CC SR 20200616 G - Stay Green Fuel Modification Amendment
CITY COUNCIL MEETING DATE: 06/16/2020
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA TITLE:
Consideration and possible action to amend the Amended and Restated Agreement with
Stay Green, Inc. for expanded fuel modification services.
RECOMMENDED COUNCIL ACTION:
(1) Approve Amendment No. 1 to the Amended and Restated Agreement with Stay
Green, Inc. for expanded fuel modification services at an annual not-to exceed
cost of $1,561,111; and
(2) Authorize the Mayor to execute the extension.
FISCAL IMPACT: An increase of $154,138 to the Stay Green contract (in addition to
the $99,715 included in the existing agreement), for a total amount
of $253,853 for fuel modification. Amendment No. 1 will also
increase the contract sum from $5,245,922 to $5,400.060 with an
annual not-to-exceed amount increase from $1,409,973 to
$1,561,111.
Amount Budgeted: $253,853
Additional Appropriation: N/A
Account Number(s): 101-400-3230-5101
(General Fund – Fuel Modification, Repair & Maintenance Services)
ORIGINATED BY: James S. O’Neill, Project Manager
REVIEWED BY: Elias Sassoon, PE, Director of Public Works
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Amendment No. 1 to the Amended and Restated Agreement with Stay Green,
Inc. (page A-1)
B. February 4, 2020 Staff Report, including the Amended and Restated
Agreement (page B-1)
C. February 4, 2020 Staff Report on Fuel Modification (page C-1)
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BACKGROUND AND DISCUSSION:
On February 4, 2020, the City Council received and filed a presentation on an updated
Fuel Modification Plan (Attachment C) and other wildfire preparedness efforts. That
presentation highlighted 94 fuel modification areas the City is responsible for.
The report states that after the detailed mapping was complete, the total acreage of fuel
modification areas is 278.73 acres (not 65.35 acres as previously thought). To address
the total increased acreage, the contracts with Fire Grazers (the City’s goat vendor) and
Stay Green had to be amended, as the original contracts did not address the total
acreage of all fuel modification areas. The contract with Fire Grazers was amended at
the February 4, 2020 City Council meeting to address the total acreage for which goats
can be utilized (Attachment C). Remaining fuel modification areas had not yet been
assessed by Stay Green staff, and therefore an amendment to address those areas
was not ready at that time.
The attached Amendment No. 1 to the Stay Green agreement reflects the need for Stay
Green to perform fuel modification on a total of 80.53 acres. The cost of this work is not
to exceed $220,853. Amendment No. 1 to the Amended and Restated Agreement
(Attachment A) with Stay Green includes a previously approved amount of $99,715,
which addresses some of this work. The proposed amendment is needed to authorize
Stay Green to perform fuel modification services needed for all 80.53 acres in the 2020
calendar year, and based on the rates included in their agreement (Attachment B).
There is also the possibility that trimming may be needed to address re-growth in some
areas later this year. For that purpose, Staff recommends this amendment include a
15% contingency of $33,000 to perform any additional trimming that may be required,
for a total amount of $253,853 (15% is the same percentage of contingency included in
the Fire Grazers agreement). Since an amount of $99,715 is already encumbered, the
total amount of the amendment is $154,138.
Of the work to be performed in the 2020 calendar year, about $120,000 of this work is
expected to be completed before June 30, 2020, and is therefore funded out of Fiscal
Year 2019-20. The rest will be completed after this date, and will therefore be funded out
of FY 2020-21.
ALTERNATIVES:
In addition to the Staff recommendations, the following actions are available for the City
Council’s consideration:
1. Direct Staff not to proceed with the expanded fuel modification services for
FY 2020-21.
2. Take other action, as deemed appropriate by the City Council.
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CITY COUNCIL MEETING DATE: 02/04/2020
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to amend the existing Service Agreement with Stay
Green Inc. for City-wide landscape services
RECOMMENDED COUNCIL ACTION:
(1) Award the Amended and Restated Agreement extending the term of the service
agreement with Stay Green Inc. for a one-year, in a form approved by the City
Attorney’s office, for City-wide landscape services.
FISCAL IMPACT: None
Amount Budgeted: $1,431,846
Additional Appropriation: None
Account Number(s): 101-400-3150-5201 $145,000 (General Fund – Trails & Open Space, Repair & Maint. Services)
101-400-3151-5201 $470,651 (General Fund – Park Maint., Repair & Maint. Services
101-400-3230-5201 $99,715
(General Fund – Fuel Modification, Repair & Maint. Services)
202-400-3180-5201 $335,480
(Gas Tax – Landslide Maint., Repair & Maint. Services)
223-400-0000-5201 $355,000
(Subregion 1 Fund – Repair & Maint. Services)
221-400-0000-5201 $ 26,000
(Measure M – Repair & Maint. Services)
ORIGINATED BY: Ron Dragoo, PE, City Engineer
REVIEWED BY: Elias Sassoon, PE, Director of Public Works
APPROVED BY: Ara Mihranian, Interim City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Amended and Restated Agreement to Contract #FY2017-010-03
(Contract Services Agreement with Stay Green, Inc. dated February 1,
2017, as amended) (page A-1)
B. Stay Green Rate Sheet – Equipment (page B-1)
C. Stay Green Rate Sheet – Labor (page C-1)
BACKGROUND AND DISCUSSION:
B-1
On July 19, 2016, the City Council awarded a contract to Stay Green, Inc. for labor and
equipment for City landscaping, general maintenance, and litter and trash services. A
change order and lease agreement was awarded by the City Council on January 17,
2017, and a three-year contract was entered into on February 1, 2017 (the Agreement).
The term of the Agreement is set to expire on January 31, 2020. The City and
Contractor desire to exercise the right to renew the Agreement for the first of the three
one-year options, extending the term of the Agreement beyond its January 31, 2020
experation date. This amendment to the Agreement will extend the term through
February 4, 2021 (Attachment A).
The Agreement was for $3,224,909.52 with a term of three years. On October 17, 2017,
the City and Contractor entered into Amendment No. 1 to the Agreement to increase the
size of the landscaping crews. Amendment No. 1 also increased the contract sum to
$3,739,234.52 and established a not-to-exceed annual amount of $1,332,132.84. On
June 18, 2019, City and contractor entered into Amendment No. 2 to the Agreement,
expanding the services to include fuel modification services for FY19-20, increasing the
annual not-to-exceed annual amount for FY19-20 to $1,431,846.84, and the contract
sum to $3,838,949.52. On July 16, 2019, City and contractor entered into Amendment
No. 3 to the Agreement, correcting the contractor’s rates for fuel modification services,
and to add a deadline for completion for each fuel modification task. As Staff are
pleased with the work performed by Stay Green, Staff recommends the City Council
extend the term of the agreement by exercising the first of three potential one -year
options provided by the Agreement through February 1, 2021. This extension of the
term also requires an increase of the contract sum to $5,245,922.92, with an annual
not-to-exceed amount of $1,406,973.40.
After numerous meetings and discussions with Stay Green management, Staff
recommends entering the attached Amended and Restated Agreement to clarify the
scope of services and schedule of compensation (Attachment A). The current format
bases the compensation on a detailed list of rates for personnel and equipment. This
format makes it difficult for the City to track the amount or total cost of work performed
on any individual task. The new format would lay out the Contractor’s compensation in
two parts: First, the Contractor has provided the City with an updated rate sheet for both
the Contractor’s equipment and labor in providing the services. These rate sheets are
attached to this report (Attachments B and C). Second, the Amended and Restated
Agreement includes sub-budgets for each of the services, which reflect proposed
monthly budgeted expenditures for services provided to maintain City medians, right-of-
way areas, park facilities, and litter and trash services. It also provides a sub-budget for
additional work orders and materials deemed necessary by the City throughout the
extended term, and a budget for fuel modification work to be performed. The major
components of expenditures are outlined as follows:
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Services or Work areas
Sub-Budgeted
Monthly
expenditure
Sub-Budgeted
Annual
expenditure
City medians $24,767.60 $297,211.20
Right-of-way areas $22,516.00 $270,192.00
Park sites* $30,396.60 $135,096.00
Litter & trash pick-up (7 days/week) $11,258.00 $364,759.20
Subtotals $88,938.20 $1,067,258.40
Budget for additional work orders & materials As needed $240,000.00
Fuel Modification As needed $99,715.00
Total for the one-year extension $1,406,973.40
Staff anticipates that a bidding process will be conducted for fuel modification services
during the term of the Amended and Restated Agreement. As such, fuel modification
services, beyond those performed under the proposed extended term here, would be
performed under a separate contract.
*The schedule of compensation gives further breakdown of the budgeted expenditures
for each park sites as follows:
Work Area
Sub-Budgeted
Monthly
Expenditure
Sub-Budgeted
Annual
Expenditure
Abalone Cove $1,442.66 $17,311.92
City Hall $1,744.62 $20,935.44
Clovercliff Park $738.11 $8,857.32
Del Cerro $2,147.22 $25,766.64
Eastview $3,623.44 $43,481.28
Entradero $2,147.22 $25,766.64
Hesse $6,911.37 $82,936.44
Ladera Linda $2,180.77 $26,169.24
Point Vicente Interpretive Center $2,918.88 $35,026.56
Ryan Park $5,099.65 $6,1195.8
Vanderlip $1,442.66 $17,311.92
Subtotals $30,396.60 $364,759.20
Standard landscaping and general maintenance at identified sites will be billed at the
agreed-upon hourly rates. Other services will be provided as deemed necessary by
Staff, specifically the Maintenance Superintendent, on a work order basis. For that
purpose, the proposed amendment includes $240,000 as a budget for such as-needed
tasks and materials. These as-needed tasks may include irrigation repair, event setups,
gopher control, and emergency response. Utilizing this format will help Staff keep track
of costs associated with as-needed tasks.
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As part of the proposed amended and restated agreement, Stay Green has agreed to
utilize battery-powered (or “E-power”) blowers. On January 1, 2019, Ordinance No. 611
took effect, banning gas-powered blowers in residential areas. Although the work
performed by Stay Green is not subject to that ordinance, Staff believes Stay Green’s
use of E-powered blowers is in line with the overall objectives of the ordinance and
minimizes unwanted noise and emissions, while setting an example for being used on
City grounds.
CONCLUSION:
Staff recommends the City exercise the first of three one-year options provided by the
contract services agreement (in a form approved by the City Attorney) in order to allow
Stay Green, Inc. to continue providing landscaping, general maintenance, fuel
modification, and litter and trash services to the City through February 4, 2021. The
schedule of compensation has been reformatted so that costs of services provided can
be tracked, and Stay Green has committed to utilizing battery-powered handheld
blowers.
ALTERNATIVES:
In addition to the Staff recommendation, the following action s are available for the City
Council’s consideration:
1. Take other action as deemed appropriate by the City Council.
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01203.0006f(i27835 I AMENDED & RESTATED PUBLIC WORKS AGREEMENT By and Between CITY OF RANCHO PALOS VERDES and STAY GREEN, INC. 1 B-5
AMENDED & RESTATED AGREEMENT FOR PUBLIC WORKS SERVICES BETWEEN THE CITY OF RANCHO PALOS VERDES AND STAY GREEN, INC. THIS AMENDED & RESTATED AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and entered into on February 4, 2020 by and between the CITY OF RANCHO PALOS VERDES, a California municipal corporation ("City") and STAY GREEN, INC., a California corporation ("Contractor"). City and Contractor may be referred to, individually or collectively, as "Party" or "Parties." RECITALS A. City and Contractor entered into an Agreement for Contractual Services dated February 1, 2017 ("Agreement") whereby Contractor agreed to provide all work, labor, materials, equipment, and services as set forth in the bid documents for the project entitled Labor and Equipment for City Landscaping, General Maintenance, and Liller & Trash Sen,ices (the "Services"). B. The term of the Agreement is from February 1, 2017 to January 31, 2020. The Agreement also provides for three one-year options to renew, based on Contractor performance and mutual written consent. The Contract Sum for the Agreement is $3,224,909.52, with an annual not-to-exceed amount of $1,074,969.84. C. On October 17, 2017, the City and Contractor entered into Amendment No. 1 to the Agreement to increase the volume of Contractor's Services by increasing the size of the landscaping crew and supplying all necessary materials and funding for the crews. Amendment No. 1 also increased the Contract Sum to $3,739,234.52 and established a not-to-exceed annual amount of $1 ,332, 132.84. D. On June 18, 2019, City and Contractor entered into Amendment No.2 to the Agreement, expanding the Services to include brush clearance for fuel modification services for FY 2019-20, increasing the annual not-to-exceed amount for FY 2019-20 to $1,431 ,846.84, and the Contract Sum to $3,838,949.52. E. On July 16, 2019, City and Contractor entered into Amendment No. 3 to the Agreement, correcting the Contractor's rates for fuel modification services, and to add a deadline for completion for each fuel modification task. F. The City and Contractor desire to exercise the right to renew the Agreement for the first of the three one-year options, extending the term of the Agreement to February 4, 2021 and increasing the Contract Sum for the Agreement to $5,245,922.92, with an annual not-to-exceed amount of$1,406,973.40. 01203 0006/6271135.1 B-6
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. WORK OF CONTRACTOR 1.1 Scope of Work. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Work" 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, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the work required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Contractor 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 Bid Documents. The Scope of Work shall include the "General Provisions" and "Special Provisions" in the bid documents for the project entitled Labor and Equipment For City Landscaping, General Maintenance and Litter & Trash Services, including any documents or exhibits referenced therein (collectively, "bid documents"), all of which are incorporated herein by this reference. In the event of any inconsistency between the terms of the bid documents and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. Contractor shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered. 1.4 Compliance with California Labor Law. (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 0 1203 0006/62 7835. I 2 B-7
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 ofthe 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 el 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. (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 01203.0006/627835.1 3 B-8
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 '12) times the basic rate of pay. (h) Workers' Compensation. California Labor Code Sections I 860 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 3 700 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 llJ._~ (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. Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor. 1.5 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, perrnits, registrations, and approvals as may be required by law for the performance of the services required by this Agreement. Contractor 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 Contractor'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. 1.6 Familiarity with Work. (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 perfonned, and (iii) fully understands the facilities. difficulties and restrictions attending perfonnance of the services under this 01203 .0006f6278J5.l 4 B-9
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. (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, perfonnance of any part of the work, shall issue a change order per Section 1.1 0 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 1.10 of this Agreement. 1.7 Protection and Care of Work and Materials. The Contractor shall adopt reasonable methods, including providing and maintaining storage facilities, 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 caused by City's own negligence. Stored materials shall be reasonably accessible for inspection. Contractor shall not, without City's consent, assign, sell, mortgage, hypothecate, or remove equipment or materials which have been installed or delivered and which may be necessary for the completion ofthe work. 1.8 Warranty. Contractor warrants all work under the Agreement (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-confom1ing materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or 0 1203.00061'6271135.1 5 B-10
the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (1 0) days after being notified in writing by the City of any defect in the work or non-conformance of the work to the Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act as soon as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair, remove and replace any portions of the work (or work of other contractors) damaged by its defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor's obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand. 1.9 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. 1.10 Additional Work and Change Orders. (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 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 ofthe Contractor ("Change Order"). All Change Orders must be signed by the Contractor and Contract Officer prior to commencing the extra work thereunder. 01203.0006/627835.1 6 B-11
(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". lfthe 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 1.10 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. 1.11 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 01203.0006/627835 I 7 B-12
incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "8" and any other provisions of this Agreement, the provisions of Exhibit "8" 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 Contractor 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 $5,245,922.92 (Five Million, Two Hundred and Forty Five Thousand, Nine Hundred and Twenty Two Dollars and Ninety Two Cents) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1.1 0. 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 the contract retention; (iii) payment for time and materials based upon the Contractor'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 4.4, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor 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 Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings. 2.4 Invoices. Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance. By submitting an invoice for payment under this Agreement, Contractor is certifYing compliance with all provisions of the Agreement. The invoice shall contain all information specified in Exhibit "C", and 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. Contractor shall not invoice City for any duplicate services performed by more than one person. 01203.0006/627!135.1 8 B-13
City shall. as soon as practicable, independently review each invoice submitted by the Contractor 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 Contractor which are disputed by City, or as provided in Section 7.3, City will cause Contractor to be paid within thirty (30) days of receipt of Contractor's correct and undisputed invoice; however, Contractor 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 that City does not cause Contractor to be paid within thirty (30) days of receipt of an undisputed and properly submitted invoice, Contractor shall be entitled to the payment of interest to the extent allowed under Public Contract Code Section 20 I 04.50. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor, not later than seven (7) days after receipt by the City, for correction and resubmission. Returned invoices shall be accompanied by a document setting forth in writing the reasons why the payment request was rejected. Review and payment by the City of any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law. 2.5 Waiver. Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor. ARTICLE 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is ofthe essence in the performance ofthis Agreement. 3.2 Schedule of Performance. Contractor 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 Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force 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 Contractor, 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 Contractor shall within ten ( 1 0) 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 0 1203.0006/6271!35.1 9 B-14
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 Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Inspection and Final Acceptance. City may inspect and accept or reject any of Contractor's work under this Agreement, either during performance or when completed. City shall reject or finally accept Contractor's work within forty-five ( 45) days after submitted to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City's acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as to amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Articles 1 and 5, pertaining to warranty and indemnification and insurance, respectively. 3.5 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 February 4, 2021, except as otherwise provided in the Schedule of Performance (Exhibit "D"). The City may, in its sole discretion, extend the Term for two additional one-year term(s). ARTICLE 4. COORDINATION OF WORK 4.1 Representatives and Personnel of Contractor. The following principals of Contractor (''Principals") are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Steve Seely _____ _ (Name) Branch Manager (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 Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor's staff and Oll03.0006f62783S.I 10 B-15
subcontractors. if any, assigned to perform the services required under this Agreement. Contractor shall notify City of any changes in Contractor'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 Contractor. Contractor 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. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor'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. Contractor expressly waives any claim Contractor may have to any such rights. 4.3 Contract Officer. The Contract Officer shall be Juan Hernandez, Public Works Superintendent or, such person as may be designated by the City Manager. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, 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 Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor 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. Contractor 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 Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 01203 00061627835.1 11 B-16
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance Coverages. Without limiting Contractor's indemnification of City, and prior to commencement of any services under this Agreement, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. (a) General liability insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 0 I, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. (b) Automobile liability insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c) Professional liability (errors & omissions) insurance. Contractor shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum an1ount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Contractor agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement. (d) Workers' compensation insurance. Contractor shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1 ,000,000). (e) Subcontractors. Contractor 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. (a) Proof of insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsements must be 01203 0006/627835.1 12 B-17
approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete~ certified copies of all required insurance policies~ at any time. (b) Duration of coverage. Contractor shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property~ which may arise from or in connection with the performance of the Services hereunder by Contractor, its agents, representatives, employees or subcontractors. (c) Primary/noncontributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured. (d) City's rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A-(or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. (t) Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City. and shall require similar written express waivers and insurance clauses from each of its subcontractors. (g) Enforcement of contract prov1s1ons (non-estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. (h) Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirementst or a waiver of any coverage normally provided by any insurance. Specific 01203.0006/627835.1 13 B-18
reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (I 0) day notice is required) or nonrenewal of coverage for each required coverage. (j) Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. (k) Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (I) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause. Contractor agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency's right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor's compensation. (o) Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. (p) Timely notice of claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance 01203 0006/627835 I 14 B-19
under this Agreement, and that involve or may involve coverage under any of the required liability policies. ( q) Additional insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 5.3 Indemnification. To the full extent permitted by law, Contractor 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 Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable ("indemnitors"), or arising from Contractor's or indemnitors· reckless or willful misconduct, or arising from Contractor's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: (a) Contractor 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; (b) Contractor 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 Contractor hereunder; and Contractor 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 Contractor 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 Contractor hereunder, Contractor 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. In addition, Contractor agrees to indemnify, defend and hold harmless the Indemnified Parties from, any and all claims and liabilities for any infringement of patent rights, copyrights or trademark on any person or persons in consequence of the use by the Indemnified Parties of articles to be supplied by Contractor under this Agreement, and of which the Contractor is not the patentee or assignee or has not the lawful right to sell the same. 01203 0006/627835 I 15 B-20
Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor 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 Contractor in the performance of professional services and work 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 Contractor and shall survive termination of this Agreement. 5.4 Notification of Third-Party Claims. City shall timely notify Contractor of the receipt of any third-party claim relating to the work under this Agreement. City shall be entitled to recover from Contractor its reasonable costs incurred in providing such notification. 5.5 Performance and Labor Bonds. Concurrently with execution of this Agreement Contractor shall deliver to the City, the following: (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 labor and materials 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 furnishing labor and/or materials in connection with the work under this Agreement. Both the performance and labors 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. 5.6 Sufficiency of Insurer or Surety. Insurance and bonds 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's 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 01203.0006/627835.1 16 B-21
services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by Section 5.5 may be changed accordingly upon receipt of written notice from the Risk Manager. 5. 7 Substitution of Securities. Pursuant to Public Contract Code Section 22300, substitution of eligible equivalent securities for any funds withheld to ensure performance under this Agreement may be permitted at the request and sole expense of the Contractor. Alternatively, the Contractor may, pursuant to an escrow agreement in a form prescribed by Public Contract Code Section 22300, request payment of retentions funds earned directly to the escrow agent at the sole expense of the Contractor. 5.8 Release of Securities. City shall release the Performance and Labor Bonds when the following have occurred: (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 Labor Bond until such claims have been resolved, Contractor has provided statutory bond, or otherwise as required by applicable law. ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION 6.1 Records. Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of payroll records in compliance with all applicable laws, or other documents relating to the disbursements charged to City and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of 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 Contractor's business, custody of the books and records may be given to City, and access shall be provided by Contractor's successor in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in providing access to the books and records if a public records request is 01203.0006/627835 I 17 B-22
made and disclosure is required by law including but not limited to the California Public Records Act. 6.2 Reports. Contractor 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. Contractor 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~ Contractor agrees that if Contractor 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 Contractor is providing design services, the cost of the project being designed. Contractor shall promptly notifY the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor 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 Contractor, 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 Contractor 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 Contractor will be at the City's sole risk and without liability to Contractor, and Contractor's guarantee and warranties shall not extend to such use. reuse or assignment. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted 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 Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor with respect to any documents and materials that may quality as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for the City. 6.4 Confidentiality and Release of Information. (a) information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer. (b) Contractor, its officers, employees, agents or subcontractors, shall not. without prior written authorization from the Contract Officer or unless requested by the City 0 1.203.0006162783;; .I 18 B-23
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 Contractor gives City notice of such court order or subpoena. (c) If Contractor, or any officer, employee, agent or subcontractor of Contractor. provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorneys' fees, caused by or incurred as a result of Contractor's conduct. (d) Contractor shall promptly notify City should Contractor, 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 Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION 7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Contractor 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. (a) Default: Cure. In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor 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 Contractor is in default, the City shall hold all invoices and shall proceed with payment on the invoices only when the default is cured. 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 Contractor does not cure the default. the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Contractor's default shall not 01203.0006/6271135.1 19 B-24
be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. (b) Dispute Resolution. This contract is subject to the provisions of Article 1.5 (commencing at Section 201 04) of Division 2, Part 3 of the California Public Contract Code regarding the resolution of public works claims of less than $3 75,000. Article 1.5 mandates certain procedures for the filing of claims and supporting documentation by the Contractor, for the response to such claims by the City, for a mandatory meet and confer conference upon the request ofthe Contractor, for mandatory non-binding mediation in the event litigation is commenced, and for mandatory judicial arbitration upon the failure to resolve the dispute through mediation. This Agreement hereby incorporates the provisions of Article 1.5 as though fully set forth herein. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (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 Contractor's acts or omissions in performing or failing to perform Contractor'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 Contractor, 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 Contractor 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 Contractor 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. 0 1203.0006/627835 .I 20 B-25
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, Contractor shall file a 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 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 Dollars ($ __ ) 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. Pursuant to Government Code Section 4215, Contractor shall not be assessed liquidated damages for delay in completion of the project when such delay was caused by the failure of the public agency or owner of the utility to provide for removal or relocation of utility facilities. 7.8 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days' written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor 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 Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor 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 Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the 01203.0006/627835.1 21 B-26
work and prosecute the same to completion by contract or otherwise, and the Contractor 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 Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable. shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other 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. 7.11 Unfair Business Practices Claims. In entering into this Agreement, Contractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials related to this Agreement. This assignment shall be made and become effective at the time the City renders final payment to the Contractor without further acknowledgment of the Parties. 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 Contractor, 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 Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. Contractor 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 Contractor's performance of services under this Agreement. Contractor 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. Contractor 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. !11203.0006/627835.1 22 B-27
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 effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor 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. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, 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. Contractor 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. Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § I I OJ et seq.t as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor 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, Contractor 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. 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 Boulevard, Rancho Palos Verdes, CA 90275 and in the case of the Contractor, to the person 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. All correspondence relating to this Agreement shall be serialized consecutively. 01203.0006/627835. I 23 B-28
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 Contractor 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 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 "non interests" pursuant to Government Code Sections 1091 or 1091.5. Contractor 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. Contractor 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, 01203.0006/62783~. I 24 B-29
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. Contractor 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. {\ f\/ Contractor's Authorized Initials -\:jt6 ~ 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 fonnally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. (SIGNATURES ON FOLLOWING PAGE] 0 I 203.0006/627835.1 25 B-30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written. ATTEST: Emily Colborn, City Clerk APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP William W. Wynder, City Attorney CITY: CITY OF RANCHO PALOS VERDES, a municipal corporation John Cruikshank, Mayor CONTRACTOR: By: __ ~~~~~----~~~~~ Name: ns Angelo ;~.,:~~-Title: Branch Manager Address: 26415 Summit Circle Santa Clarita, CA 91350 Two corporate orticer signatures required when Contractor is a corporation, with one signature required from each of the following groups: l) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chid Financial Officer or any Assistant Treasurer. CONTRACTOR'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 CONTRACTOR'S BUSINESS ENTITY. 01203,0006/627835. I 26 B-31
CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California } County of Los Angeles } On January 28,2020 before me, Magdalena Vf!!c!ea~.!!~~~M~~;,1 personally appeared Christopher Allan Angelo who proved to me on the basis of satisfactory evidence to be the person(~ whose name(~<@are subscribed to the within instrument and acknowledged to me that ~he/they executed the same in~er/their authorized capacity(ies), and that by <b!§Jher/their signature(5) on the instrument the person(~. or the entity upon behalf of which the person(~ 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. • MAGDALENA VANCE Notary Public -California z ~ Los Angeles County ~ Commlsalon II 2303398 -i. o o o o oMl ~,OV'U; t~trts !ug t9J&2!l INSTRUCTIONS FOR COMPLETING TillS FORM ADDITIONAL OPTIONAL INFORMATION This form complies ll'ith current California statutes regarding notary wording and. DESCRIPTION OF THE ATIACHED DOCUMENT ifnwled. should be completed and allached to the document. Acknowledgments from other states may be completed for documents being sent to that state so long City of RPV Agreement (T111e or desaipHon of attached document) Amended and Restated (TiUe or desaiption of attached document CXIIltinued) Number of Pages~ Document Date 1/28/2020 CAPACITY CLAIMED BY THE SIGNER 0 Individual (s) 0 Corporate Officer Chris Angelo. President I CEO (Title) 0 Partner(s) 0 Attorney-in-Fact o Trustee(s) o Other _________ _ 2015 Version www.NolaryCiasses.com 800-873-9865 as the wording does not require the California notary to l'iolate California notary law. • State and County infonnation must be the State and County where the document signer(s) personally appeared befon: the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the namc(s) of document signer(s) who personally appear at the time of notarization. • Indicate the corn:ct singular or plural forms by crossing ofT incorn:ct forms (i.e. l!elshcllhey;-is /Me) or circling the corn:ct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically n:producible. lmpn:ssion must not cover text or lines. If seal impn:ssion smudges, re-seal if a sufficient area permits, otherwise complete a diffen:nt acknowledgment form. • Signature of the notary public must match the signatun: on file with the office of the county clerk. •:0 Additional infonnation is not required but could he! p to ensure this acknowledgment is not misused or attached to a different document. •:• Indicate title or type of attached document, number of pages and date. ·> Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secn:tary). • Securely attach this document to the signed document with a staple:. B-32
CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California } County of Los Angeles } On January 28,2020 before me, Magdalena VfW,~!~"~t!'lee~.~~~'> personally appeared Steven Raymond Seely who proved to me on the basis of satisfactory evidence to be the person(-5) whose name(-s-)(@are subscribed to the within instrument and acknowledged to me that ~he/they executed the same in~er/their authorized capacity(ies), and that by Cl!f!lher/their signature(iij on the instrument the person(-5), or the entity upon behalf of which the person(~ 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. (Notary Public Seal) INSTRUCTIONS FOR COMPLETING THIS FORM ADDITIONAL OPTIONAL INFORMATION This form comptlts \Pith current California statutes regarding notary wording and, DESCRIPTION OF THE An ACHED DOCUMENT ifnttded. should be complettd and allached to the document. Acknowledgments from other states may be compltted for documents being sent to that state so long City of RPV Agreement (Title or desoiption of attached document) Amended and Restated (TiUe or desaiption of attached document continued) Number of Pages~ Document Date 1/28/2020 CAPACITY CLAIMED BY THE SIGNER 0 Individual (s) 0 Corporate Officer (fttle) 0 Partner(s) 0 Attorney-in-Fact o Trustee(s) 0 Other Branch Manager 2015 Version www.NotaryCiasses. com 800-873-9865 as the wording does not require the California notary to \•iolate California notary fall'. • State and County infonnation must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural fonns by crossing ofT incorrect fonns (i.e. M/she/lhe)o;-is /e~e) or cireling the correct fonns. Failure to correctly indicate this infonnation may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area pennits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. .,_ Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. •:• Indicate title or type of attached document, number of pages and date. .,_ Indicate the capacity claimed by the signer If the claimed capacity is a corporate officer, indicate the tide (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document with a staple. B-33
\ EXHIBIT "A" SCOPE OF SERVICES I. Contractor shall perform the following services for City 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 ("Services"): A. Contractor shall provide onsite service labor for Landscape Services, General Maintenance Services, Trash, Litter & Debris Services, and offsite Administrative Services for the amounts listed in Exhibit "C", Section I.A. 01203.0006/62783;_ I 1. 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. n. Landscape Services 1. 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. The specific details of the Landscape Services Section are described in the Performance Work Statement, Section P.3. 111. General Maintenance Services 1. 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 P.4.) IV. Trash, Litter, and Debris Services A-I B-34
1. Trash: Contractor shall remove all trash, recyclables and debris from City trash cans daily (7 days/week) in accordance with the Technical Exhibits, or Annexes A-E. 2. Litter and Debris: Contractor shall remove litter and debris found within the contract areas daily (7 days/week) in accordance with the Technical Exhibits. Litter and debris includes, but is not limited to: mattresses, furniture, cartons, bottles, paper, plastic, metal, tires, stones, soil, organic materials, flyers, and decorations .. 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 Cityowned parcels such as parks, trails, and open spaces. B. Contractor shall utilize the updated list of the vehicles and equipment listed in Exhibit "A-1 ", Amended Schedule of Equipment, in place of Annex D, Schedule of Equipment, to perform the Services. C. Miscellaneous Services. Contractor shall perform on-call services not covered in Section A above, as requested in writing by City's Contract Officer, in accordance with the rates quoted in Contractor's proposal in Exhibit "C-1" and "C-2", for an annual not-to-exceed amount listed in Exhibit "C." Schedule of Compensation. i. On-call services rendered shall be itemized on monthly invoices and be accompanied by City's Contract Officer's letter of authorization. D. Contractor shall provide and complete brush clearance for the rates and up to the total amount listed in Exhibit "C". The locations in need of brush clearance services will be identified by the City's Contract Officer. The location of brush clearance services will be described as either Category 1, Category 2, Category 3, or Category 4~ detailed below: 01203.0006/627835.1 t. Category 1 -Flat, low vegetation area. Category 1 areas are those areas that have been maintained year over year and thus have low vegetation. They are also accessible for the use of standard equipment such as but not limited to string trimmers and flail mowers. Removal of debris is not warranted. This category includes areas that do not exceed a 15% grade incline or decline. 11. Category 2-Flat, high vegetation area. Category 2 areas are high vegetation areas and are more complex to perform the brush clearance and will need more time due to access, equipment, steep terrain, thick overgrown brush/branches, and other factors. Debris created from the brush clearance may need to be removed due to the excessive litter created. They are also accessible for the use of standard equipment such as but not limited to string trimmers and flail mowers. This category includes areas that do not exceed a 15% grade incline or decline. A-2 B-35
m. Category 3 -Steep slope, low vegetation area. Category 3 areas are those areas that have been maintained year over year and thus have low vegetation. These areas are on steep slopes, and may have the potential to be deemed unsafe to perform brush clearance. If the Contractor determines that the area is unsafe, they will contact the Contract Officer to determine an adjusted plan. This Category would have areas that exceed 15% grade incline or decline but would not exceed 35%. If an area exceeds 35%, Contractor shall contact the City's Contract Officer to determine an adjusted plan. 1v. Category 4 -Steep slope, high vegetation. Category 4 areas are more complex to perform the brush clearance and will need more time due to access, equipment, steep terrain, thick overgrown brush/branches, and other factors. Debris created from the brush clearance may need to be removed due to the excessive litter created. These areas may have the potential to be deemed unsafe to perform brush clearance. If the Contractor determines that the area is unsafe, they will contact the Contract Officer to determine an adjusted plan. This category would have areas that exceed 15% grade incline or decline but would not exceed 3 5%. If an area exceeds 35%, Contractor shall contact the Contract Officer to determine an adjusted plan. II. As part of the Services, Contractor shall 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.) Ill. In addition to the requirements of Section 6.2, during performance of the Services, Contractor shall keep City's Contract Officer appraised of the status of performance by delivering the following status reports: A. Weekly Work Order Report (Reference: 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. 1 5.1.1.) D. Monthly Pesticide Use Report (Reference: Performance Work Statement, Section P.3.33.2.2.) 0!203 0006/627835.1 B-36
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 City's Contract Officer, and must be revised or corrected by Contractor without additional charge to City until found satisfactory and accepted City's Contract Officer. V. Contractor shall utilize the following personnel to accomplish the Services: A. Service Request Technician B. 2x Lead Landscaper C. Senior Landscaper D. Irrigation Technician E. 5x Landscape Laborer F. Lead Maintenance Worker G. Senior Maintenance Worker H. 3x Maintenance Worker I. 3x Litter Laborer J. Pest Control Technician 01203.0006/627835 I A-4 B-37
EXHIBIT "A-1" AMENDED SCHEDULE OF EQUIPMENT ITEM NO. Nomenclature Name BID CATEGORY 2-VEHICLES AND EQUIPMENT 1 Utility trailer Landscape trailer 2 Mower Zero turn radius, riding 3 Tractor Compact Utility 4 Box Blade Gannon 5 Mower Rotary cutter 6 Brush Chipper Trailer mounted 7 Chain saw large 8 Chain saw Medium 9 Personal Protective Clothing Chaps 10 Personal Protective Clothing Head, face, hearing protection 11 Pole Pruner Gas powered 12 Trimmer Gas powered 13 Blower Electic Powered 14 Hedge Trimmer Gas powered 15 Shovel Digging 16 Shovel Trench 17 Shovel Scoop 18 Shovel Transfer 19 Fork Manure 20 Rake Bow rake 21 Rake leaf 22 Rake Cultivator 23 Mattock 24 Axe Single bit 25 Hammer Sledge 26 Post Hole Digger 27 Hoe 28 lop per Bypass 29 Broom Push 30 Tools other 31 Wheelbarrow 32 Dump Truck 5-6 Yard 33 Truck Stake bed 34 Truck Utility bed 37 Trailer Equipment transport 38 Tool Kit General Mechanic 39 Tool Kit Coordless Power Tool Kit 42 Personal Protective Clothing Helmet, gloves, leathers 01203.0006/62783~ I A-5 B-38
63 Wrench set Combination 64 Wrench Pipe 65 Wrench Pipe 69 Jack Hammer Electric 72 Digger Post hole 74 Tools General Carpentry 78 Pressure Washer Gas powered, Cold Water 01203.0006/627835.1 A-6 B-39
EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) Deleted text is indicated in striketkrel:lgh, added text is indicated in bold italics. I. Section 4.4, Independent Contractor, is hereby amended to read as follows: 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, 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 Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service, except as otllerwise set fortll llereiu. Contractor 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. Contractor 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 Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. II. Section 5.5, Performance and Labor Bond, is amended to read: 5.5 Performance and babe1Payme11t Bonds. Concurrently with execution of this Agreement Contractor shall deliver to the City, the following: (a) A performance bond in the amount ofthe Contract Sum of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement. (b) A labor aRd materialspayme11t 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 furnishing labor and/or materials in connection with the work under this Agreement. Both the performance and laeet=spayme11t 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. Section 7.7, Liquidated Damages is deleted in its entirety and replaced with the following: 7. 7 Liq11idated Damages. Complai11ts ca11 be ge11erated by tltird parties or directly by City iltspecti011. Tile Co11tract Officer may iss11e an oral wami11g, or if wamiugs are 11ot effective, tlte Contractor Officer may issue a Corrective Actio11 Req11est (CAR) to tlte Co11tractor. /11 additio11 to iss11i11g 01203.0006/627835. I B-1 B-40
tile CAR, tire Contract Officer may assess liquidated damages agai11st Co11tractor. CARs slta/1 be classified in tire following categories: (a) Level 1: A minor 11011-systemic 11011-comp/iance witlt tlte Agreeme11t. Level I CARs ca11 typically be corrected 011 tlte spot or wit/tin 24 /tours. Failure of tlte Co11tractor to resolve Levell CARs within 24 /tours of notificatioll, tmless otherwise specified by tire Contract Officer, may result i11 an escalatio11 to Level II status. (b) Level II: A serious systemic no11-compliallce witlt tlte Agreement or a repeated 11011-comp/iaitce witll tlte Agreement. Level II CARs slla/1 result i11 liquidated damages in tile amount of $125 per day tlte Contractor does 1101 comply wit/1 tlte Agreement. Failure of tlte Contractor to resolve Levell/ CARs wit/till two (2) days of 11otificatio11, or s11clt period as tlte Contract Officer slta/1 prescribe, may res11lt ill a11 escalation to Levell// status. (c.~ Level Ill: A major systemic IIOII-complia11ce witlt tlte Agreement or a repeated 11011-complia11ce wlriclt lias previously been identified as a Level II CAR. Level II/ CARs sllall result in liq11idated damages i11 tile amou11t of $250 per day tile Co11tractor does 1101 comply witll tile Agreement. Failure of tlte Contractor to resolve Levell II CARs wit/tin two (2) days of Ilotification, or sucll period as tlte Contract Officer sllall prescribe, sltall result in a11 escalatio11 to Cure Notice status. (d) Cure Notice: An egregious systemic non-compliance witlt tile Agreement or a repeated 11011-comp/iance wllicll ltas previo11sly bee11 ide11tified as a Level II/ CAR. Cure Notices sit all result ilt liq11idated damages i11 tlte amou11t of $500 per day tile Co11tractor does 1101 comply witfl the Agreement. Cure Notices require tlte complete 011d immediate atte11tion of tire Co11tractor. Fail11re of lite Contractor to resolve tlte Cure Notice wit/till fifteen (15) days of notificatioll. or suclt period as tile Contract Officer s/ta/1 prescribe, may result i11 suspension or termination of tile co11tract. (e) Notltiltg llerei11 sltall be co11strued as limiting City's rigltt to terminate tlte Agreement for default by Cotttractor or otherwise limit tlte City's eltforcement rigltts or remedies tlte Agreement. Furthermore, notlti11g ltereill sltall be constr11ed as requiring City to impose liquitlated damages prior to terminating or taking other actio11. " III. Section 9.8, Lease of City Property, is hereby added as follows: 9.8. Lease o(Citv Property. Contractor a11d City slla/1 enter i11to tlte Lease Agreeme11t attached hereto as Exhibit "E" tltrougfl wlticfl Co11tractor will lease property at City Hall from wlticlt to conduct lite services described herein. Tlte Lease Agreeme11t slla/1 be co-termi11us witlt til is Agreeme11t. 01203.0006/6271!35.1 B-41
EXHIBIT "C~ SCHEDULE OF COMPENSATION I. Contractor shall perform the following tasks at the following rates: I A. Contractor shall perfonn the Services based on the following sub-budgets. Funds may be moved between the sub-budget with the approval of the Contract Officer. Sub-budgets are further detailed in subsections B, C, and 0, below. Task Categoa Sub-Total Routine Landscape Services (see B, below) $1 ,067,258.40 On-Call Services (see C, below) $240,000.00 Brush Clearance Services (see D, below) $99,715.00 Annual Total Bud~:;ct $1,406,973.40 B. Routine Landscape Services (Including Landscape Services, General Maintenance Services. Trash. Litter & Debris Services, and offsite Administrative Services) will be provided at the rates described in Exhibit "C-1 ", Labor Rates. 1. Contractor will bill Routine Landscape Services based on the following: • For Services conducted Monday-Friday, 6:00A.M. to 3:00 P.M., Contractor will bill the City at the "New Rage Rate." • For services conducted weekends or holidays, the Contractor will charge the "New OT Wage Rates''. • For the provision of two-man litter/trash pick-up teams on Saturday and Sunday, from 6:00A.M. to 3:00P.M., Contractor will charge "New Wage Rates." • Contractor will not double bill the City for one of Contractor's employees completing a work order and being part of a Routine Landscape team. • In conducting Routine Landscape Services, Contractor will charge the rates described in Exhibit "C-2", Contractor Provided Materials, for the use of materials. 01203 0006/627835.1 C-1 B-42
2. In conducting Routine Landscape Services, Contractor will complete the service in accordance with the following sub-budgets. Funds may be moved from one sub-budget to another at the discretion of the City's Contract Officer. R outme L d an scape s b b d b kd erv1ces su - u 1get rea own Areas of Work Monthlv Sub-Budget Cost Yearll: Sub-Budget Cost Medians $24,767.60 $297,211.20 Right of Ways $22,516.00 $270,192.00 7 Day Trash pick-up/Debris pick up $11,258.00 $135,096.00 Parks Landscaping $30,396.60 $364,759.20 Total $88,938.20 $1,067,258.40 The sub-budget for Park Landscaping is further subdivided as follows: P kL d b b d t b kd ar · an scapmg su -u tge rea own Parks/Site Monthll: Staff DavOfWeek City Hall $1,744.62 5 Man Crew Monday Abalone Cove $1,442.66 5 Man Crew Monday Del Cerro Park $2,147.22 5 Man Crew Monday Hesse Park $6.911.37 5 Man Crew Tuesday Ryan E Park $5,099.65 5 Man Crew Wednesday Vanderlip Park $1,442.66 5 Man Crew Wednesday Eastview Park $3,623.44 5 Man Crew Thursday Ladera Linda Park $2,180.77 5 Man Crew Thursday Point Vincente Interpretive $2,918.88 5 Man Crew Friday Center Entradero $2,147.22 5 Man Crew Friday Clovercliff Park $738.11 5 Man Crew Friday Total Monthll: Sub-Budget $30,396.60 Total Yearlv Sub-Budget $364,759.20 01203.0006/627835.1 B-43
C. On-Call Services shall be billed at the rates described in Exhibit "C-1" and Exhibit "C-2". The total cost of on-call services shall not exceed $24,000 each calendar month, and $240,000 annually. D. Brush Clearance Services will be provided at the following rates : Item No. Description Cost Per Hour 1. Category 1 Brush Clearance $1195.00 2. Category 2 Brush Clearance $1995.00 3. Category 3 Brush Clearance $2895.00 4. Category 4 Brush Clearance $4195.00 TOTAL YEARLY SUB-BUDGET $99,715.00 II. Retention: A retention of ten percent (10%) shall be held from each payment as a contract retention to be paid as part of the final payment upon satisfactory completion of senrices. NOT APPLICABLE. III. Within the budgeted amounts for each Task, and with the approval of City's 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 Senrices are approved per Section 1.10. IV. City will compensate Contractor for the Senrices 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 prorated monthly based on total annual cost (annual cost/ 12 =monthly rate). 01203.0006/627835.1 C-3 B-44
C. Line items for all materials shall be prorated monthly based on total annual cost (annual cost I 12 :a: 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 authorization(s) from Contracting Officer, or his designee. V. The total compensation for the Services shall not exceed the Contract Sum as provided in Section 2.1 of this Agreement. 01203 0006/627835.1 C-4 B-45
EXHJBJT "C-1" CONTRACTOR PROVIDED MATERIALS Item Estimated No. Nomenclature Name Specification Units Unit Cost yearly units yearly costs 810 CATEGORY 3 ·CONTRACTOR PROVIDED MATERIALS XX XX XX XX 1 Sand Playground Washed p'aster sand free of rocks Torl5 annually $ 85.00 0 $ . Engineered Wood FLber med,a, which meets ADA, ASTM. CPSC and 75 s 6,000.00 z Wood Fiber Med"a P~ayground C5A standards Yards annually s 80.00 3 Decomposed Granite Trails/landscaping Trail and landscape replenishment Yards annually s 85.00 100 s 8.50000 Bo ts. nuts. screws, naUs. banding & clamps, zip ties. flush valves, washers. gaskets. sealant. solvents, lubricants, adheslves. abrasives, 12 s 7,200.00 4 Common Mate~a's Hardware, consumables blades, and rags. Lump sum s 600.00 Wtndows bast!d, Required for communication with Coty stall and 8 $ 96000 s Communlcationdevkes Smart phone/ tablet CltyWorks. 8 each s 120.00 2000 EZ Tie handled dog waste clean up bags. Bulk packed • 20 packages of 100, bulk packed bags-20 blocks of 100 bags, or 300 s 36,000.00 6 Bass Dog Waste equiva'ent Case of2000 $ 120.00 , 7 Bags Waste Bin loners 39" x 58'' 1.5 Mil Eco Friendly trash liners Case of 100 s 43.00 300 s 12.90000 SUBTOTAl s 71,560.00 8 Mulch Planters Double ground hardwood mulch Yards ;annually s 26.00 0 $ 9 Round up per ganon chemical Common chemical used to control weed pressure pllon s 84.75 0 s . 10 Cheetah chemical Common chemical used to control weed pressure carr on s 127.20 40 s 5,088.00 11 Speedzone green per quart chemical Common chemical used to control weed pressure quart s 38.25 60 s 2,295.00 12 Fus clade per quart chemical Common chemical used to control weed pressure quart s 154.50 25 s 3,862.50 13 Freehand per SOib chemical Common chemical used to control weed pressure SO!b ba& s 162.25 so s 8.112 so 14 PGR per &allon chemical Common chemical used to control plant &rowth &a lion s 273.25 40 s 10,930.00 15 Fertilizer per SO lb [common) fertilizer Common chemical used to promote growth SOib baa $ 42.75 so s 2,137.50 16 Fertilizer 37·0·5 w/ dimension fertilizer Common chemical used to promote growth 501bbag s 89.70 100 s 8,970.00 17 1" fitting common sch 40 irriaation Common irrlsation part fitting s 0.75 250 $ 187.50 18 1.5" flttln& common sch 40 Irrigation Common Irrigation part fitting s 1.50 250 $ 375.00 19 2" fitting common sch 40 Irrigation Common irrl&ation part fitting $ 2.25 250 s 562.50 20 2.5" fitting common sch 40 irrigation Common irrigation part fitting s 6.85 250 s 1,712.50 2l 1.5" valve brass irrigation Common lrrilatlon part valve s 175.00 3 s 525.00 n 2" valve brass Irrigation Common irrigation part valve s 220.00 3 s 660.00 23 Irrigation pipe ·1" sch 40 lrrisation Common irrigation part 100' s 62.62 15 s 939.30 24 Irrigation pipe ·1.5' sch 40 irrigation Common Irrigation part 100' s 104.55 15 s 1,568.25 zs Irrigation pipe· 2' sch 40 irrigation Common irrigation part 100' $ 131.70 15 s 1,975.50 26 Irrigation pipe· 2.5' sch 40 Irrigation Common lrrl&atlon part 100' $ 225.72 15 $ 3,385.80 27 1 gal common plant plant material Common plant material container s 9.00 200 s 1,800.00 28 S gal common plant plant material Common plant material container s 24.00 200 s 4,800.00 29 15 cal common plant plant material Common plant material container $ 75.00 10 s 750.00 30 24" box common tree w/stakes plant material Common plant materiil container $ 195.00 3 s 585.00 ll bag of amend plant material Common plant material bag s 12.80 50 s 640.00 32 fumltoxin chemical Chemical used to control sopher activity bottle s 75.00 12 s 900.00 33 rozol chemical Chemical used to control gopher activity container s 235.00 10 s 2,350.00 34 s . 35 $ . :16 s . s . SUBTOTAl $ 65,111.15 SUB TOTAL CATEGORY 3 ·CONTRACTOR PROVIOED MATERIALS TOTAl $ 136,671.85 01203.0006/627835. I C-5 B-46
LABOR RATES Labor Employee New Wage Rate New OT Wage Rates 1 Service Request Technician $ 29.50 $ 44.25 2 Lead landscaper $ 42.50 $ 63.75 2 lead landscaper $ 42.50 $ 63.75 3 Senior landscaper $ 38.50 $ 57.75 4 Irrigation Technician $ 44.00 $ 66.00 Sa landscape laborer $ 29.50 $ 44.25 5b landscape Laborer $ 29.50 $ 44.25 5c Landscape Laborer $ 29.50 $ 44.25 Sd landscape Laborer $ 29.50 $ 44.25 Se Landscape laborer $ 29.50 $ 44.25 6 lead Maintenance Worker $ 38.50 $ 57.75 7 Senior Maintenance Worker $ 32.50 $ 48.75 8a Maintenance laborer $ 29.50 $ 44.25 8b Maintenance Laborer $ 29.50 $ 44.25 Be Maintenance laborer $ 29.50 $ 44.25 9a Litter laborer $ 28.50 $ 42.75 9b Litter Laborer $ 28.50 $ 42.75 9c Litter Laborer $ 28.50 $ 42.75 10 Pest Control Technician $ 65.00 $ 97.50 01203.0006/627835 I C-6 B-47
EXHIBIT "D" SCHEDULE OF PERFORMANCE I. 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. II. Contractor shall deliver status reports in accordance with Exhibit A, sections II and III of this Agreement, as scheduled in the Performance Work Statement. III. The Contract Officer may approve extensions for performance of the Services in accordance with Section 3.2. 01103 0006/627835 I 0-J B-48
01203 0006/627835.1 EXHIBIT E LEASE AGREEMENT [SEE FOLLOWING PAGE] B-49
RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, California 9027 Attention: City Clerk [SPACE ABOVE FOR RECORDER'S USE ONLY] Exempt from filing/recording fees per Govt. Code §27383 AMENDED AND REVISED LEASE AGREEMENT This Amended and Revised Lease Agreement ("Lease") is made and entered into _, 2020 ("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 E-1 ("Property"). B. Tenant and Landlord have executed that certain Contract Services Agreement dated February 1, 2017 in conjunction with that certain Lease Agreement 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. Tenant and Landlord agreed to extend the Term of the Contract Services Agreement through the Amended and Revised Agreement, and wish to extend the Term of the Lease Agreement this this Amended and Revised Lease Agreement. NOW, THEREFORE, the parties agree as follows: 1. 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 01203.0006/62783$ J E-2 B-50
convenience only and designate some of the sections where references to the particular fundamental lease provisions may appear. 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 E-2 ("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 one (1) year ("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 $80,265.00 (Eighty Thousand Two Hundred and Sixty Five Dollars and Zero Cents) per annum payable in equal monthly installments of $6,688.75 (Six Thousand Six Hundred and Eighty Eight Dollars and Seventy Five Cents) ("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. TERM. 2.1 Term. ol2oJooo61627835.1 E-3 B-51
(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 two (2) 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 (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) month 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 (121h) 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. RENT. 3.1 Base Rent. n 12oJ.ooo6t627835.1 E·4 B-52
(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 (15t) 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. (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. LEASED PREMISES; UTILITIES; USE. OI20J.ooo616271135.1 E-5 B-53
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 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. 01203.0006/627835 I E-6 B-54
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 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 seq.; 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. 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 01203 0006/627835 I E-7 B-55
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 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. 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. 01203 0006/627835.1 E-8 B-56
(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 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 Ten ant 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. 01203,0006/6271135.1 E-9 B-57
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 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. 7. ABANDONMENT AND SURRENDER. 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. 01203.00061627835.1 E-10 B-58
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 subtenancies, or may, at the option of Landlord, operate as an assignment to it of any or all of such subleases or subtenancies. 8. 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. 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. 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 Ten ant, 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. 01203.0006/627835 I E-1 J B-59
(d) Vacation or abandonment of the Leased Premises for a period of thirty (30) consecutive days by Ten ant. (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 0006/627835 I E-12 B-60
(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. 0 J 203 OOOM627835.J E-13 B-61
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. 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. Ten ant 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. 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) 0 1203.0006/62 7835.1 E-14 B-62
month period Landlord or his agents may, during normal operating hours, enter upon said Leased Premises and exhibit same to prospective tenants. 12.2 Estoooel 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 0 1203.0006f6271!35.1 E-15 B-63
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 (1 0) 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 0006/627835.1 E-16 B-64
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 "E-1" & "E-2" 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. TENANT: STAY GREEN, INC, :::::~ora~. By·~ .ItS:= 01:!03 0006/627835.1 E-17 LANDLORD: RANCHO PALOS VERDES, a municipal corporation By: -------------------John Cruikshank, Mayor AITEST Emily Colborn, City Clerk APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP By: __________________ _ William W. Wynder, City Attorney B-65
EXHIBIT E-1 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: THAT PORT!ON OF BLOCJt K, AS SHOWN 0:1 ~~"i' ?F THE RANCHO LOS PALOS VERDES, lH THE COUNT~ OF LOS ~CELES, ST~~E OF CALIFORNIA, ALLOTTED TO JOTHAH BIXBY, BY DECREE IN PMTITlOl( :rH TH£ ACTION "UIXDY, ET ).L. VS. VEN, ET AL.~, CASE NO. 2373, IH T~~ OISTRICT COURT OF THE 17TH .JUOICI~ DIST.R!CT OF TH£ STllTE OF CAi.IFORNill, IH lUID FOR Til£ COUNTY OF LOS ~CF.LES AND ENTERED IN SOOX 4 PACE 57 Of JUDGMENTS, IN THE SUPERIOR COURT OF SAID COUNTY, DESCRIDED AS FOLLOWS% COHMENCING AT A POINT, SAID POINT BEING THE COUNTY OF LCS ANGELES, TRIANGULATION KONUHENT S~~ PEDRO HILLS D-7, AND HAVING STATE COORDINATES OF tfO~Tft 4,019,330.05, EI.S'T 4, 16.:,224.94, SAID POINT !l&ING LOCATED OM A POINT OF LAND NORTH OF PM-OS VERDES DRIVE, OVERLOOkiNG POINT VICENTE LIGHTHOUSE; THENCE NORTH 53 DEGREES 31 MINUTES 58 SECONDS EAST 415.07 FEET TO THE CENTER OF THE NORTHWEST CUt' TUMET OF BATTERY 2401 THENCE ttORTH 51 DECREES 59 HI NOTES 13 SECONDS EAST 55.00 FEETI THENCE NORTH 3a DECR.£ES CO HINUTES 47 SECONDS WEST 56.15 FEET TO THE TRUE POINT OF BEGINNING; THENC£ NORTH 36 DECREES 00 HIHUTES 43 SECONDS EAST 19.31 FEET TO THE 8EGINNINC OF A T.At•CEtlT CURVE CONCAVE ~OtnHEJU.Y, WWING A RADIUS OF lOS.OO FEET1 THENCE EASTERL'i J\LONG SAID CURVE TRROUCH A CENTRAL 1\NCLE: OF 60 DEGREES 58 MINUTES 07 SECONDS, A DISTANCE OF 111.73 FEET; THENCE SOUTH 83 DECREES 01 MINUTES 10 SECONDS EAST 69.J8 FEET; THENCE SOUTH 86 DECREES 20 Klh~TES 4B SECONDS EAST 212.34 FEETJ THENCE NORTH 01 DECREES 46 MINUTES 52 SECONDS WEST 109.94 FEET; THENCE NORTH 81 DECREES 44 HINUTES 11 SECOtmS EAST 278. SJ FEET; 'lHEUCE SOUTH 88 DECREES SO MINUTES 35 SECONDS EAST 60.40 FEET; THENCE SOUTH 71 DECREES 55 HIIIUTES 48 SECONDS E'I\ST 57. fi3 FEET; TIIENCE SOU'l'll E2 tl£CR£ES 00 MINUTES 18 SECONDS .EAST 226.14 FEET; THENCE NORTH 62 DECREES 19 MINUTES 00 :'iECONDS ·EAST 84.1:: FEET TO A POINT IH THE SOUTH RlCHT-OF-WA'i LINE OF HAWTHORNE BOULEV~, SAID POINT BEINC A TAf{CEtfT CURVE CONCAVE tlORTIIEI\STEJU.t HAVING }\ AADIUS OF 550.00 FEET J THENCE SOUTHEASTERLY ALONG SAID CURVE, THROUGH I. CENTML ANCLE OF 02 DECREES 18 HINUTES 26 SECONDS, A DISTANCE OF 22.15 FEET; THENCE SOUTH 62 DECREES 19 MINUTES 00 SECONDS WEST 79.981 THENCS SOUTlt 84 DEGREES 31 M!llVTES 12 SECONDS HEST 216.25 F£&1'; THENCE .rfORTH 02 DECREES 24 HlNUTES 09 SECONDS WEST SS .04 FEET; THENCE NORTH 87 DECREES~l4 HIHUTES 50 SECONDS WEST 231.~6 FEET; ~HENCE SOUTH 02 DECREES 23 MINUTES 42 SECONDS EAST 7S.C6 FEET~ TH£t~CE NORTH 83 DECRF.£S 00 MINUTES 49 SECOf':DS WEST 166. •17 FEP.Tz THEN~~ :fORTH 86 DECREES 20 MtNU't'ES 48 SECONDS WEST 212 • .:'JS FEET; THENCE NORTH 83 DECREES 01 HlNUTES 10 SECONDS WEST 69.96 FEET TO A POINT BEINC A TANGENT CURVE CONCAVE SOUTUEPLY, HI.VlNC A RADIUS OF 85.00 FEET; THENCE WESTERLY ALOr~a SAID CURVE • THROUGH A CENTRAL AHCLE OF 60 DEGREES 58 MINUTES 07 ~ECONDS, I. DISTANCE OF 90.54 FEET1 THENCE SOUTH 36 DECREES 00 MINUTES 43 SECOfiDS wt:ST 25.04 FEET: THF.NC£ MOI\TH 38 DEGREES 00 HINtiTES 47 SECONDS WEST 20.t10 FEET TO TH& TRUE POINT OF BEGINNING. 01203.0006/627835.1 E-18 B-66
01203.0006/627835.1 EXHIBIT E-2 LEASED PREMISES E-19 B-67
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 ) COUNTYOF b ~l.o.':> ~ ss. On Vl... , a notary public, personally a eared \UW\ who proved to me on the basis of satisfactory evidenc to be the f!~rson whose name(~@are subscribed to the within instrument and acknowledg~ to me that&/she/they executed the same in@her/their authorized capacity(~, and that by ~her/their signature~on the instrument the personW or the entity upon behalf of which the person(-Bf'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. WITNESS my hand and official seal. »v~ SEAL: 0 1203 0006/62 7835 I E-20 B-68
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 Lo.s lh5.QJ~ c; ) ) ) ss. On ct t · 'l-.-, 2020 before me, {\1, ~dJt Le.-v\ct... lJ~ &.. , a notary public, personally ap eared Cbvts\ophfi lto5..D..lo . .. who proved to me on the basis of satisfactory evidence to be the person(~whose name~are subscribed to the within instrument and acknowledged to me tha~she/they executed the same in@her/their authorized capacity~, and that by~her/their signatureW-on the instrument the person~) or the entity upon behalf of which the personfsr acted, executed the instrument. I certify under PENALTY OF PERJURY under the Jaws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. SEAL: 01203.0006/627835.1 z z ~ B-69
Labor Employee New Wage Rate New OT Wage Rates
1 Service Request Technician 29.50$ 44.25$
2 Lead Landscaper 42.50$ 63.75$
2 Lead Landscaper 42.50$ 63.75$
3 Senior landscaper 38.50$ 57.75$
4 Irrigation Technician 44.00$ 66.00$
5a Landscape Laborer 29.50$ 44.25$
5b Landscape Laborer 29.50$ 44.25$
5c Landscape Laborer 29.50$ 44.25$
5d Landscape Laborer 29.50$ 44.25$
5e Landscape Laborer 29.50$ 44.25$
6 Lead Maintenance Worker 38.50$ 57.75$
7 Senior Maintenance Worker 32.50$ 48.75$
8a Maintenance Laborer 29.50$ 44.25$
8b Maintenance Laborer 29.50$ 44.25$
8c Maintenance Laborer 29.50$ 44.25$
9a Litter Laborer 28.50$ 42.75$
9b Litter Laborer 28.50$ 42.75$
9c Litter Laborer 28.50$ 42.75$
10 Pest Control Technician 65.00$ 97.50$
B-70
ITEM
NO.Nomenclature Name
1 Utility trailer Landscape trailer
2 Mower Zero turn radius, riding
3 Tractor Compact Utility
4 Box Blade Gannon
5 Mower Rotary cutter
6 Brush Chipper Trailer mounted
7 Chain saw Large
8 Chain saw Medium
9 Personal Protective Clothing Chaps
10 Personal Protective Clothing Head, face, hearing protection
11 Pole Pruner Gas powered
12 Trimmer Gas powered
13 Blower Electic Powered
14 Hedge Trimmer Gas powered
15 Shovel Digging
16 Shovel Trench
17 Shovel Scoop
18 Shovel Transfer
19 Fork Manure
20 Rake Bow rake
21 Rake Leaf
22 Rake Cultivator
23 Mattock
24 Axe Single bit
25 Hammer Sledge
26 Post Hole Digger
27 Hoe
28 Lopper Bypass
29 Broom Push
30 Tools other
31 Wheelbarrow
32 Dump Truck 5-6 Yard
33 Truck Stake bed
34 Truck Utility bed
37 Trailer Equipment transport
38 Tool Kit General Mechanic
39 Tool Kit Coordless Power Tool Kit
42 Personal Protective Clothing Helmet, gloves, leathers
BID CATEGORY 2 - VEHICLES AND EQUIPMENT
B-71
63 Wrench set Combination
64 Wrench Pipe
65 Wrench Pipe
69 Jack Hammer Electric
72 Digger Post hole
74 Tools General Carpentry
78 Pressure Washer Gas powered, Cold Water
B-72
CITY COUNCIL MEETING DATE: 02/04/2020
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration and possible action to receive and file a presentation on an updated Fuel
Modification Plan and other wildfire preparedness efforts, and award a contract
amendment to Fire Grazers, Inc. for fuel modification services
RECOMMENDED COUNCIL ACTION:
(1) Receive and file a presentation on an updated Fuel Modification Plan and other
wildfire preparedness efforts;
(2) Authorize a contract amendment to Fire Grazers, Inc. to expand contracted fuel
modification services; and,
(3) Authorize an additional appropriation of $43,815 for expanded fuel modification
related services.
FISCAL IMPACT: $43,815
Amount Budgeted: $1,291,700
Additional Appropriation: $43,815
Account Number(s): 101-400-3230-5101
(General Fund - Fuel Modification, Professional & Technical Services)
ORIGINATED BY: James S. O’Neill, Project Manager (Public Works)
REVIEWED BY: Elias Sassoon, PE, Director of Public Works
APPROVED BY: Ara Mihranian, AICP, Interim City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Amendment to Contract FY2020-020 with Fire Grazers, Inc. (page A-1)
(forthcoming)
B. June 18, 2019 Staff report and attachments (link)
C. July 16, 2019 Staff report and attachments (link)
D. September 3, 2019 Staff report and attachments (link)
E. September 17, 2019 Staff report and attachments (link)
F. November 19, 2019 Staff report and attachments (link)
G. Updated Fuel Modification Map (page G-1)
H. Updated Fuel Modification Table (page H-1) (forthcoming)
I. Updated Fuel Modification Schedule for 2020 (page I-1) (forthcoming)
C-1
EXECUTIVE SUMMARY:
Staff has completed updating mapping of all areas of City property that are within 200
feet of structures (the “defensible space” required in Los Angeles County for Very High
Fire Hazard Severity Zones, which includes most of Rancho Palos Verdes), and has
identified 94 fuel modification areas (equating to 278.73 acres). Prior to this update, City
fuel modification maps specified 42 fuel modification areas (equating to 65.35 acres). As
part of this report, Staff is presenting the revised map, table, and schedule of work for
2020 that reflects the work required.
Because of the additional acreage, Staff is recommending an amendment to the Fire
Grazers, Inc. contract for goat grazing. Staff will return at a later date for an amendment
to the Stay Green contract for the adding the costs of addressing that additional areas
that cannot be addressed by Fire Grazers, Inc.
Staff estimates that $1.2 million is needed on an annual basis for fuel modification work,
including costs for biological and bird surveys, goat grazing, tree trimming and other
weed and brush clearance. This annual expenditure could potentially be reduced in
future years if the City invested in well thought out re-vegetation of some fuel
modification areas, and Staff is in discussions with the Palos Verdes Peninsula Land
Conservancy (PVPLC) to explore this option. Staff also estimates that an additional $1
million would be needed to complete efforts to eradicate acacia from the Peninsula.
BACKGROUND AND DISCUSSION:
The Los Angeles County Fire Code requires the clearance of hazardous vegetation
around structures to create “defensible space” in Fire Hazard Severity Zones and High
Fire Hazard Severity Zones for effective fire protection of property, life and the
environment. Fuel modification reduces the radiant and convective heat, and provides
valuable defensible space for firefighters to make an effective stand against an
approaching fire front. The Los Angeles County Fire Department (LACoFD) and
Department of Agricultural Commissioner/Weights and Measures, Weed Hazard and
Pest Abatement Bureau (Weed Abatement Division) jointly enforce these requirements.
Defensible space is defined as 100 feet from structures in Fire Hazard Severity Zones
and 200 feet from structures in Very High Fire Hazard Severity Zones. These spaces
are further subdivided into two zones, the first extending 30 feet out from structures, and
the second extending the remaining 70 feet (or 170 feet in Very High Fire Hazard
Severity Zones), as shown in the diagram below:
C-2
Rancho Palos Verdes is primarily designated a Very High Fire Hazard Severity Zone,
and according to an April 11, 2019, article in the Sacramento Bee, “holds a dubious
honor: it’s the most populated city in California to have 90 percent or more of its
population living within a very high fire hazard severity zone.” As such, defensible space
in the City is defined as 200 feet from structures.
Of the 8,620 acres that are within the City of Rancho Palos Verdes’ boundaries, the vast
majority of that acreage is privately owned. The City owns and is responsible for fuel
modification on approximately 1,604 acres within its boundaries; of that acreage,
1,381.7 acres is located within the Palos Verdes Nature Preserve (Preserve). The
Preserve is 1,402.4 acres, with Lunada Canyon (in the Agua Amarga Reserve) owned
by PVPLC, which is responsible for the fuel modification areas associated with those
20.7 acres.
Fuel modification on both private and public land in the City is subject to the California
Environmental Quality Act (CEQA), which requires measures be taken to protect
environmental resources as appropriate. (Homeowners are exempt, however, from
CEQA requirements for the first 100 feet.) This typically involves tracking habitat loss
and protection of federally and state listed endangered and/or other sensitive species.
In November 2019, the City Council adopted the City’s Natural Communities
Conservation Plan/Habitat Conservation Plan (NCCP/HCP), which helps the City to
streamline the permitting of several City projects, including fuel modification. The
NCCP/HCP specifically states in Section 6.3.1 that, "At no time will NCCP/HCP
provisions take precedence over the requirements of public health, safety, and welfare
as determined by the Los Angeles County Fire Department.” It also states that removal
of coastal sage scrub or any other form of habitat modification or weed abatement for
the purpose of fire protection, such as the establishment of fuel modification zones and
fire breaks, thinning or brush clearing, provided such actions follow a regulation,
requires a written plan or a written order that is issued or required by the Los Angeles
County Fire Department or by another governmental entity. The NCCP/HCP allows the
City 30 acres of habitat loss within the Preserve resulting from fuel modification. The
City has an additional 40 acres of habitat loss available within the NCCP/HCP’s “Other
Miscellaneous City projects” category. Staff feels this is 70-acre allotment will meet and
expedite the City’s fuel modification needs.
C-3
The City works with PVPLC and the California Department of Fish and Wildlife and U.S.
Fish and Wildlife Service to track “take” associated with fuel modification to comply with
NCCP/HCP and CEQA requirements. Moreover, the NCCP/HCP states that, “fire and
fuel modification will be carried out with a priority for human safety, where practicable,
the City and PVPLC shall also consider the minimization of impacts to biological
resources, where appropriate.” In order to comply with the City’s NCCP/HCP
requirements, the City works with its habitat manager (PVPLC) and the wildlife agencies
to coordinate fuel modification and track habitat loss.
The City’s Fuel Modification Plan
The LACoFD website lists five methods the department uses to manage over-aged
chaparral stands:
Prescribed fire (a.k.a. “controlled burns”)
Mechanical brush removal – defined as using mechanical equipment, such as
bulldozers, “brush crushers,” brush rakes, disks or anchor chains
Chemical application – application of growth inhibitors, defoliators or killers
Biological control – using grazing or browsing animals, such as goats
Hand clearing – manual labor using tools such as chain saws and line trimmers
The City’s Fuel Modification Plan does not utilize all of the methods used by LACoF D.
Prescribed fire presents obvious community concerns, mechanical brush removal is
avoided, if possible, and the use of chemical application would be a violation of the
NCCP/HCP in the Preserve. This leaves biological control and hand clearing as the
primary methods used by the City.
The City’s plan is intended to guide the City and its contracted vendors on fuel
modification efforts on a regular basis. The plan presented to the City Council on July
16, 2019 (Attachment C) was comprised of a map and a corresponding table that
identified the 42 fuel modification areas (drawn originally in 2004), the anticipated
approach and schedule for each area. At that time, Staff also stated that additional fuel
modification areas still needed to be mapped.
Current and Future Fuel Modification Budget
The FY19-20 Adopted Budget originally included $310,000 for Fuel Modification
services, and was comprised of:
$140,000 for Fire Grazers, Inc. (the vendor that provides the goats);
$100,000 for other vendors (i.e. Los Angeles Conservation Corps and Long
Beach Conservation Corps); and
$70,000 for disking services performed by the County of Los Angeles.
Subsequent to the adoption of the FY19-20 budget, the City Council has approved
additional appropriations for fuel modification, as listed in the following table:
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Original
Appropriation
$310,000
July 16, 2019 Biologist studies and reports $50,000
September 3, 2019 Grant to PVPLC for Acacia removal $200,000
September 17, 2019 Supplement for Fire Grazers contract $10,000
Tree trimming, “up-limbing” and tree
removal (Acacia removal) $200,000
Geological studies and reports $25,000
Consultant services to oversee and
manage the City’s fuel modification efforts
and associated contracts
$125,000
November 19, 2019 Grant to PVPLC for more Acacia removal $307,200
$1,227,200*
*$707,200 was allotted for Acacia removal outside the fuel modification zones
Currently $520,000 has been allocated for fuel modification this year. However, Staff
estimates that approximately $1,200,000 (rounded-up) would be needed annually to
address all identified fuel modification areas. Although many factors may affect this
figure (such as rainfall, site-specific approaches to account for native vegetation, and
potential re-growth in an area during a single year), this cost estimate is based on the
following assumptions:
279 acres of fuel modification areas
An approximated cost of $3,000 per acre for fuel modification (based on average
per-acre costs of Fire Grazer’s contract, Stay Green’s contract, and accounting
for costs for bird surveys) equating to $837,000
A 25% contingency, equating to $209,250
$125,000 for oversight and management
This estimated budget does not include re-vegetation, which would minimize or
potentially eliminate or significantly reduce the need for annual clearing, thinning or
trimming in fuel modification areas. It also does not include a (theoretically, one-time)
cost for removing remaining Acacia from City properties, both inside and outside of the
Preserve.
Staff will also be exploring grant funding as a means to supplement and levera ge the
City’s fuel modification budget. The Governor’s proposed FY20-21 budget includes
programs that could provide funding for programs related to fuel modification, including:
$110.1 million to implement AB 38 (Wood, Chapter 391, Statutes of 2019), which
directs Cal OES and CAL FIRE to develop a joint powers authority to administer
a $100 million home hardening pilot program. AB 38 also mandates real estate
disclosure requirements for properties located in Very High Fire Hazard Severity
Zones starting on January 1, 2021.
$50 million to Cal OES to support additional preparedness measures that bolster
community resiliency, particularly during utility-initiated power shutdown events.
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This proposal would support a matching grant program to help local governme nts
prepare for, respond to, and mitigate the impacts of power outages.
Update to the Fuel Modification Map
Staff updated the Fuel Modification Map by digitally tracing all structures within 200 feet
of City properties, and mapping 200-foot buffers around those structures (Attachment
G). The original 42 fuel modification areas equated to 65.35 acres. With GIS mapping
completed, there are now 96 areas that equate to 278.73 acres. Some of the 94 areas
are encompass some of the original, smaller areas, and others are new areas that were
not previously mapped.
Not all mapped areas will require “brush clearance,” as they include maintained
landscaped areas (such as Hesse Park and Ryan Park) or paved areas (like some
portions of the Civic Center complex). Many areas are not abundant in habitat, and/or
may include disturbed vegetation or non-native plants. Other areas may not be able to
be cleared, trimmed or thinned due to steep slopes and/or the impracticality of placing
fences for the goats. These areas will be discussed with LACoFD and Department of
Agricultural Commissioner/Weights and Measures to discuss what is ultimately
required.
Malaga Canyon, which equates to approximately 68 acres, is intentionally not included
in the plan at this time, because the fuel modification areas equate to more than half
(approximately 38 acres) of the Reserve. Staff expects to have meetings with PVPLC,
LACoFD and Department of Agricultural Commissioner/Weights and Measures to
address what will ultimately be required in this Reserve.
Addressing Utility Hazards
Staff has engaged Southern California Edison (SCE) representatives to address the
potential of undergrounding overhead power lines that may pose a fire threat. This
includes clearing vegetation and dry brush under existing power lines, particularly an
existing power line in the Portuguese Bend Reserve. The City has also spearheaded an
effort to change state regulations that would allow for the threat of fire to be a
justification for use of existing funds (Rule 20) set aside for undergrounding.
The City’s proposed policy on Rule 20 was recommended by both League policy
committees last week and is going to the Board of Directors in February for
consideration as a formal policy. The proposed policy now reads simply, “The League
supports the inclusion of wildfire mitigation as an eligible project to receive the California
Public Utilities’ Rule 20 funds and efforts to expand funding for Rule 20.” League staff
crafted this language to reflect two main elements agreed upon by the policy
committees and the City: adding wildfire mitigation as an eligible project to receive Rule
20 funds; and expanding funding for Rule 20 projects to support those wildfire mitigation
efforts. The Board of Directors will meet February 20-21 in Yountville.
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SCE and other electrical utilities have recently implemented policies to allow to allow
public safety power shutoffs (PSPS) in order to prevent their equipment from sparking
wildfires. Communities are looking for ways to offset the likely negative impacts of such
actions, and Staff is researching the potential impacts and potential ways for the City to
minimize such impacts to residents and the community. Staff applied for a grant from
the Governor’s Office for generators and education opportunities under a program to
address those concerns, and is awaiting a response to that application.
Educating Property Owners and Residents
Educating property owners and residents is an important aspect of the City’s plan. Staff
intends to develop educational materials, research education opportunities, or update
the City’s website with educational materials. The City has also recently retained
contract staff who can focus on these public outreach efforts.
Contract Amendment with Fire Grazers and Stay Green
As outlined in the Fuel Modification Plan presented on July 1 6, 2019, Fire Grazers and
Stay Green are scheduled to address the 42 original fuel modification areas. Staff is
presenting an updated map and corresponding table and schedule that reflects the
detailed mapping of all City properties by City GIS Staff. GIS Staff digitally traced every
structure that was within 200 feet of any City property (whether inside the Preserve or
not) and created the 30-foot and 200-foot buffers that equate to Zone 1 and Zone 2
around structures from the LACoFD fuel modification standards. This resulted in the
identification of 94 fuel modification zones, a number that is not expected to change
without new homes or structures being built.
With the increased fuel modification zones, the contracts with Fire Grazers and Stay
Green must be amended to reflect the new acreage. A t this time, Staff proposes
amending the Fire Grazers (Attachment A). An additional appropriation of $43,815 is
needed at this time. Staff will present an amendment to the Stay Green contract at a
later date, since a contract amendment to the Stay Green contract is being considered
separately on tonight’s agenda.
ALTERNATIVES:
In addition to the Staff recommendations, the following alternative actions are available
for the City Council’s consideration:
1. Discuss and take other action related to this item.
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27
25
19B
28A
28C
12
52
17
19A
73
21
7
14
16
38
78
59 60
15
28B
11
61
70
20
67
56
13
66
8 32
18
779
55
35
10
33
58
64
6
68
54
62
63
65
34
7224
53
36
37
57
39
22
71
23
26
69
PALOS VERDES ESTATES
ROLLING HILLS ESTATES
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51 44
7 1
29
91
81
31
75
82 86
79
4
5
95
49
74
92
84
83
94
40
89
42 85
76 3
45
88
50
43
93
30
96
41
4647
87
80
2
90
48
PV Reservoir
LOS ANGELES
ROLLING HILLS
ROLLING HILLS ESTATES
LOMITA
TORRANCE
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