant shall not do or permit anything to be done in or about the Leased Premises which will in any way obstruct or interfere with the rights of other parties, Adjoining Tenants, or Landlord's use of the City Buildings or injure or annoy them or use or allow or permit the Leased Premises to be used for any improper, immoral, unlawful, or objectionable purpose. Tenant shall not cause, maintain or permit any nuisance in or about the Leased Premises, or commit or suffer to be committed any waste upon the Leased Premises. Tenant may repair its vehicles on the Leased Premises provided Tenant does not permit any fluids including, oil, gasoline, etc. to contaminate the land and properly disposes of any such fluids in accordance with applicable laws. Tenant shall not permit any employee or contractor to remain overnight on the Leased Premises. 4.6 Compliance with Laws. Tenant shall, at its sole cost and expense, comply with all of the requirements of all municipal, state and federal authorities now in force or which may hereafter be in force pertaining to the use of the Leased Premises, and shall faithfully comply with all municipal ordinances, including, but not limited to, the General Plan and zoning ordinances, state and federal statutes, or other governmental regulations now in force or which shall hereinafter be in force. The judgment of any court of competent jurisdiction, or the admission of Tenant in any 01203.0020/321203.3 - 51- B-53 action or proceeding against Tenant, whether Landlord is a party thereto or not, that Tenant has violated any such order or statute in said use, shall be conclusive of that fact as between Landlord and Tenant. Tenant shall not engage in any activity on or about the Leased Premises that violates any Environmental Law, and shall promptly, at Tenant's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or Environmental Law for clean-up and removal of any contamination involving any Hazardous Material created or caused directly or indirectly by Tenant. The term "Environmental Law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environmental conditions on, under or about the Leased Premises, including, without limitation, (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq.; (iii) California Health and Safety Code Sections 25100 et seq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq.; (v) California Health and Safety Code Section 25359.7; (vi) California Health and Safety Code Section 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.; (viii) California Water Code Section 1300 et seg.; and (ix) California Civil Code Section 3479 et seq., as such laws are amended and the regulations and administrative codes applicable thereto. The term "Hazardous Material" includes, without limitation, any material or substance which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive hazardous waste" or "hazardous substance" or considered a waste, condition of pollution or nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. It is the intent of the parties hereto to construe the terms "Hazardous Materials" and "Environmental Laws" in their broadest sense. Tenant shall provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq. Tenant shall provide prompt written notice to Landlord of the existence of Hazardous Substances on the Leased Premises and all notices of violation of the Environmental Laws received by Tenant. 5.0 ALTERATIONS AND REPAIRS. 5.1 Alterations. Tenant shall not make, or suffer to be made, any alterations to the Leased Premises which shall require the issuance of any discretionary or ministerial permit(s), or any part thereof, without the prior written consent of Landlord. As a condition to such approval, Landlord may require that any such alterations to the Leased Premises be removed at termination of the Lease. Any removal of alterations shall be completed in a good and workmanlike manner leaving the Leased Premises in a good and safe condition at Tenant's sole cost and expense. Any damage occasioned by removal shall be repaired at Tenant's expense so that the Leased Premises will be surrendered in a good, clean, sanitary and safe condition. Any and all trade fixtures, equipment, or appurtenances installed by Tenant shall conform with the requirements 01203.0020/321203.3 -52- B-54 of all municipal, state, federal, and governmental authorities including requirements pertaining to the health, welfare, or safety of employees or the public. 5.2 Maintenance and Repair. During the Term, Tenant shall, at Tenant's sole cost and expense, keep, and maintain the Leased Premises in good and sanitary order, condition, and repair. Tenant shall also at its sole cost and expense be responsible for any alterations or improvements to the Leased Premises permitted by Landlord under this Lease or otherwise necessitated as a result of the requirement of any municipal, state or federal authority. Tenant waives all right to make repairs at the expense of Landlord, and Tenant shall obtain any required governmental permits for any maintenance or repair work required under this Lease. Tenant waives all rights provided for by the Civil Code of the State of California to make said repairs. Tenant agrees on the last day of the Term or sooner termination of this Lease, to surrender the Leased Premises in the same condition as when originally received by Tenant and in a good, clean, sanitary and safe condition. 5.3 Free from Liens. Tenant shall keep the Leased Premises free from any liens arising out of any work performed, material furnished, or obligation incurred by Tenant or on behalf of Tenant. Tenant shall pay or cause to be paid any and all such claims or demands before any action is brought to enforce same against the Leased Premises. 5.4 No Construction Obligations. Landlord has no construction obligations of any kind under this Lease. 6.0 INSURANCE AND INDEMNIFICATION. 6.1 Insurance Provided by Landlord. Landlord has no obligation to Tenant to maintain any insurance on the Leased Premises. Any insurance maintained by Landlord shall be solely for the benefit of Landlord and Tenant waives any right of recovery from Landlord, its officers and employees, and Landlord hereby waives any right of loss or damage (including consequential loss) resulting from any of the perils insured against as a result of said insurance. 6.2 Insurance Provided by Tenant. (a) Tenant to Provide Personal Property Insurance. Tenant, at its expense, shall maintain fire and extended coverage insurance written on a per occurrence basis on the structures, its trade fixtures, equipment, automobiles, personal property and other materials within the Leased Premises from loss or damage to the extent of their full replacement value. (b) Tenant to Provide Liability Insurance. Tenant shall, at Tenant's sole cost and expense, but for the mutual benefit of Landlord and Tenant, maintain comprehensive general liability insurance insuring against claims for bodily injury, death or property damage occurring in, upon or about the Leased Premises on any area directly adjacent to the Leased Premises written on a per occurrence basis in 01203.0020/321203.3 -53- B-55 an amount not less than a combined single limit of ONE MILLION DOLLARS ($1,000,000) for bodily injury, death, and property damage. (c) Tenant to Provide Workers' Compensation Insurance. Tenant shall, at Tenant's sole cost and expense, maintain a policy of worker's compensation insurance in an amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both Tenant and Landlord against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Tenant in the course of conducting Tenant's business in the Leased Premises. (d) General Provisions Applicable to Tenant's Insurance. All of the policies of insurance required to be procured by Tenant under this Lease shall be primary insurance and shall name Landlord, its elected or appointed officers, employees, and agents as additional insureds. The insurers shall waive all rights of contribution they may have against Landlord, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to Landlord. Prior to the Lease Commencement Date and at least thirty (30) days prior to the expiration of any insurance policy, Tenant shall provide Landlord with copies of all applicable polices evidencing the required insurance coverages written by insurance companies acceptable to Landlord, licensed to do business in the State of California and rated A:VII or better by Best's Insurance Guide. In the event the City Manager of Landlord, or his/her designee ("Risk Manager") determines that (i) Tenant's activities in the Leased Premises creates an increased or decreased risk of loss to Landlord, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverages be obtained, Tenant agrees that the minimum limits of any insurance policy required to be obtained by Tenant may be changed accordingly upon receipt of written notice from the Risk Manager; provided that Tenant shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of Landlord within ten (10) days of receipt of notice from the Risk Manager. Landlord and Tenant hereby waive any rights each may have against the other on account of any loss or damage occasioned by property damage to the Leased Premises, or Tenant's trade fixtures, equipment, personal property or inventory arising from any risk generally covered by insurance against the perils of fire, extended coverage, vandalism, malicious mischief, theft, sprinkler damage, and earthquake sprinkler leakage. Each of the parties, on behalf of their respective insurance companies insuring such property of either Landlord or Tenant against such loss, waive any right of subrogation that it may have against the other. The foregoing waivers of subrogation shall be operative only so long as available in California and provided further that no policy is invalidated thereby. 6.3 Indemnification of Landlord. As material consideration to Landlord, Tenant waives all claims against Landlord for damage to the vehicles, equipment or other personal property, trade fixtures, leasehold improvements, goods, wares, inventory and merchandise, in, upon or about the Leased Premises and for 01203.0020/321203.3 -54- B_56 injuries to persons in or about the Leased Premises, from any cause arising at any time. Tenant agrees to indemnify Landlord, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (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 of Tenant, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the use of the Leased Premises by Tenant or its employees and invitees, or arising from the failure of Tenant to keep the Leased Premises in good condition and repair, as herein provided, or arising from the negligent acts or omissions of Tenant, or arising from Tenant's negligent performance of or failure to perform any term, provision covenant or condition of this Lease, whether or not there is concurrent passive or active negligence on the part of Landlord, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of Landlord, its officers, agents or employees, who are directly responsible to Landlord, and in connection therewith: a. Tenant 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 attorneys' fees incurred in connection therewith; and b. Tenant will promptly pay any judgment rendered against Landlord, 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 Tenant hereunder; and Tenant agrees to save and hold Landlord, its officers, agents, and employees harmless therefrom. In the event Landlord, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Tenant 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 Tenant, Tenant agrees to pay to Landlord, its officers, agents or employees, any and all costs and expenses incurred by Landlord, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. l ►9•►UVA 121 ► ;►NIR OUC 7.1 Abandonment. Tenant shall not vacate or abandon the Leased Premises at any time during the Term; and if Tenant shall abandon, vacate or surrender the Leased Premises or be dispossessed by process of law, or otherwise, any personal property belonging to Tenant and left on the Leased Premises shall be deemed to be abandoned, at the option of Landlord. 7.2 Surrender of Lease. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of Landlord, terminate all or any existing authorized subleases or 01203.0020/321203.3 -55- B-57 subtenancies, or may, at the option of Landlord, operate as an assignment to it of any or all of such subleases or subtenancies. 8.0 DAMAGE AND DESTRUCTION. In the event of the total or partial destruction of the Leased Premises, the Term, and unless the cause for such total destruction is the result of the of the sole gross negligence or willful misconduct of Landlord, its City Council, Boards, Commissions, directors, officers, employees, or agents, in which the Leased Premises are declared unsafe or unfit for occupancy by any public officer or entity having jurisdiction to so declare, then this Lease shall be terminated, and the Leased Premises shall be surrendered to Landlord. 9.0 ASSIGNMENT AND SUBLETTING. Tenant may not assign this Lease or sublet all or any portion of the Leased Premises, without the prior written consent of Landlord, which consent may be withheld in the reasonable discretion of Landlord and must be made only to a permitted assignee in accordance with Section 4.5 of the Services Agreement. For purposes of this Lease, an assignment shall be deemed to 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 Tenant, taking all transfers into account on a cumulative basis. Landlord shall be under no obligation to consider a request for Landlord's consent to an assignment until Tenant shall have submitted in writing to Landlord a request for Landlord's consent to such assignment together with audited financial statements of Tenant. . 10.0 DEFAULT AND REMEDIES. 10.1 Default by Tenant. The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant: a. The failure by Tenant to make any payment of Rent or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of three (3) days after written notice by Landlord to Tenant. b. A failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant, where such failure shall continue for a period of thirty (30) days after written notice by Landlord to Tenant; provided, however, that if the nature of the default involves such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within such thirty (30) day period and thereafter diligently prosecutes said cure to completion. c. Tenant's default or breach of the Services Agreement. d. Vacation or abandonment of the Leased Premises for a period of thirty (30) consecutive days by Tenant. 01203.0020/321203.3 -56- B-58 e. The making by Tenant of any general assignment or general arrangement for the benefit of creditors, or the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days); or the appointment of a trustee or a receiver to take possession of substantially all of Tenant's assets located in or about the Leased Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located in or about the Leased Premises or of Tenant's interest in this Lease, where such seizure is not discharged in thirty (30) days. Any repetitive failure by Tenant to perform its agreements and obligations, though intermittently cured, may, at the sole election of Landlord, be deemed an incurable default. Two (2) breaches of the same covenant within a sixty (60) day period, a notice having been given pursuant to (a) or (b) above for the first breach, or three (3) of the same or different breaches at any time during the term of this Lease for which notices pursuant to (a) or (b) above were given for the first two (2) breaches shall, at the election of Landlord, be conclusively deemed to be an incurable repetitive failure by Tenant to perform its obligations. Any notice required to be given by Landlord under this Section 10 shall be in lieu of and not in addition to any notice required under Section 1161 of the California Code of Civil Procedure. 10.2 Remedies. In the event of any such default or breach by Tenant, Landlord may at any time thereafter, without further notice or demand, rectify or cure such default, and any sums expended by Landlord for such purposes shall be paid by Tenant to Landlord upon demand and as additional rental hereunder. In the event of any such default or breach by Tenant, Landlord shall have the right (i) to continue the lease in full force and effect and enforce all of its rights and remedies under this Lease, including the right to recover the rental as it becomes due under this Lease, or (ii) Landlord shall have the right at any time thereafter to elect to terminate the Lease and Tenant's right to possession thereunder. Upon such termination, Landlord shall have the right to recover from Tenant: a. The worth at the time of award of the unpaid rental which had been earned at the time of termination; b. The worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; 01203.0020/321203.3 -57- B-59 C. The worth at the time of award of the amount by which the unpaid rental for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and d. Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under the lease or which in the ordinary course of things would be likely to result therefrom. The "worth at the time of award" of the amounts referred to in subparagraphs (i) and (ii) above shall be computed by allowing interest at three percent (3%) over the prime rate then being charged by Bank of America, N.A. but in no event greater than the maximum rate permitted by law. The worth at the time of award of the amount referred to in subparagraph (iii) above shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1 %), but in no event greater than ten percent (10%). As used herein "rental" or "rent" shall be the fair market rental set forth in Section 1.8, including the other sums payable hereunder which are designated "rent", "rental" or "additional rental" and any other sums payable hereunder on a regular basis. Such efforts as Landlord may make to mitigate the damages caused by Tenant's breach of this Lease shall not constitute a waiver of Landlord's right to recover damages against Tenant hereunder, nor shall anything herein contained affect Landlord's right to indemnification against Tenant for any liability arising prior to the termination of this Lease for personal injuries or property damage, and Tenant hereby agrees to indemnify and hold Landlord harmless from any such injuries and damages, including all attorney's fees and costs incurred by Landlord in defending any action brought against Landlord for any recovery thereof, and in enforcing the terms and provisions of this indemnification against Tenant. Notwithstanding any of the foregoing, the breach of this Lease by Tenant, or an abandonment of the Leased Premises by Tenant, shall not constitute a termination of this Lease, or of Tenant's right of possession hereunder, unless and until Landlord elects to do so, and until such time Landlord shall have the right to enforce all of its rights and remedies under this Lease, including the right to recover rent, and all other payments to be made by Tenant hereunder, as they become due. Failure of Landlord to terminate this Lease shall not prevent Landlord from later terminating this Lease or constitute a waiver of Landlord's right to do so, including the prosecution of any unlawful detainer action against Tenant. 10.3 No Waiver. The waiver by Landlord of any term, covenant or condition shall not be deemed to be a waiver of such term, covenant or condition on any subsequent breach of the same or any other term, covenant or condition in this Lease. Acceptance of late payment of Rent by Landlord shall not be deemed a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease. 01203.0020/321203.3 -58- B_60 10.4 Landlord's Default. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than thirty (30) days after written notice by Tenant to Landlord and to the holder of any first mortgage or deed of trust covering the Leased Premises whose name and address shall have theretofore been furnished to Tenant in writing, specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for performance then Landlord shall not be deemed in default if Landlord commences performance within a (30) day period and thereafter diligently prosecutes the same to completion. Tenant shall have the right to terminate this Lease as a result of Landlord's default but not to any damages. 10.5 Sale of Leased Premises. In the event of the sale of the Premises, Landlord shall be entirely freed and relieved of all liability under any and all of the covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale. The purchaser, at such sale or any subsequent sale of the Leased Premises, shall be deemed, without any further agreements between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out each and all of the covenants and obligations of Landlord under this Lease. 11.0 CONDEMNATION. In the event a condemnation or a transfer in lieu thereof results in a taking of any portion of the Leased Premises, Landlord may, or in the event a condemnation or a transfer in lieu thereof results in a taking of twenty-five percent (25%) or more of the Leased Premises, Tenant may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this Lease. Tenant shall not be entitled to share in any portion of the award and Tenant expressly waives any right or claim to any part thereof. If this Lease is not terminated as above provided, Landlord shall use a portion of the condemnation award to restore the Leased Premises. 12.0 MISCELLANEOUS. 12.1 Entry and Inspection. Tenant shall permit Landlord and its agents to enter into and upon the Leased Premises at all reasonable times for the purpose of inspecting the same for compliance with applicable municipal or other laws, rule, and regulations, for the purpose of assuring that Tenant is complying with the terms and conditions of this Lease, for the purpose of confirming maintenance of the Leased Premises as required by this Lease, and/or to evaluate the completion of work requested and undertaken by Tenant (including compliance with correction notices, if any), or for the purpose of posting notices of non -liability for alterations, additions or repairs, or for the purpose of placing upon the Leased Premises any usual or ordinary signs or any signs for public safety as determined by Landlord. Landlord shall be permitted to do any of the above without any liability to Tenant for any loss of occupation or quiet enjoyment of the Leased Premises. Tenant shall permit Landlord, at any time within six (6) months prior to the expiration of this Lease, to place upon the Leased Premises any usual or ordinary "For Lease" signs, and during such six (6) 01203.0020/321203.3 -59- B-61 month period Landlord or his agents may, during normal operating hours, enter upon said Leased Premises and exhibit same to prospective tenants. 12.2 Estoppel Certificate. If, as a result of a proposed sale, assignment, or hypothecation of the Leased Premises by Landlord, or at any other time, an estoppel certificate may be requested of Tenant. Tenant agrees, within seven (7) days after written request, to deliver such estoppel certificate in the form reasonable required by Landlord addressed to any existing or proposed mortgagee or purchaser, and to Landlord, together with Tenant's current financial statements. Tenant shall be liable for any loss or liability resulting from any incorrect information in the estoppel certificate, and such mortgagee and purchaser shall have the right to rely on such estoppel certificate and financial statement. 12.3 Jurisdiction and Venue. The parties hereto agree that the State of California is the proper jurisdiction for litigation of any matters relating to this Lease, and service mailed to either party as set forth herein shall be adequate service for such litigation. The parties further agree that Los Angeles County, California is the proper venue for any litigation. 12.4 Successors in Interest. All covenants shall, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties. 12.5 Entire Agreement. This (i) Lease covers in full each and every agreement of every kind or nature whatsoever between the parties hereto concerning this Lease; (ii) supersedes any and all previous obligations, agreements and understandings between the parties, oral or written; and (iii) merges all preliminary negotiations and agreements of whatsoever kind or nature herein. Tenant acknowledges that no representations or warranties of any kind or nature not specifically set forth herein have been made by Landlord or its agents or representatives. 12.6 Authority. Tenant represents that each individual executing this Lease on behalf of Tenant is duly authorized to execute and deliver this Lease on behalf of Tenant, in accordance with a duly adopted resolution of the Board of Directors, and that this Lease is binding upon Tenant in accordance with its terms. Tenant represents and warrants to Landlord that the entering into this Lease does not violate any provisions of any other agreement to which Tenant is bound. 12.7 Relationship of Parties. The relationship of the parties is that of Landlord and Tenant. Landlord does not in any way or for any purpose become a partner of Tenant in the conduct of Tenant's activities, programs, services, or charitable purposes or activities. 12.8 Nondiscrimination. Tenant herein covenants for itself, its heirs, executors, administrators and assigns and all persons claiming under or through it, and this Lease is made and accepted upon and subject to the condition that there shall be 01203.0020/321203.3 -60- B-62 no discrimination against or segregation of any person or group of persons on account of race, sex, marital status, color, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Leased Premises herein leased, nor shall Tenant itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the Leased Premises. 12.9 Notices. Wherever in this Lease it shall be required or permitted that notice and demand be given or served by either party to the other party, such notice or demand shall be given or served in writing and shall not be deemed to have been duly given or served unless in writing, and (i) by being personally served which shall be deemed received as of the personal deliver; (ii) by deliver by overnight carrier which shall be deemed received as of the delivery to the party; or (iii) by certified mail return receipt requested, postage prepaid, addressed which shall be deemed delivered three (3) days after deposit with the US Postal Service, to (a) Landlord, to City of Rancho Palos Verdes, at 30940 Hawthorne Blvd, Rancho Palos Verdes, California 90275, Attn: City Manager, with a separate concurrent copy to the City Attorney at the same address; and (b) Tenant as specified in Section 1.6. Either party may change the address set forth herein by written notice sent as provided hereinabove. 12.10 Waiver. No delay or omission in the exercise of any right or remedy by a non -defaulting party shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. 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 Lease. 12.11 Force Majeure. If either party shall be delayed or prevented from the performance of any act required in the Lease by reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, restrictive governmental laws or regulations or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay, provided such party provides the other party written notice of such event within ten (10) days of the commencement of the delay. Nothing in this Section shall excuse Tenant from the prompt payment of the annual rent or other charge or payment required of Tenant except as may be expressly provided elsewhere in this Lease. 12.12 Attorney's Fees. In the event that any action or proceeding is brought by either party to enforce any term or provision of this Lease, the prevailing party shall recover its reasonable attorneys' fees and costs incurred with respect thereto. 01203.0020/321203.3 -61- B-63 12.13 Recordation of Lease. In accordance with Government Code Section 37393, this Lease shall be recorded in the Official Records of Los Angeles. Upon termination of the Lease, Tenant shall execute and acknowledge any documents reasonably requested by Landlord in order to terminate the Lease of record. This obligation shall survive termination of this Lease for any reason. 12.14 Time. Time is of the essence of every provision of this Lease. 12.15 Exhibits Incorporated. Exhibits A & B attached to this Lease are made a part hereof as if fully set forth herein. IN WITNESS WHEREOF, the parties have duly executed this Lease on the day and year first above written. Iii►/_1►1S STAY GREEN, INC, a California corporation By: _ Its: By: _ Its: LANDLORD: RANCHO PALOS VERDES, a municipal corporation Ken Dyda, Mayor ATTEST Teri Takaoka, Deputy City Clerk APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP In David J. Aleshire, City Attorney [END OF SIGNATURES] 01203.0020/321203.3 -62- B-64 OX: IL3 k i_ LEGAL DESCRIPTION OF PROPERTY That certain real property in the City of Rancho Palos Verdes, County of Los Angeles, State of California legally described as: TRAT PORT -ION OF BLOCK H, AS SRO" ON ;41 -NP OF THE RMCHO LOS PALOS VI ARDES, IN THE COUNTY OF LOS ANGELES. STATE OF CALIFOI4ja, ALLOTTXV TO i?TtUk S DZXBY, GY bEC=FtEE IN PARTITION !N THE ACL'XOH "FgIY.nY, ET A.L. V5. VEN, :ST AL.-, CASSE NO. 2373, IN TPP DZ:STRICT CCaURT OF THE .17Tri JUDICIAL DISTRICT OF THE STATE Or CALIFORNIA, IN AND FOR THE COUNTY OF LOS hNGELES AND ENTERED IN 9000 4 PACE 57 OF .JUDGMENTS„ IN THE SUPERIOR COURT OF SAX0 COUNTY, DESCRIDED AS FOLLOWS: COMMENCING AT A POINT, SAID P01VT BEING THE COUNTY OF LOS AjRGELES, TRIANGULATION MONUMENT SAF ]'i EDRO HILLS D-7, AND HAVING STATE COOR,DINhTES OF 14ORTR 4,019,330.05, EAST Vii, 164,227.94` SMD POINT BEING LOCATED ON A Pormr" ar Lpkiiu "oft m or I'ALOS VERDES DR1VE, OvERLOOKING POINT VICENTE LIGHTHOUSEP 7HENCE NORTH 53 DEGREES 31 KINUTES 58 SECONtS EAST 415..07 FEET TO 744 CENTER OF THE 1' OATa-WEST CCN T1 RAZT OF OATTERY 240E THENCE NORTH 51 DEGREES 59 MINUTES 13 SECON13S EAST 5:5 -CO FEET: THENCE NORT11 33 DEGREES CC KINUTE:S 47 SSCONDS WEST 56.15 FEET TO THE ' aVe PC}IN"1' OF BEGINNING; THENCE NORTH 36 DEGREES 00 MINUTES 43 SECONDS EAST 19.31 FEET TO THE SECINNI#+tC OF A TAUGENT CURVE CONCAViE SoUTHgftL , HAVItJG A RAMI: or ios.co Fe=j THENCE EASTERLY ALONG SAID CURVE '1`HRODCH A CENTRAL ANGLE OF 60 DEGREES 58 MINUTES 07 SECONDS. A DISTANCE OF 11.1.73 FEET; THENCE SOUT9 83 DEGREES 01 hIN U TES 10 SECONDS EAS -C 69_36 FEET: T14ENCE SOUTH e6 DEGREES 20 HINU'IES 48 SECONDS EAST 312.34 FEET; THENCE NORTH 01 DECMtS 46 MINUTES 53 SECONDS REST 109. 94 FEET; THENCE NORTH 81 DE -GREETS 44 MINUTES 11 SECCWDS EAST 278.53 FEET; 1HENCE SOUTH 88 DEGREES 50 MINUTES 35 SECONDS EAST 60.40 FEET; THENCE sowrH 11 DEGREES S5 MINUTES 40 SECONDS EAST 57.t?3 FLET; 71:1ENCE SOUTE1 62 DEGREES 00 MINUTES 28 SECONDS EAST 226.14 !FE ET; THENCE NORTH 62 DEGREES 19 HINUTES 00 SECONDS -EAST 184. 1.- FEET TO A POINT IN THE SOUT" RIGHT-OF-WAY LINE OF H,I WTHORNE BOULEVARD, SAID POINT WING A TAIIGE: r CURVE CONCRVE NORTOVASTERLY RAVIVir. A RADIUS OF 550.00 FEET] THkNCE SOUTHEASTERLY ALONG SAID CURVE, THROUC:H A CENTRAL ANGLE OF O;Z IDEGREES 18 MINUTES 26 SECONDS, A DISTAXi_'E OF 22_15 FEET; THENCE SOUTH 62 DEGREES 19 MINUTES 00 SECONDS WEST 79.9aj THENCB SOUTH 84 DEGRICES 31 HINUTtS 12 SECONDS ':TEST 216.25 gtE;;` T14EJRCE 24ORTH 02 DECREES 24 KIND FS 09 SECONDS gEST 55-04 FEET, THENCE 3R09TH 87 DEGREES 34 iYlt�iUTC5 50 SECONDS WEST 231.16 FEET; TNSi'+i'CE SOUTH 02 ID> GHEES .23 MINUTES 42 SECONDS EAST 719.C6 FEET; THENCE NORTH 83 PEGRP.ES 00 MINUTES 49 SECONDS WEST 166.47 FEtFT1 THEM= ':C.+RT-Ef 86 DEGREES 20 MINUTES 48 SECONDS WEST 212.:5 FEET,; THENCE NvRTH 83 DErOPMES 01 MINTJTES ID SECDNDS WEST 69-96 FEET TO A POINT E3grNd A TANGENT CtjRvr CONCAVE SOUT13EPLY, RAVINTC A RADIUS or GS.Va FEET; THENCE WESTEFLLy ]LOBO BAIT} CUFtWE f THROUGH A CE NTR;LL ANGLE OP +60 DEGREES 5B HINTTES Cil CECONDS, A DISTANCE OF 90_54 FEET; THENCE SOUTH 36 DEwmrs 00 MINUTES 43 SECONDS WEST 25.074 FEET; THENCE 114ORTH 38 VE3GRZE5 UO MINUTES 47 SECOHDIS WEST 20.nO PtET TO THE TAVE POINT OF B€GINNIVa. 01203.0020/321203.3 -63- B-65 IW:/;11:1W] LEASED PREMISES 01203.0020/321203.3 -64- 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 ) ss. On , 201_ before me, a notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within 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. Ahl.- WITNESS my hand and official seal. Notary Public 01203.0020/321203.3 'N -65- B-67 STATE OF CALIFORNIA ) COUNTY OF ) ss. On , 201_ before me, a notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within 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 foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public State of California that the -66- B_68