HomeMy WebLinkAboutOrdinance 2516 N.C.S. 12/01/2014EFFECTIVE DATE ORDINANCE NO. 2516 N.C.S.
OF ORDINANCE
January 1, 2015
1 Introduced by Seconded by
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4 Teresa Barrett Gabe Kearney
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9 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING
10 A LEASE AGREEMENT, BETWEEN COMMITTEE ON THE SHELTERLESS, A CALIFORNIA
11 NONPROFIT PUBLIC BENEFIT CORPORATION ("TENANT") AND THE CITY OF PETALUMA
12 ("LANDLORD") FOR A PORTION OF IMPROVED REAL PROPERTY(APN 019-210-012)
13 ("PREMISES"), 1500 BOULEVARD SOUTH PETALUMA, PETALUMA, CALIFORNIA,
14 AND AUTHORIZING THE CITY MANAGER TO EXECUTE ALL DOCUMENTS
15 NECESSARY TO COMPLETE THE LEASE TRANSACTION
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18 WHEREAS, Section 46 of the Charter of the City of Petaluma requires that specified
19 actions for the acquisition, sale, or lease of real property be taken by Ordinance; and,
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21 WHEREAS, Landlord owns in fee simple real property located at 1500 Boulevard South
22 Petaluma, Petaluma, CA (Assessor's Parcel Number: 019-210-012), which has been improved
23 with a building ("Property"): and
24 WHEREAS, Landlord currently rents half of the Property to Petaluma People Services for
25 performance of homeless prevention services, tenant landlord mediation and fair housing
26 programs, but the other half of the Property, approximately 5,000 (five thousand) square feet,
27 vacant; and
28 WHEREAS, currently, Tenant provides essential social and human services to the homeless
29 community in Petaluma at the Mary Isaak Center, but due to restrictions at the Mary Isaak
30 Center, is not able to offer emergency shelter to homeless families; and
31 WHEREAS, Tenant desires to offer emergency shelter to homeless families, and the
32 Landlord desires to provide a location at which the Tenant may offer such services, subject to
33 the terms and conditions of the lease attached to and made a part of this ordinance as Exhibit
34 A; and
35 WHEREAS, the City Council finds this action qualifies for categorical exemption under the
36 California Environmental Quality Act (CEQA) pursuant to Title 14, Chapter 3 of the California
37 Code of Regulations (CEQA Guidelines), sections 15061, 15301 because the project involves
38 operation, repair, maintenance, permitting, leasing, licensing and minor alteration of an existing
39 facility involving negligible or no expansion of use beyond that existing at the time of the City's
40 determination, in that leasing to COTS about half or 5,000 square feet of the City owned
41 property at 1500 Petaluma Boulevard South provision of emergency shelter services pursuant to
Ordinance No. 2516 N.C.S. Page 1
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the lease will not result in significant expansion of use of the property in terms of impacts on the
property and the neighborhood beyond the current impacts of the PPSC services being offered
on site.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS
FOLLOWS:
Section 1: The above recitals are true and correct and incorporated into this
ordinance as findings of the City Council.
Section 2: The City Council approves the lease, between the City of Petaluma as
Landlord, and COTS, as Tenant, a copy of which is attached as Exhibit A.
Section 3: On behalf of the City, the City Manager is authorized and directed to
execute documents substantially in accordance with Exhibit A, as determined by the City
Attorney, and all other documents reasonably necessary to complete the lease transaction.
Section 4: If any section, subsection, sentence, clause, phrase or work of this
Ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court
of competent jurisdiction or preempted by State legislation, such decision or legislation shall not
affect the validity of the remaining portions of this Ordinance. The City Council of the City of
Petaluma hereby declares that it would have passed and adopted this Ordinance and each
and all provisions thereof irrespective of the fact that any one or more of said provisions be
declared unconstitutional, unlawful other otherwise invalid.
Section 5: This Ordinance shall become effective thirty (30) days after the date of its
adoption by the Petaluma City Council.
Section 6: The City Clerk is hereby directed to publish or post this Ordinance or a
synopsis for the period and in the manner provided by the City Charter and any other
applicable law.
INTRODUCED and ordered posted this 17th day of November 2014.
ADOPTED this 151 day of December, 2014 by the following vote:
Ayes: Barrett, Mayor Glass, Harris, Healy, Vice Mayor Kearney, Miller
Noes: None
Abstain: None
Absent: Albertson
avid Glass, Mayor
ATTEST:
Claire Cooper, CMC, City Clerk
APPROVED AS TO FORM:
J>
Eric W. Danly, Citttorney
Ordinance No. 2516 N.C.S.
Page 2
Exhibit A to Ordinance
LEASE
This Commercial Lease Agreement (the "Lease"") is entered into as of
, 2015, by and between the City of Petaluma, a California charter city
("Landlord") and Committee on the Shelterless, a California nonprofit public benefit
corporation ("Tenant"). Landlord and Tenant are hereinafter referred to individually as "Party"
and collectively as "Parties."
8 RECITALS
9 A. Landlord owns in fee simple real property located at 1500 Boulevard South
10 Petaluma, Petaluma, CA (Assessor's Parcel Number: 019-210-012), which has been improved
11 with a building ("Property").
12 B. Landlord currently rents hall' of the Property to Petaluma People Services, but the
13 other half of the Properly, approximately 5.000 (live thousand) square feet is vacant.
14 C. Currently, Tenant provides essential social and human services to the homeless
15 community in Petaluma at the Mary Isaak Center, but due to restrictions at the Mary Isaak
16 Center is not able to offer emergency shelter to homeless families.
17 D. Tenant desires to offer emergency shelter to homeless families, and the Landlord
18 desires to provide a location at which the Tenant may offer such services, subject to the terms
19 and conditions herein.
20 NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
21 which are hereby acknowledged, the Parties agree as follows:
22 1. PREMISES: Landlord hereby leases the Property to Tenant in accordance with
23 this provision, including approximately half of the building, unimproved areas of the Property,
24 driveways, parking facilities, and pedestrian and vehicular ingress, egress and travel ways , (the
25 "Premises"). all as depicted in Exhibit A attached hereto in accordance with the provisions of
26 this Lease. Common and shared use facilities in and around the building on the Property are
27 included in the Premises subject to this Lease and leased non -exclusively to Tenant. Tenant's
28 obligations regarding the Premises pursuant to this Lease, including, but not limited to, Tenant's
29 use, maintenance and repair, indemnity and insurance obligations, apply to the entire Premises,
30 including the common and shared use facilities, and such Tenant obligations concerning portions
31 of the Premises leased non -exclusively to Tenant shall be joint and several with the obligations
32 of any other entity to whom portions of the Premises may be leased non -exclusively.
33 2. TERM: The tens of this Lease shall commence on
31 ("Commencement Date") and continue through December 31, 2019, unless terminated sooner
35 in accordance with the provisions of this Lease (the "Rental Period"). The Parties agree to
36 execute and record a Memorandum of this Lease in the official records of Sonoma Countv.
Ordinance No. 2516 N.C.S. Page 3
1 3. RENT: In consideration of the fact that COTS is providing valuable community
2 service, Tenant shall pay annual rent for the period in the sum of $1.00 per year for the use and
3 occupancy of the Premises, due as of the Commencement Date and each anniversary thereof.
4 4. TRIPLE NET LEASE: This is a triple net lease to Landlord. It is the intent of the
5 Parties that the Rent shall be an absolutely net return to Landlord. Tenant shall pay all costs and
6 expenses relating to Tenant's occupancy of the Premises of any hind or nature whatsoever. Such
7 costs and expenses include, without limitation, all amounts attributable to, paid or incurred in
8 connection with Tenant's operation, repair, maintenance (whether interior or exterior) and
9 management of the Premises; all taxes and assessments; insurance premiums; security; janitorial
10 services; labor; costs of licenses, permits and inspections; and all other costs and expenses
11 incurred or paid by Tenant with respect to the Premises.
12 5. USE: The premises shall be used as emergency shelter for homeless
13 families with children, COTS administrative offices, and social service programs
14 related to family emergency shelter ("Use"). No other use may be conducted on
15 the Premises other than the Use. Landlord may treat any other use of the
16 Premises by Lessee as an Event of Default. Permission granted for the Use in this
17 Lease does not constitute regulatory approval, and to the extent that such Use is
18 subject to any regulatory approval or permit, such Use shall not commence until
19 any and all applicable regulatory approvals and/or permits have been granted.
20 6. COMPLIANCE WITH LAWS. Tenant shall procure and maintain all
21 governmental approvals, pennits and licenses required for the lawful conduct of Tenant's
22 permitted use of the Premises and shall comply with all state, federal and local laws, rules and
23 regulations in connection with its use and occupancy of the Premises. Landlord may treat
24 Tenant's failure to comply with such state, federal and local laws as an Event of Default.
25 7. UTILITIES AND SERVICES: Tenant shall pay when due all charges or
26 assessments for telephone, water sewer, gas, heat, electricity, garbage disposal, trash disposal
27 and all other utilities and services that are supplied to the Premises.
28 8. MAINTENANCE AND REPAIR: Tenant shall maintain the Premises in a clean
29 and sanitary condition. Landlord shall have no obligation to make repairs to or perform
30 maintenance of the Premises. Without limiting the provisions in Section 4 of this Lease, Tenant
31 shall pay all costs and expenses attributable to or incurred in connection with Tenant's use and
32 occupancy of the Premises. including janitorial and landscape maintenance services. In the event
33 that Tenant fails to maintain or keep the Premises in good repair or if Tenant's acts or omissions
34 result in a nuisance or health or safety risk, at Landlord's option, Landlord may perform any such
35 required maintenance and repairs. Within ten (10) days of Tenant's receipt of Landlord's
36 invoice therefore, Tenant shall pay Landlord's costs incurred in connection with such repairs.
37 9. SECURITY: Tenant is responsible for providing its own security on the Premises
38 as Tenant deems necessary in its sole discretion.
39 10. STATUTORY NOTICE POSSESSORY INTEREST TAX, TAXES AND
40 ASSESSMENTS: Throughout the Tern, Tenant shall pay prior to delinquency, all applicable
41 real property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy
Ordinance No. 2516 N.C.S. Page 4
taxes, assessments whether general or special, ordinary or extraordinary. foreseen or unforeseen,
of any hind or nature whatsoever pertaining to the Premises or a part thereof (collectively,
"Impositions"). Specifically, Tenant is advised that under California Revenue and Taxation
Code Section 107.6, execution of this Lease may create a possessory interest for Tenant subject
to property taxation. Tenant hereby agrees that if such possessory interest is created and is
subject to properly taxation, Tenant shall be solely responsible for the payment of any property
taxes levied on any such interest. Upon request by Landlord, Tenant shall furnish, in a form
satisfactory to Landlord, evidence of payment prior to delinquency of all Impositions paid by
Tenant.
10 11. AS -IS CONDITION OF PREMISES: Tenant is leasing the Premises in its "AS
11 IS" condition as such condition exists as of the Commencement Date. By executing this Lease,
12 Tenant acknowledges that it has had the opportunity to inspect the Premises and accepts the
13 Premises in the AS IS condition.
14 12. FUTURE ALTERATIONS AND REPAIRS: Except as provided in this Section,
15 Tenant shall not male alterations to the Premises without the prior written consent of Landlord.
16 Landlord agrees that Tenant is entitled to make repairs as part of its normal maintenance and risk
17 management programs. Subject to obtaining applicable building permits, Landlord hereby
18 approves of Tenant malting the following alterations as specified in the estimate dated April 24,
19 2014, from Jay Valentine of Valentine Builders, Inc. to Mike Johnson of COTS, which include:
20 i. demolition of the office used as a playroom; ii. divide the office used as a playroom into two
21 separate rooms; iii. remove all existing baseboards in all rooms except bathrooms: iv. construct
22 new entrance: v. install new commercial vinyl and rubber base throughout the except for the
23 bathrooms; vi., paint all rooms, including walls, ceilings and doors: and vii. eliminate exposed
24 wiring by routing inside walls or improving installation. All of the foregoing alterations shall be
25 undertaken at Tenant's sole expense. Permission granted for such alterations does not constitute
26 regulatory approval, and to the extent that such alterations are subject to any regulatory approval
27 or permit, such alterations shall not commence until any and all applicable regulatory approvals
28 and/or permits have been granted.
29 13. INDEMNITY: To the maximum extent permitted by law, tenant shall indemnify,
30 defend (with counsel reasonably acceptable to Landlord) and hold Landlord, the City of
31 Petaluma, and its officials, officers, agents, employees, contractors, guests and invitees
32 (collectively, "Indemnitees") harmless from and against any and all claims, demands, liabilities,
33 losses, damages, expenses and causes of actions of any kind, including, but not limited to,
34 attorneys' fees and costs of suit ("Losses') arising out of or in connection with use, occupation,
35 operation, improvement, repair or management of the Premises; and/or failure to comply with
36 any of Tenant's obligations contained in this Lease; by Tenant or any of Tenant's officials,
37 officers, employees. contractors, agents, or volunteers, provided that Tenant shall not be
38 obligated to indemnify, defend or hold the Indemnitees harmless for Losses resulting from
39 Indemnitees' sole or active negligence or willful misconduct . Tenant's indemnity obligation in
40 this provision shall survive the termination or expiration of this Lease with respect to any Losses
41 that occur during the Term.
42 14. INSURANCE REOUIREMENTS: During the term of this Lease, all extensions
43 thereof, hold -over periods or any other occupancy of the Premises by Tenant, Tenant shall
44 maintain at its sole cost and expense, the following insurance coverages: (i) Comprehensive
Ordinance No. 2516 N.C.S. Page 5
1 General Liability insurance issued by a carrier authorized to sell insurance in the State of
2 California, written on an occurrence basis, and providing coverage for bodily injury, death and
3 property damage caused by or occurring in connection with Tenant's use and occupancy of the
4 Premises with a policy limit of at least Two Million U.S. Dollars ($2,000,000) per occurrence;
5 (ii) Workers' Compensation insurance in compliance with the requirements of law; and (iii)
6 property insurance providing coverage against fire, casualty loss and damage to the Premises.
7 Tenant shall provide Landlord with satisfactory evidence of the foregoing insurance coverage
8 prior to the commencement of the Tenn and, upon Landlord's request, of its continuance in force
9 throughout the Term. The foregoing insurance policies shall be primary and noncontributing
10 with respect to any policies issued to Landlord and shall name Landlord as additional insureds
11 and/or loss payees, as their interests may appear.
12 15. NONDISCRIMINATION: Tenant hereby covenants by and for itself and its
13 successors and assigns, and all persons claiming under or through it, and this Lease is made and
14 accepted upon and subject to the conditions that there shall be no discrimination against or
15 segregation of any person or group of persons on any basis listed in subdivision (a) or (d) of
16 Section 12955 of the Government Code. as those bases are defined in Sections 13926, 12926. 1,
17 subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of
18 the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or
19 enjoyment of the Premises nor shall Tenant or any person claiming under or through it establish
20 or permit any such practice or practices of discrimination or segregation with reference to the
21 selection, location, number, use or occupancy of tenants, subtenants or vendees in the Premises.
22 17. RIGHT OF ENTRY: To the maximum extent provided by law, Landlord shall
23 have the right to enter and to inspect the Premises to ensure compliance with this Lease at all
24 reasonable times during the term of this Lease, provided that the Tenant is given at least 24
25 (twenty-four) notice of any inspection. Notwithstanding the foregoing, in the event of an
26 emergency, Landlord shall have the right to enter, to inspect, and to undertake any repairs or take
27 other action as necessary to mitigate the emergency without notice. Tenant shall provide
28 Landlord with a key to all Tenant -furnished locks securing the Premises and/or Landlord shall
29 retain a key to any Landlord -Furnished lock(s).
30 18. PREVAILING WAGE. This Lease shall be subject to the
31 requirements of the California Prevailing Wage Law, California Labor Code
32 Section 1720 et seq., and to the extent applicable, Tenant shall comply with all
33 applicable requirements of the California Prevailing Wage Law, including, but
34 not limited to, all applicable requirements contained in Exhibit B, which is
35 attached to and made a part of this Agreement. Tenant's noncompliance with
36 the applicable requirements of this section shall constitute an Event of Default.
37 Notwithstanding the foregoing, prior to undertaking any improvement,
38 alteration or maintenance, the Parties may agree in writing that the proposed
39 improvement, alternation or maintenance does not fall within the definition of
40 public works as defined in Labor Code section 1720, or alternatively, is otherwise
41 exempt from complying with Prevailing Wage Law.
42 19. SUBLETTING: Tenant shall not assign this Lease or sublet any portion of the
43 Premises without the prior written consent of Landlord.
Ordinance No. 2516 N.C.S. Page 6
1 20. DEFAULT: Tenant shall be in default of this Lease upon the occurrence of any
2 of the following ("Events of Default"): (i) the failure to pay any monetary obligation when due,
3 (ii) the failure to obtain and maintain insurance required by this Lease, (iii) the voluntary or
4 involuntary transfer of all or any portion of Tenant's interest in the Premises without Landlord's
5 prior written consent, or (iv) a default in the performance of any term, provision, covenant or
6 agreement pursuant to this Lease. Upon the occurrence of an Event of Default, the non -
7 defaulting party shall deliver a notice to the non-performing party ("Notice of Default") stating
8 the nature of the obligation which such non-performing party has failed to perform, and stating
9 the applicable period of time, if any, permitted to cure the default. Failure to give, or delay in
10 giving, a Notice of Default shall not constitute a waiver of any obligation or covenant required to
11 be performed hereunder.
12 21. TERMINATION: REMEDIES. Upon the occurrence of any Event of Default,
13 and in addition to any and all other rights or remedies of Landlord hereunder and/or provided at
14 law or in equity, Landlord shall have the right to terminate this Lease and Tenant's possessory
15 rights hereunder in accordance with applicable law. No remedy specified in this Lease shall be
16 considered exclusive of any other remedy, but the same shall be cumulative.
17 22. NOTICES: All notices shall be deemed given when made in writing and
18 deposited in the United States mail, certified, postage prepaid and addressed to such party the
19 following address:
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To Landlord: City of Petaluma
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11 English Street
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Petaluma, CA 94952
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Attention: Housing Administrator
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Telephone: (707) 778-4555
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Facsimile: (707) 778-4586
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To Tenant: Committee on the Shelterless (COTS)
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900 Hopper Street
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Petaluma, CA 94952
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Attention: Executive Director
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Telephone: (707) 765-6530
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Facsimile: (707) 765-9043
34 Either Party may change its address for the receipt of notices by giving written notice of
35 change to the other Party. Either Party may give personal notice to the other Party.
36 23. FAILURE TO VACATE: In the event that Tenant holds over, Landlord's shall
37 have all remedies as may be available to Landlord at law or in equity. In addition, Tenant shall
38 indemnify, defend (with counsel reasonably acceptable to Landlord) and hold harmless Landlord
39 and the City of Petaluma from all Losses resulting from Tenant's failure to vacate pursuant to
40 this Lease. This indemnity shall survive the expiration or termination of the Lease.
41 24. DISPOSITION OF IMPROVEMENTS: Prior to the expiration or termination of
42 this Lease, Tenant shall (i) remove all personal equipment, improvements, fixtures and property
43 placed on the Premises by Tenant, (ii) repair any damage caused by said removal, and (iii)
Ordinance No. 2516 N.C.S. Page 7
1 restore the Premises to its condition on the Commencement Dale, less normal wear and tear.
2 except as Landlord may otherwise approve in writing. Except as expressly provided herein, upon
3 the expiration or earlier termination of this Lease all existing structures and other improvements
4 on the Premises shall unconditionally be and become the sole property of Landlord, and Tenant
5 shall have no right to compensation therefore. In the event that Tenant does not remove its
6 personal property within thirty (30) days after Lease expiration or termination, Landlord, at its
7 option, may deem such property abandoned and either retain or dispose of it in accordance with
8 applicable law.
9 25. INDEPENDENT CONTRACTOR: This Lease shall not be construed or
10 interpreted to create a partnership or joint venture between Landlord and Tenant.
11 26. CORPORATE AUTHORITY: Each individual executing this Lease on Tenant's
12 behalf represents and warrants that he or she is duly authorized to execute and deliver this Lease
13 on Tenant's behalf and that this Lease is binding on Tenant in accordance with its terms.
14 27. SEVERABILITY: The determination that a provision of this Lease is illegal or
15 unenforceable shall not affect any other provision of this Lease.
16 28. BINDING CLAUSE: The provisions, covenants and conditions ofthis Lease
17 shall extend to, be binding upon and insure to the benefit of the heirs, executors, administrators,
18 successors and assigns of the respective Parties hereon.
19 29. SECTION HEADINGS: All section headings contained herein are for
20 convenience of reference only and are not intended to define or limit the scope of any provisions
21 of this Lease.
22 30. ESSENCE OF TIME: Time is of the essence for every provision, covenant and
23 condition of this Lease.
24 31. ENTIRE AGREEMENT: This Lease contains all the agreements of the parties
25 hereto and supersedes all prior negotiations. There have been no representations by Landlord or
26 understandings made between Landlord and Tenant other than those set forth in this Lease.
27 32. AMENDMENT: This Lease may only be modified or amended by a written
28 instrument duly executed by the Parties hereto.
29 IN WITNESS WHEREOF, this Lease has been executed by the Parties hereto as of the
30 date listed below.
31 SIGNATURES ON FOLLOWING PAGE.
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Ordinance No. 2516 N.C.S. Page 8
I TENANT
2 Committee on the Shelterless
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4 By:
5 Mike Johnson, ESecntive Director
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7 LANDLORD
8 City of Petaluma
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10 By:
11 John Brown, City Manager
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13 Attest:
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15 By:
16 Claire Cooper, City Clerk
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18 Approved as to Fornn:
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20 By:
21 Eric W. Danly
22 City Attorney
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Ordinance No. 2516 N.C.S. Page 9
1
Premises
Ordinance No. 2516 N.C.S.
Exhibit A to Lease
Page 10
ter.
_s
Page 10
4
Prevailing Wage Exhibit B
Exhibit B to Lease
7 HOURS OF WORK:
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9 A. In accordance with California Labor Code Section 1810, eight (8) hours of labor in
10 performance of the Services shall constitute a legal day's work under this
11 Agreement.
12
13 B. In accordance with California Labor Code Section 1811, the time of service of any
14 worker employed in performance of the Services is limited to eight hours during
15 any one calendar day, and forty hours during any one calendar week, except in
16 accordance with California Labor Code Section 1815; which provides that work
17 in excess of eight hours during any one calendar day and forty hours during any
18 one calendar week is permitted upon compensation for all hours worked in
19 excess of eight hours during any one calendar day and forty hours during any
20 one calendar week at not less than one -and -one-half times the basic rate of pay.
21
22 C. The Consultant and its subconsultants shall forfeit as a penalty to the City $25 for
23 each worker employed in the performance of the Services for each calendar day
24 during which the worker is required or permitted to work more than eight (8)
25 hours in any one calendar day, or more than forty (40) hours in any one calendar
26 week, in violation of the provisions of California Labor Code Section 1810 and
27 following.
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29 WAGES:
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31 A. In accordance with California Labor Code Section 1773.2, the City has
32 determined the general prevailing wages in the locality in which the Services are
33 to be performed for each craft or type of work needed to be as published by the
34 State of California Department of Industrial Relations, Division of Labor
35 Statistics and Research, a copy of which is on file with the City and shall be made
36 available on request. The Consultant and subconsultants engaged in the
37 performance of the Services shall pay no less than these rates to all persons
38 engaged in performance of the Services.
39
40 B. In accordance with Labor Code Section 1775, the Consultant and any
41 subconsultants engaged in performance of the Services shall comply Labor Code
42 Section 1775 which establishes a penalty of up to $50 per day for each worker
43 engaged in the performance of the Services that the Consultant or any
44 subconsultant pays less than the specified prevailing wage. The amount of such
Ordinance No. 2516 N.C.S. Page 11
1 penalty shall be determined by the Labor Commissioner and shall be based on
2 consideration of the mistake, inadvertence, or neglect of the Consultant or
3 subconsultant in failing to pay the correct rate of prevailing wages, or the
4 previous record of the Consultant or subconsultant in meeting applicable
5 prevailing wage obligations, or the willful failure by the Consultant or
6 subconsultant to pay the correct rates of prevailing wages. A mistake,
7 inadvertence, or neglect in failing to pay the correct rate of prevailing wages is
8 not excusable if the Consultant or subconsultant had knowledge of their
9 obligations under the California Labor Code. The Consultant or subconsultant
10 shall pay the difference between the prevailing wage rates and the amount paid
11 to each worker for each calendar day or portion thereof for which each worker
12 was paid less than the prevailing wage rate. If a subconsultant worker engaged
13 in performance of the Services is not paid the general prevailing per diem wages
14 by the subconsultant, the Consultant is not liable for any penalties therefore
15 unless the Consultant had knowledge of that failure or unless the Consultant
16 fails to comply with all of the following requirements:
17
18 1. The Agreement executed between the Consultant and the subconsultant
19 for the performance of part of the Services shall include a copy of the
20 provisions of California Labor Code Sections 1771, 1775,1776,1777.5,
21 1813, and 1815.
22 2. The Consultant shall monitor payment of the specified general prevailing
23 rate of per diem wages by the subconsultant by periodic review of the
24 subconsultant's certified payroll records.
25 3. Upon becoming aware of a subconsultant's failure to pay the
26 specified prevailing rate of wages, the Consultant shall diligently
27 take corrective action to halt or rectify the failure, including, but not
28 limited to, retaining sufficient funds due the subconsultant for
29 performance of the Services.
30 4. Prior to making final payment to the subconsultant, the Consultant shall
31 obtain an affidavit signed under penalty of perjury from the subconsultant
32 that the subconsultant has paid the specified general prevailing rate of per
33 diem wages employees engaged in the performance of the Services and
34 any amounts due pursuant to California Labor Code Section 1813.
35
36 C. In accordance with California Labor Code Section 1776, the Consultant and each
37 subconsultant engaged in performance of the Services, shall keep accurate
38 payroll records showing the name, address, social security number, work
39 classification, straight time and overtime hours worked each day and week, and
40 the actual per diem wages paid to each journeyman, apprentice, worker, or other
41 employee employed in performance of the Services. Each payroll record shall
42 contain or be verified by a written declaration that it is made under penalty of
43 perjury, stating both of the following:
Ordinance No. 2516 N.C.S. Page 12
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Sections 1771, 1811,
and 1815 for any Services performed by the employer's employees on the
public works project.
7 The payroll records required pursuant to California Labor Code Section 1776
8 shall be certified and shall be available for inspection by the Owner and its
9 authorized representatives, the Division of Labor Standards Enforcement, the
10 Division of Apprenticeship Standards of the Department of Industrial Relations
11 and shall otherwise be available for inspection in accordance with California
12 Labor Code Section 1776,
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14 D. In accordance with California Labor Code Section 1777.5, the Consultant, on
15 behalf of the Consultant and any subconsultants engaged in performance of the
16 Services, shall be responsible for ensuring compliance with California Labor
17 Code Section 1777.5 governing employment and payment of apprentices on
18 public works contracts.
19
20 E. In case it becomes necessary for the Consultant or any subconsultant engaged in
21 performance of the Services to employ on the Services any person in a trade or
22 occupation (except executive, supervisory, administrative, clerical, or other non -
23 manual workers as such) for which no minimum wage rate has been determined
24 by the Director of the Department of Industrial Relations, the Consultant shall
25 pay the minimum rate of wages specified therein for the classification which
26 most nearly corresponds to Services to be performed by that person. The
27 minimum rate thus furnished shall be applicable as a minimum for such trade or
28 occupation from the time of the initial employment of the person affected and
29 during the continuance of such employment.
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Ordinance No. 2516 N.C.S. Page 13