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HomeMy WebLinkAboutOrdinance 2530 N.C.S. 02/02/2015EFFECTIVE DATE OF ORDINANCE March 5. 2015 ORDINANCE NO. 2530 N.C.S. 1 Introduced by Seconded by 3 4 Gabe Kearney Kathy Miller 5 6 7 8 9 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING 10 A LEASE AGREEMENT, BETWEEN PETALUMA PEOPLE SERVICES CENTER, A CALIFORNIA 11 NONPROFIT PUBLIC BENEFIT CORPORATION ("TENANT") AND THE CITY OF PETALUMA 12 ("LANDLORD") FOR IMPROVED REAL PROPERTY(APN 136-111-022) ("PREMISES"), 13 LOCATED AT 211 NOVAK DRIVE, PETALUMA, CA, AND AUTHORIZING THE CITY MANAGER 14 TO EXECUTE ALL DOCUMENTS NECESSARY TO COMPLETE THE LEASE TRANSACTION 15 16 17 WHEREAS, Section 46 of the Charter of the City of Petaluma requires that specified 18 actions for the acquisition, sale, or lease of real property be taken by Ordinance; and, 19 20 WHEREAS, Landlord owns in fee simple real property located at 211 Novak Drive, 21 Petaluma, CA (Assessor's Parcel Number: 136-111-022), which has been improved with a building 22 ("Property"); and 23 WHEREAS, Landlord currently rents the portion of the Property to the Petaluma People 24 Services Center to provide services for Meals on Wheels and a Senior Cafe, to low-income 25 senior citizens in our community and their families and 26 WHEREAS, Tenant desires to offer their services and meals to the low income senior 27 community in Petaluma, and the Landlord desires to provide a location at which the Tenant 28 may offer such services, subject to the terms and conditions of the lease attached to and made 29 a part of this ordinance as Exhibit 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 and 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 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 PPSC, as Tenant, a copy of which is attached as Exhibit A. Ordinance No. 2530 N.C.S. Page 1 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 2611) day of January 2015. ADOPTED this 2nd day of February, 2015 by the following vote: Ayes: Albertson, Barrett, Mayor Glass, Healy, Kearney, King, Vice Mayor Miller Noes: None Abstain: None Absent: None David Glass, Mayor A TEST:APPRO�VfD AS 70 � ORM: Claire Cooper, CMC, City Cl k Eric W. Danly, City Aorney Ordinance No. 2530 N.C.S. Page 2 4 LEASE Exhibit A to Ordinance 5 This Commercial Lease Agreement (the "Lease") is entered into as of , 6 2015, by and between the City of Petaluma, a California charter city ("Landlord") and Petaluma 7 People Services Center, a California nonprofit public benefit corporation ("Tenant"). Landlord 8 and Tenant are hereinafter referred to individually as "Party" and collectively as "Parties." 9 RECITALS 10 A. Landlord owns in fee simple real property located at 211 Novak Drive, Petaluma, 11 CA (Assessor's Parcel Number: 136-111-022), which has been improved with a building 12 ("Property"). 13 B. Landlord currently leases a portion of the Property to Tenant, with the other 14 portion of the Property currently occupied by Landlord. 15 C. Currently, Tenant provides essential social and human services to the low income 16 senior community in Petaluma at the Property. 17 D. Tenant desires to offer their services and programs to low income seniors, and the 18 Landlord desires to provide a location at which the Tenant may offer such services, subject to 19 the terms 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 23 a. Subject to section l.b, Landlord hereby leases a portion of the Property to 24 Tenant in accordance with this provision, including both improved and unimproved areas of the 25 Property, as well as common areas, such as the driveways, parking facilities and pedestrian and 26 vehicular ingress, egress and travel ways, which are also used by Landlord , (the "Premises"), all 27 as depicted in Exhibit A attached hereto in accordance with the provisions of this Lease. 28 b. Based upon mutual agreement between Landlord and Tenant, from time 29 to time, the Landlord may occupy and/or use the Premises for Landlord's purposes. 30 2. TERM: The term of this Lease shall commence on March 2, 2015 31 ("Commencement Date") and continue through February 28, 2020, unless terminated sooner in 32 accordance with the provisions of this Lease (the "Rental Period"). The Parties agree to execute 33 and record a Memorandum of this Lease in the official records of Sonoma County. 34 3. RENT: In consideration of the fact that Tenant is providing valuable community 35 service, Tenant shall pay no rent for the use and occupancy of the Premises. 36 4. TRIPLE NET LEASE: This is a triple net lease to Landlord. It is the intent of the Parties 37 that the Rent shall be an absolutely net return to Landlord. Tenant shall pay all costs and 38 expenses relating to Tenant's occupancy of the Premises of any kind or nature whatsoever. 39 Such costs and expenses include, without limitation, all amounts attributable to, paid or incurred 40 in connection with Tenant's operation, repair, maintenance (whether interior or exterior) and Ordinance No. 2530 N.C.S. Page 3 management of the Premises; all taxes and assessments; insurance premiums; security; janitorial services; labor; costs of licenses, permits and inspections; and all other costs and expenses incurred or paid by Tenant with respect to the Premises. 1 5. USE: The premises shall be used for a Senior Caf6, Home delivered meals 5 program and senior activities as well as administrative offices for the services provided. 6 ("Use"). No other use may be conducted on the Premises other than the Use. Landlord 7 may treat any other use of the Premises by Lessee as an Event of Default. Permission 8 granted for the Use in this Lease does not constitute regulatory approval, and to the 9 extent that such Use is subject to any regulatory approval or permit, such Use shall not 10 commence until any and all applicable regulatory approvals and/or permits have been 11 granted. 12 6. COMPLIANCE WITH LAWS. Tenant shall procure and maintain all governmental 13 approvals, permits and licenses required for the lawful conduct of Tenant's permitted use of the 14 Premises and shall comply with all state, federal and local laws, rules and regulations in 15 connection with its use and occupancy of the Premises. Landlord may treat Tenant's failure to 16 comply with such state, federal and local laws as an Event of Default. 17 7. UTILITIES AND SERVICES: Tenant shall pay when due all charges or assessments for 18 telephone, water sewer, gas, heat, electricity, garbage disposal, trash disposal and all other 19 utilities and services that are supplied to the Premises. 20 8, MAINTENANCE AND REPAIR: Tenant shall maintain the Premises in a clean and 21 sanitary condition. Landlord shall have no obligation to make repairs to or perform maintenance 22 of the Premises. Without limiting the provisions in Section 4 of this Lease, Tenant shall pay all costs 23 and expenses attributable to or incurred in connection with Tenant's use and occupancy of the 24 Premises, including janitorial and landscape maintenance services. In the event that Tenant fails 25 to maintain or keep the Premises in good repair or if Tenant's acts or omissions result in a 26 nuisance or health or safety risk, at Landlord's option, Landlord may perform any such required 27 maintenance and repairs. Within ten (10) days of Tenant's receipt of Landlord's invoice 28 therefore, Tenant shall pay Landlord's costs incurred in connection with such repairs. 29 9. SECURITY: Tenant is responsible for providing its own security on the Premises as 30 Tenant deems necessary in its sole discretion. 31 10. STATUTORY NOTICE POSSESSORY INTEREST TAX, TAXES AND ASSESSMENTS: 32 Throughout the Term, Tenant shall pay prior to delinquency, all applicable real property loxes, 33 possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments 34 whether general or special, ordinary or extraordinary, foreseen or unforeseen, of any kind or 35 nature whatsoever pertaining to the Premises or a part thereof (collectively, "Impositions"). 36 Specifically, Tenant is advised that under California Revenue and Taxation Code Section 107.6, 37 execution of this Lease may create a possessory interest for Tenant subject to property taxation. 38 Tenant hereby agrees that if such possessory interest is created and is subject to property 39 taxation, Tenant shall be solely responsible for the payment of any property taxes levied on any 40 such interest. Upon request by Landlord, Tenant shall furnish, in a form satisfactory to Landlord, 41 evidence of payment prior to delinquency of all Impositions paid by Tenant. 42 11. AS -IS CONDITION OF PREMISES: Tenant is leasing the Premises in its "AS IS" 43 condition as such condition exists as of the Commencement Date. By executing this Lease, 44 Tenant acknowledges that it has had the opportunity to inspect the Premises and accepts the 45 Premises in the AS IS condition. Ordinance No, 2530 N.C.S. Page 4 1 12. FUTURE ALTERATIONS AND REPAIRS: Except as provided in this Section, Tenant 2 shall not make alterations to the Premises without the prior written consent of Landlord. Landlord 3 agrees that Tenant is entitled to make repairs as part of its normal maintenance and risk 4 management programs. 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 or Indemnitee's use of the Premises as outlined in Section 1. 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; (ii) 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. 32 15. NONDISCRIMINATION: Tenant hereby covenants by and for itself and its 33 successors and assigns, and all persons claiming under or through it, and this Lease is made and 34 accepted upon and subject to the conditions that there shall be no discrimination against or 35 segregation of any person or group of persons on any basis listed in subdivision (a) or (d) of 36 Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, 37 subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the 38 Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment 39 of the Premises nor shall Tenant or any person claiming under or through it establish or permit any 40 such practice or practices of discrimination or segregation with reference to the selection, 41 location, number, use or occupancy of tenants, subtenants or vendees in the Premises. 42 17. RIGHT OF ENTRY: To the maximum extent provided by law, Landlord shall have 43 the right to enter and to inspect the Premises to ensure compliance with this Lease at all 44 reasonable times during the term of this Lease, provided that the Tenant is given at least 24 45 (twenty-four) notice of any inspection. Notwithstanding the foregoing, in the event of an 46 emergency, Landlord shall have the right to enter, to inspect, and to undertake any repairs or 47 take other action as necessary to mitigate the emergency without notice. Tenant shall provide 48 Landlord with a key to all Tenant -furnished locks securing the Premises and/or Landlord shall 49 retain a key to any Landlord -furnished lock(s). Ordinance No. 2530 N.C.S. Page 5 1 18. PREVAILING WAGE. This Lease shall be subject to the requirements of the 2 California Prevailing Wage Law, California Labor Code Section 1720 et seq., and to the 3 extent applicable, Tenant shall comply with all applicable requirements of the California 4 Prevailing Wage Law, including, but not limited to, all applicable requirements contained 5 in Exhibit B, which is attached to and made a part of this Agreement. Tenant's 6 noncompliance with the applicable requirements of this section shall constitute an Event 7 of Default. Notwithstanding the foregoing, prior to undertaking any improvement, 8 alteration or maintenance, the Parties may agree in writing that the proposed 9 improvement, alternation or maintenance does not fall within the definition of public 10 works as defined in Labor Code section 1720, or alternatively, is otherwise exempt from 11 complying with Prevailing Wage Law. 12 19. SUBLETTING: Tenant shall not assign this Lease or sublet any portion of the 13 Premises without the prior written consent of Landlord. 14 20. DEFAULT: Tenant shall be in default of this Lease upon the occurrence of any of 15 the following ("Events of Default"): (i) the failure to pay any monetary obligation when due, (it) 16 the failure to obtain and maintain insurance required by this Lease, (iii) the voluntary or 17 involuntary transfer of all or any portion of Tenant's interest in the Premises without Landlord's 18 prior written consent, or (iv) a default in the performance of any term, provision, covenant or 19 agreement pursuant to this Lease. Upon the occurrence of an Event of Default, the non - 20 defaulting party shall deliver a notice to the non-performing party ("Notice of Default") stating 21 the nature of the obligation which such non-performing party has failed to perform, and stating 22 the applicable period of time, if any, permitted to cure the default. Failure to give, or delay in 23 giving, a Notice of Default shall not constitute a waiver of any obligation or covenant required 24 to be performed hereunder. 25 21. TERMINATION: REMEDIES 26 a. Termination for Cause: Upon the occurrence of any Event of Default, and 27 in addition to any and all other rights or remedies of Landlord hereunder and/or provided at law 28 or in equity, Landlord shall have the right to terminate this Lease and Tenant's possessory rights 29 hereunder in accordance with applicable law. No remedy specified in this Lease shall be 30 considered exclusive of any other remedy, but the some shall be cumulative. 31 b. Termination without Cause: Landlord may terminate this Lease at any time 32 for any reason after delivering Notice as defined in section 22 at least sixty (60) days in advance 33 of its intent to terminate the Lease. Tenant agrees to vacate the Premises within sixty (60) days of 34 the Notice of the intent to terminate the Lease being delivered and agrees to the Release as set 35 forth in Section 21.c. 36 C. Release for Termination without Cause: Upon termination of this 37 Lease, without cause, Tenant may be or may become eligible to receive compensation, 38 reimbursement, assistance, including, but not limited to, the fair market value of real and 39 personal property, loss of goodwill, loss of profits, actual and reasonable expenses for 40 moving a business, loss of tangible real property as a result of moving the business, 41 expenses incurred in searching for replacement site for the business, expenses to 42 reestablish at the new site, "in -lieu payments" and other such benefits (collectively, 43 "Benefits") under the California Relocation Assistance Act (Government Code, § 7260, et 44 sec.), Title 25 of the California Code of Regulations, Article 1, § 19 of the California 45 Constitution, the California Eminent Domain Law (Civil Procedure Code, § 1230.010, et 46 seq.) or other similar local, state, or federal statute, ordinance, regulation, rule, or 47 decisional law (collectively "Compensatory Laws"). Tenant further acknowledges that it 48 has received full and fair compensation of all Benefits Tenant is or might be or might Ordinance No, 2530 N.C.S. Page 6 15 16 17 18 19 20 21 77 23 24 25 become entitled to recover from Landlord as a result of, or in any way related to, the Premises, the execution of this Lease, and the subsequent expiration or termination of this Lease. Therefore, being fully informed of and understanding 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 22. 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 People Service Center (PPSC) 1500 Petaluma Blvd., So. Petaluma, CA 94952 Attention: Executive Director Telephone: (707)765-8488 Facsimile: (707) 765-8482 40 Either Party may change its address for the receipt of notices by giving written notice of 41 change to the other Party. Either Party may give personal notice to the other Party. 42 23. FAILURE TO VACATE: In the event that Tenant holds over, Landlord's shall have all 43 remedies as may be available to Landlord at law or in equity. In addition, Tenant shall 44 indemnify, defend (with counsel reasonably acceptable to Landlord) and hold harmless 45 Landlord and the City of Petaluma from all Losses resulting from Tenant's failure to vacate 46 pursuant to this Lease. This indemnity shall survive the expiration or termination of the Lease. Ordinance No. 2530 N.C.S. Page 7 1 24. DISPOSITION OF IMPROVEMENTS: Prior to the expiration or termination of this 2 Lease, Tenant shall (i) remove all personal equipment, improvements, fixtures and property 3 placed on the Premises by Tenant, (ii) repair any damage caused by said removal, and (iii) 4 restore the Premises to its condition on the Commencement Date, less normal wear and tear, 5 except as Landlord may otherwise approve in writing. Except as expressly provided herein, upon 6 the expiration or earlier termination of this Lease all existing structures and other improvements 7 on the Premises shall unconditionally be and become the sole property of Landlord, and Tenant 8 shall have no right to compensation therefore. In the event that Tenant does not remove its 9 personal property within thirty (30) days after Lease expiration or termination, Landlord, at its 10 option, may deem such property abandoned and either retain or dispose of it in accordance 11 with applicable law. 12 25. INDEPENDENT CONTRACTOR: This Lease shall not be construed or interpreted to 13 create a partnership or joint venture between Landlord and Tenant. 14 26. CORPORATE AUTHORITY: Each individual executing this Lease on Tenant's behalf 15 represents and warrants that he or she is duly authorized to execute and deliver this Lease on 16 Tenant's behalf and that this Lease is binding on Tenant in accordance with its terms. 17 27. SEVERABILITY: The determination that a provision of this Lease is illegal or 18 unenforceable shall not affect any other provision of this Lease. 19 28. BINDING CLAUSE: The provisions, covenants and conditions of this Lease shall 20 extend to, be binding upon and insure to the benefit of the heirs, executors, administrators, 21 successors and assigns of the respective Parties hereon. 22 29. SECTION HEADINGS: All section headings contained herein are for convenience 23 of reference only and are not intended to define or limit the scope of any provisions of this 24 Lease. 25 30. ESSENCE OF TIME: Time is of the essence for every provision, covenant and 26 condition of this Lease. 27 31. ENTIRE AGREEMENT: This Lease contains all the agreements of the parties hereto 28 and supersedes all prior negotiations and written agreements. There have been no 29 representations by Landlord or understandings made between Landlord and Tenant other than 30 those set forth in this Lease. 31 32. AMENDMENT: This Lease may only be modified or amended by a written 32 instrument duly executed by the Parties hereto. 33 IN WITNESS WHEREOF, this Lease has been executed by the Parties hereto as of the date 34 listed below. 35 SIGNATURES ON FOLLOWING PAGE. 36 Ordinance No. 2530 N.C.S. Page 8 TENANT Petaluma People Services Center By: P1Cr 4%YiI��C Eleee Idempel, Executive Director LANDLORD City of Petaluma By: John Brown. City \Manager Attest: By: Claire Cooper, City Clerk Approved as to Fonn: By: Eric W. Danly City Attorney Ordinance No, 2530 N.C.S. Page 9 EXHIBIT A TO LEASE Premises Ordinance No. 2530 N.C.S. Page 10 EXHIBIT B 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. B. 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. WAGES: 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 the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements: Ordinance No. 2530 N.C.S. Page 1 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 51 I . 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 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. 2530 N.C.S. Page 12