HomeMy WebLinkAboutOrdinance 2526 N.C.S. 01/26/2015EFFECTIVE DATE ORDINANCE NO. 2526 N.C.S.
OF ORDINANCE
February 26, 2015
Introduced by Seconded by
Gabe Kearney Kathy Miller
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING
A LEASE AGREEMENT, BETWEEN PETALUMA ECUMENICAL PROPERTIES, INC., A CALIFORNIA
NONPROFIT PUBLIC BENEFIT CORPORATION ("TENANT") AND THE CITY OF PETALUMA
("LANDLORD") FOR A PORTION OF IMPROVED REAL PROPERTY (APN 008-530-007)
("PREMISES"), 951 PETALUMA BOULEVARD SOUTH, PETALUMA, CA, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE ALL DOCUMENTS NECESSARY TO COMPLETE THE LEASE TRANSACTION
WHEREAS, Section 46 of the Charter of the City of Petaluma requires that specified
actions for the acquisition, sale, or lease of real property be taken by Ordinance; and,
WHEREAS, Landlord owns in fee simple real property located at 951 Petaluma Boulevard,
So., Petaluma, CA (Assessor's Parcel Number: 008-530-007), which has been improved with a
building ("Property"); and
22 WHEREAS, Tenant desires to lease the premises for their corporate office, and the
23 Landlord desires to provide a location at which the Tenant may offer such services, subject to
24 the terms and conditions of the lease attached to and made a part of this ordinance as Exhibit
25 A; and
WHEREAS, the City Council finds this action qualifies for categorical exemption under the
California Environmental Quality Act (CEQA) pursuant to Title 14, Chapter 3 of the California
Code of Regulations (CEQA Guidelines), sections 15061, 15301 because the project involves
operation, repair, maintenance, permitting, leasing, licensing and minor alteration of an existing
facility involving negligible or no expansion of use beyond that existing at the time of the City's
determination, in that leasing to PEP Housing approximately 10,000 square feet of the City
owned property at 951 Petaluma Boulevard South pursuant to 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 services that PEP Housing is 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 PEP Housing, as Tenant, a copy of which is attached as Exhibit A.
Ordinance No. 2526 N.C.S.
Page I
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 5th day of January 2015.
ADOPTED this 2601 day of January, 2015 by the following vote:
Ayes: Albertson, Barrett, Mayor Glass, Healy, Kearney, King, Vice Mayor Miller
Noes: None
Abstain: None
Absent: None
avid Glass, Mayor
Claire Cooper, CMC, City ClerOJ
APPROV; D A TQ ORM:
Eric W. Danly, CitiAttorney
Ordinance No. 2526 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 Petaluma
Ecumenical Properties, Inc., a California nonprofit public benefit corporation ("Tenant").
Landlord and Tenant are hereinafter referred to individually as "Party" and collectively as
"Parties."
RECITALS
10 A. Landlord owns in fee simple real property located at 951 Petaluma Blvd., South,
11 Petaluma, CA (Assessor's Parcel Number: 008-530-007), which has been improved with a building
12 ("Property")
13 B. Landlord and Tenant previously entered into a lease dated March 1, 2011 in
14 which Landlord leased the Property to the Tenant for use as their corporate office.
15 C. The lease dated March 1, 2011 will expire on February 28, 2015.
16 D. Tenant desires to continue leasing the Property for their corporate office, and the
17 Landlord desires to provide a location for such use, subject to the terms and conditions herein.
18 NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
19 which are hereby acknowledged, the Parties agree as follows:
20 1. PREMISES: Landlord hereby leases the Property to Tenant in accordance with this
21 provision, including both improved and, unimproved areas of the Property, driveways, parking
22 facilities, and pedestrian and vehicular ingress, egress and travel ways , (the "Premises"), all as
23 depicted in Exhibit A attached hereto in accordance with the provisions of this Lease. Tenant's
24 obligations regarding the Premises pursuant to this Lease, including, but not limited to, Tenant's
25 use, maintenance and repair, indemnity and insurance obligations, apply to the entire Premises.
26 2. TERM: The term of this Lease shall commence on March 1, 2015
27 ("Commencement Date") and continue through February 28, 2020, unless terminated sooner in
28 accordance with the provisions of this Lease (the "Rental Period").
29 3. RENT: Tenant shall pay a rent for the period in the sum of $2,000.00 per month for
30 the use and occupancy of the Premises, due as of the Commencement Date and each
31 anniversary thereof.
32 4. TRIPLE NET LEASE: This is a triple net lease to Landlord. It is the intent of the Parties
33 that the Rent shall be an absolutely net return to Landlord. Tenant shall pay all costs and
34 expenses relating to Tenant's occupancy of the Premises of any kind or nature whatsoever.
35 Such costs and expenses include, without limitation, all amounts attributable to, paid or incurred
36 in connection with Tenant's operation, repair, maintenance (whether interior or exterior) and
37 management of the Premises; all taxes and assessments; insurance premiums; security; janitorial
38 services; labor; costs of licenses, permits and inspections; and all other costs and expenses
39 incurred or paid by Tenant with respect to the Premises.
40 5. USE: The premises shall be used as a solely for the purpose of
41 administrative offices for the development and property management of affordable
42 housing ("Use"), No other use may be conducted on the Premises other than the Use.
Ordinance No. 2526 N.C.S. Page 3
1 Tenant shall obtain and keep in effect all licenses and entitlements required for this use of
2 the Premises and shall comply with all terms and conditions of said licenses and
3 entitlements. No other use may be conducted on the Premises other than the Use.
4 Landlord may treat any other use of the Premises by Lessee as an Event of Default, as
5 defined in Section 20. Permission granted for the Use in this Lease does not constitute
6 regulatory approval, and to the extent that such Use is subject to any regulatory
7 approval or permit, such Use shall not commence until any and all applicable regulatory
8 approvals and/or permits have been granted.
9 6. COMPLIANCE WITH LAWS. Tenant shall procure and maintain all governmental
10 approvals, permits and licenses required for the lawful conduct of Tenant's permitted use of the
11 Premises and shall comply with all state, federal and local laws, rules and regulations in
12 connection with its use and occupancy of the Premises. Landlord may treat Tenant's failure to
13 comply with such state, federal and local laws as an Event of Default.
14 7. UTILITIES AND SERVICES: Tenant shall pay when due all charges or assessments for
15 telephone, water sewer, gas, heat, electricity, garbage disposal, trash disposal and all other
16 utilities and services that are supplied to the Premises.
17 8. MAINTENANCE AND REPAIR: Tenant shall maintain the Premises in a clean and
18 sanitary condition. Landlord shall have no obligation to make repairs to or perform maintenance
19 of the Premises. Without limiting the provisions in Section 4 of this Lease, Tenant shall pay all costs
20 and expenses attributable to or incurred in connection with Tenant's use and occupancy of the
21 Premises, including janitorial and landscape maintenance services. In the event that Tenant fails
22 to maintain or keep the Premises in good repair or if Tenant's acts or omissions result in a
23 nuisance or health or safety risk, at Landlord's option, Landlord may perform any such required
24 maintenance and repairs. Within ten (10) days of Tenant's receipt of Landlord's invoice
25 therefore, Tenant shall pay Landlord's costs incurred in connection with such repairs.
26 9. SECURITY: Tenant is responsible for providing its own security on the Premises as
27 Tenant deems necessary in its sole discretion.
28 10. STATUTORY NOTICE POSSESSORY INTEREST TAX. TAXES AND ASSESSMENTS:
29 Throughout the Term, Tenant shall pay prior to delinquency, all applicable real property taxes,
30 possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments
31 whether general or special, ordinary or extraordinary, foreseen or unforeseen, of any kind or
32 nature whatsoever pertaining to the Premises or a part thereof (collectively, "Impositions"),
33 Specifically, Tenant is advised that under California Revenue and Taxation Code Section 107.6,
34 execution of this Lease may create a possessory interest for Tenant subject to property taxation.
35 Tenant hereby agrees that if such possessory interest is created and is subject to property
36 taxation, Tenant shall be solely responsible for the payment of any property taxes levied on any
37 such interest. Upon request by Landlord, Tenant shall furnish, in a form satisfactory to Landlord,
38 evidence of payment prior to delinquency of all Impositions paid by Tenant.
39 1]. AS -IS CONDITION OF PREMISES: Tenant is leasing the Premises in its "AS IS"
40 condition as such condition exists as of the Commencement Date. By executing this Lease,
41 Tenant acknowledges that it has had the opportunity to inspect the Premises and accepts the
42 Premises in the AS IS condition.
43 12. FUTURE ALTERATIONS AND REPAIRS: Except as provided in this Section, Tenant
44 shall not make alterations to the Premises without the prior written consent of Landlord. Landlord
45 agrees that Tenant is entitled to make repairs as part of its normal maintenance and risk
46 management programs.
Ordinance No. 2526 N.C.S. Page 4
13. INDEMNITY: To the maximum extent permitted by law, Tenant shall indemnify,
defend (with counsel reasonably acceptable to Landlord) and hold Landlord, the City of
Petaluma, and its officials, officers, agents, employees, contractors, guests and invitees
(collectively, "Indemnitees") harmless from and against any and all claims, demands, liabilities,
losses, damages, expenses and causes of actions of any kind, including, but not limited to,
attorneys' fees and costs of suit ("Losses") arising out of or in connection with use, occupation,
operation, improvement, repair or management of the Premises; and/or failure to comply with
any of Tenant's obligations contained in this Lease; by Tenant or any of Tenant's officials, officers,
employees, contractors, agents, or volunteers, provided that Tenant shall not be obligated to
indemnify, defend or hold the Indemnitees harmless for Losses resulting from Indemnitees' sole or
active negligence or willful misconduct . Tenant's indemnity obligation in this provision shall
survive the termination or expiration of this Lease with respect to any Losses that occur during the
Term.
14. INSURANCE REQUIREMENTS: During the term of this Lease, all extensions thereof,
hold -over periods or any other occupancy of the Premises by Tenant, Tenant shall maintain at its
sole cost and expense, the following insurance coverages: (i) Comprehensive General Liability
insurance issued by a carrier authorized to sell insurance in the State of California, written on an
occurrence basis, and providing coverage for bodily injury, death and property damage
caused by or occurring in connection with Tenant's use and occupancy of the Premises with a
policy limit of at least Two Million U.S. Dollars ($2,000,000) per occurrence; (it) Workers'
Compensation insurance in compliance with the requirements of law; and (iii) property
insurance providing coverage against fire, casualty loss and damage to the Premises. Tenant
shall provide Landlord with satisfactory evidence of the foregoing insurance coverage prior to
the commencement of the Term and, upon Landlord's request, of its continuance in force
throughout the Term. The foregoing insurance policies shall be primary and noncontributing with
respect to any policies issued to Landlord and shall name Landlord as additional insureds and/or
loss payees, as their interests may appear.
28 15. NONDISCRIMINATION: Tenant hereby covenants by and for itself and its
29 successors and assigns, and all persons claiming under or through it, and this Lease is made and
30 accepted upon and subject to the conditions that there shall be no discrimination against or
31 segregation of any person or group of persons on any basis listed in subdivision (a) or (d) of
32 Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1,
33 subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
34 Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment
35 of the Premises nor shall Tenant or any person claiming under or through it establish or permit any
36 such practice or practices of discrimination or segregation with reference to the selection,
37 location, number, use or occupancy of tenants, subtenants or vendees in the Premises.
38 16. RIGHT OF ENTRY: To the maximum extent provided by law, Landlord shall have
39 the right to enter and to inspect the Premises to ensure compliance with this Lease at all
40 reasonable times during the term of this Lease, provided that the Tenant is given at least 24
41 (twenty-four) notice of any inspection. Notwithstanding the foregoing, in the event of an
42 emergency, Landlord shall have the right to enter, to inspect, and to undertake any repairs or
43 take other action as necessary to mitigate the emergency without notice. Tenant shall provide
44 Landlord with a key to all Tenant -furnished locks securing the Premises and/or Landlord shall
45 retain a key to any Landlord -furnished lock(s).
46 17. PREVAILING WAGE. This Lease shall be subject to the requirements of the
47 California Prevailing Wage Law, California Labor Code Section 1720 et seq., and to the
48 extent applicable, Tenant shall comply with all applicable requirements of the California
49 Prevailing Wage Law, including, but not limited to, all applicable requirements contained
50 in Exhibit B, which is attached to and made a part of this Agreement. Tenant's
Ordinance No. 2526 N.C.S. Page 5
I noncompliance with the applicable requirements of this section shall constitute an Event
2 of Default. Notwithstanding the foregoing, prior to undertaking any improvement,
3 alteration or maintenance, the Parties may agree in writing that the proposed
=4 improvement, alternation or maintenance does not fall within the definition of public
5 works as defined in Labor Code section 1720, or alternatively, is otherwise exempt from
6 complying with Prevailing Wage Law.
7 18. SUBLETTING: Tenant shall not assign this Lease or sublet any portion of the
8 Premises without the prior written consent of Landlord.
9 19. DEFAULT: Tenant shall be in default of this Lease upon the occurrence of any of
10 the following ("Events of Default"): (i) the failure to pay any monetary obligation when due, (it)
11 the failure to obtain and maintain insurance required by this Lease, (iii) the voluntary or
12 involuntary transfer of all or any portion of Tenant's interest in the Premises without Landlord's
13 prior written consent, or (iv) a default in the performance of any term, provision, covenant or
10 agreement pursuant to this Lease. Upon the occurrence of an Event of Default, the non -
15 defaulting party shall deliver a notice to the non-performing party ("Notice of Default") stating
16 the nature of the obligation which such non-performing party has failed to perform, and stating
17 the applicable period of time, if any, permitted to cure the default. Failure to give, or delay in
18 giving, a Notice of Default shall not constitute a waiver of any obligation or covenant required
19 to be performed hereunder.
20 20. TERMINATION: REMEDIES.
21 a. Termination for Cause: Upon the occurrence of any Event of Default, and
22 in addition to any and all other rights or remedies of Landlord hereunder and/or
23 provided at law or in equity, Landlord shall have the right to terminate this Lease and
24 Tenant's possessory rights hereunder in accordance with applicable law. No remedy
25 specified in this Lease shall be considered exclusive of any other remedy, but the same
26 shall be cumulative.
27 b. Termination without Cause: Landlord may terminate this Lease at any
28 time for any reason after delivering Notice as defined in section 21 at least 90 days in
29 advance of its intent to terminate the Lease. Tenant agrees to vacate the Premises
30 within 90 days of the Notice of the intent to terminate the Lease being delivered and
31 agrees to the Release as set forth in Section 20.c.
32 C. Release for Termination without Cause: Upon termination of this
33 Lease, without cause, Tenant may be or may become eligible to receive
3=4 compensation, reimbursement, assistance, including, but not limited to, the fair
35 market value of real and personal property, loss of goodwill, loss of profits, actual
36 and reasonable expenses for moving a business, loss of tangible real property as
37 a result of moving the business, expenses incurred in searching for replacement
38 site for the business, expenses to reestablish at the new site, "in -lieu payments"
39 and other such benefits (collectively, "Benefits") under the California Relocation
40 Assistance Act (Government Code, § 7260, et sec.), Title 25 of the California
41 Code of Regulations, Article I, § 19 of the California Constitution, the California
42 Eminent Domain Law (Civil Procedure Code, § 1230.010, et sec.) or other similar
43 local, state, or federal statute, ordinance, regulation, rule, or decisional law
44 (collectively "Compensatory Laws"). Tenant further acknowledges that it has
45 received full and fair compensation of all Benefits Tenant is or might be or might
46 become entitled to recover from Landlord as a result of, or in any way related to,
47 the Premises, the execution of this Lease, and the subsequent expiration or
48 termination of this Lease. Therefore, being fully informed of and understanding
Ordinance No. 2526 N.C.S. Page 6
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the acknowledgements made herein and of Tenant's rights or potential rights to
benefits under the Compensatory Laws, Tenant hereby expressly and
unconditionally waives, and releases Landlord from, any and all rights of Tenant
to claim, demand, sue for, or receive any Benefits which Tenant is or might be or
might become entitled to recover from Landlord as a result of, or in any way
related to the Premises, the execution of the Lease, and the subsequent
expiration of or termination of the Lease. The Landlord acknowledges and
agrees that the release and waiver set forth in this paragraph is material
consideration for Landlord entering into this Lease, and that but for this release
and waiver, Landlord would not have entered into this Lease. By releasing and
forever discharging the claims described herein, Lessee expressly waives any
rights under California Civil Code section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
Tenant's Initials
Landlord's Initials
21. NOTICES: All notices shall be deemed given when made in writing and deposited
in the United States mail, certified, postage prepaid and addressed to such party the following
address:
To Landlord: City of Petaluma
1 1 English Street
Petaluma, CA 94952
Attention: Housing Administrator
Telephone: (707) 778-4555
Facsimile: (707) 778-4586
To Tenant: Petaluma Ecumenical Properties, Inc. (PEP Housing)
951 Petaluma Boulevard South
Petaluma, CA 94952
Attention: Executive Director
Telephone: (707) 762-2336
Facsimile: (707) 765-9043
37 Either Party may change its address for the receipt of notices by giving written notice of
38 change to the other Party. Either Party may give personal notice to the other Party.
39 22. FAILURE TO VACATE: In the event that Tenant holds over, Landlord's shall have all
40 remedies as may be available to Landlord at law or in equity. In addition, Tenant shall
41 indemnify, defend (with counsel reasonably acceptable to Landlord) and hold harmless
42 Landlord and the City of Petaluma from all Losses resulting from Tenant's failure to vacate
43 pursuant to this Lease. This indemnity shall survive the expiration or termination of the Lease.
44 23. DISPOSITION OF IMPROVEMENTS: Prior to the expiration or termination of this
45 Lease, Tenant shall (i) remove all personal equipment, improvements, fixtures and property
46 placed on the Premises by Tenant, (ii) repair any damage caused by said removal, and (iii)
47 restore the Premises to its condition on the Commencement Date, less normal wear and tear,
48 except as Landlord may otherwise approve in writing. Except as expressly provided herein, upon
Ordinance No. 2526 N.C.S. Page 7
I the expiration or earlier termination of this Lease all existing structures and other improvements
2 on the Premises shall unconditionally be and become the sole property of Landlord, and Tenant
3 shall have no right to compensation therefore. In the event that Tenant does not remove its
4 personal property within thirty (30) days after Lease expiration or termination, Landlord, at its
5 option, may deem such property abandoned and either retain or dispose of it in accordance
6 with applicable law.
7 24, INDEPENDENT CONTRACTOR: This Lease shall not be construed or interpreted to
8 create a partnership or joint venture between Landlord and Tenant.
9 25. CORPORATE AUTHORITY: Each individual executing this Lease on Tenant's behalf
10 represents and warrants that he or she is duly authorized to execute and deliver this Lease on
11 Tenant's behalf and that this Lease is binding on Tenant in accordance with its terms.
12 26. SEVERABILITY: The determination that a provision of this Lease is illegal or
13 unenforceable shall not affect any other provision of this Lease.
1.1 27. BINDING CLAUSE: The provisions, covenants and conditions of this Lease shall
15 extend to, be binding upon and insure to the benefit of the heirs, executors, administrators,
16 successors and assigns of the respective Parties hereon.
17 28. SECTION HEADINGS: All section headings contained herein are for convenience
18 of reference only and are not intended to define or limit the scope of any provisions of this
19 Lease.
20 29. ESSENCE OF TIME: Time is of the essence for every provision, covenant and
21 condition of this Lease.
22 30. ENTIRE AGREEMENT: This Lease contains all the agreements of the parties hereto
23 and supersedes all prior leases, agreements and negotiations. There have been no
24 representations by Landlord or understandings made between Landlord and Tenant other than
25 those set forth in this Lease.
26 31. AMENDMENT: This Lease may only be modified or amended by a written
27 instrument duly executed by the Parties hereto.
28 IN WITNESS WHEREOF, this Lease has been executed by the Parties hereto as of the date
29 listed below.
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SIGNATURES ON FOLLOWING PAGE.
Ordinance No. 2526 N.C.S.
Page 8
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TENANT
Petaluma Ecumenical Properties, Inc.
Mary Stompe, Executive Director
LANDLORD
City of Petaluma
Attest:
-31
John Brown, City Manager
Claire Cooper, City Clerk
Approved as to Form:
31
Eric W. Danly, City Attorney
Ordinance No. 2526 N.C.S.
Page 9
Exhibit A to Lease
Premises
Descriotion of Premises:
The building is a 9,897 square foot Class D improvement constructed on a slab foundation. The
properties parking area is accessed off Petaluma Blvd. South, through a 21 -foot wide asphalt
drive and a wrought iron security gate.
The first floor measures 9,213 square feet. Approximately 2,713 square feet is comprised of an
entrance lobby, conference room, several private office areas will be used for PEP Housing's
corporate staff. Flooring materials in the private offices and conference areas are carpet. Each
of the men's and women's lavatory facilities are two stalls, of which, one stall in each is ADA
approved. Both lavatories contain floor drains, tile floor, and 5' of file wainscot.
The open area of approximately 6,500 square feet contains two rooms. One room is
approximately 1,350 s.f, and has a 8' x 35' kitchenette. The other room is approximately 870 s.f.
Both rooms contain vinyl flooring and a drop ceiling with florescent lighting. The remaining 4,280
s.f. is an open area with concrete flooring. There is a men's and women's restroom that is ADA
accessible.
The second floor is a 684 square foot open area located up a stairway off the main lobby. This
area also contains a small 10' x 3' kitchenette area and a 4' x 37' storage area. The entire
building is serviced by a HVAC system located in the rear of the building.
Surrounding the building is approximately 10,000 square feet of paved parking area on the south
and east sides of the building. The parking ratio is 3.3 space/ 1,000 s.f. There are approximately
25 parking spaces.
Ordinance No. 2526 N.C.S. Page 10
Exhibit 6 to Lease
Prevailing Wage
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, eight (8) hours of labor in
performance of the Services shall constitute a legal day's work under this Agreement.
In accordance with California Labor Code Section 1811, the time of service of any
worker employed in performance of the Services is limited to eight hours during any one
calendar day, and forty hours during any one calendar week, except in accordance
with California Labor Code Section 1815; which provides that work in excess of eight
hours during any one calendar day and forty hours during any one calendar week is
permitted upon compensation for all hours worked in excess of eight hours during any
one calendar day and forty hours during any one calendar week at not less than one -
and -one-half times the basic rate of pay.
C. The Consultant and its subconsultants shall forfeit as a penalty to the City $25 for each
worker employed in the performance of the Services for each calendar day during
which the worker is required or permitted to work more than eight (8) hours in any one
calendar day, or more than forty (40) hours in any one calendar week, in violation of the
provisions of California Labor Code Section 1810 and following.
LVATIMICIMS
A. In accordance with California Labor Code Section 1773.2, the City has determined the
general prevailing wages in the locality in which the Services are to be performed for
each craft or type of work needed to be as published by the State of California
Department of Industrial Relations, Division of Labor Statistics and Research, a copy of
which is on file with the City and shall be made available on request. The Consultant
and subconsultants engaged in the performance of the Services shall pay no less than
these rates to all persons engaged in performance of the Services.
In accordance with Labor Code Section 1775, the Consultant and any subconsultants
engaged in performance of the Services shall comply Labor Code Section 1775 which
establishes a penalty of up to $50 per day for each worker engaged in the performance
of the Services that the Consultant or any subconsultant pays less than the specified
prevailing wage. The amount of such penalty shall be determined by the Labor
Commissioner and shall be based on consideration of the mistake, inadvertence, or
neglect of the Consultant or subconsultant in failing to pay the correct rate of prevailing
wages, or the previous record of the Consultant or subconsultant in meeting applicable
prevailing wage obligations, or the willful failure by the Consultant or subconsultant to
pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing
to pay the correct rate of prevailing wages is not excusable if the Consultant or
subconsultant had knowledge of their obligations under the California Labor Code. The
Consultant or subconsultant shall pay the difference between the prevailing wage rates
and the amount paid to each worker for each calendar day or portion thereof for which
each worker was paid less than the prevailing wage rate. If a subconsultant worker
engaged in performance of the Services is not paid the general prevailing per diem
wages by the subconsultant, the Consultant is not liable for any penalties therefore unless
Ordinance No. 2526 N.C.S. Page 11
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the Consultant had knowledge of that failure or unless the Consultant fails to comply with
all of the following requirements:
1. The Agreement executed between the Consultant and the subconsultant for the
performance of part of the Services shall include a copy of the provisions of
California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of
per diem wages by the subconsultant by periodic review of the subconsultant's
certified payroll records.
3. Upon becoming aware of a subconsultont's failure to pay the specified
prevailing rate of wages, the Consultant shall diligently take corrective action to
halt or rectify the failure, including, but not limited to, retaining sufficient funds
due the subconsultant for performance of the Services.
4. Prior to making final payment to the subconsultant, the Consultant shall obtain an
affidavit signed under penalty of perjury from the subconsultant that the
subconsultant has paid the specified general prevailing rate of per diem wages
employees engaged in the performance of the Services and any amounts due
pursuant to California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776, the Consultant and each
subconsultant engaged in performance of the Services, shall keep accurate payroll
records showing the name, address, social security number, work classification, straight
time and overtime hours worked each day and week, and the actual per diem wages
paid to each journeyman, apprentice, worker, or other employee employed in
performance of the Services. Each payroll record shall contain or be verified by a written
declaration that it is made under penalty of perjury, stating both of the following:
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.
The payroll records required pursuant to California Labor Code Section 1776 shall be
certified and shall be available for inspection by the Owner and its authorized
representatives, the Division of Labor Standards Enforcement, the Division of
Apprenticeship Standards of the Department of Industrial Relations and shall otherwise
be available for inspection in accordance with California Labor Code Section 1776,
D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of
the Consultant and any subconsultants engaged in performance of the Services, shall be
responsible for ensuring compliance with California Labor Code Section 1777.5 governing
employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subconsultant engaged in
performance of the Services to employ on the Services any person in a trade or
occupation (except executive, supervisory, administrative, clerical, or other non manual
workers as such) for which no minimum wage rate has been determined by the Director
of the Department of Industrial Relations, the Consultant shall pay the minimum rate of
wages specified therein for the classification which most nearly corresponds to Services
to be performed by that person. The minimum rate thus furnished shall be applicable as
Ordinance No, 2526 N.C.S.
Page 12
a minimum for such trade or occupation from the time of the initial employment of the
person affected and during the continuance of such employment.
Ordinance No. 2526 N.C.S. Page 13