HomeMy WebLinkAboutOrdinance 2528 N.C.S. 02/02/2015EFFECTIVE DATE
OF ORDINANCE
March 5, 2015
ORDINANCE NO. 2528 N.C.S.
1 Introduced by Seconded by
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5 Gabe Kearney Kathy Miller
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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 A PORTION OF IMPROVED REAL PROPERTY(APN 019-210-012)
13 ("PREMISES"), 1500 PETALUMA BOULEVARD SOUTH, PETALUMA, CA.
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 Petaluma Boulevard
22 South, Petaluma, CA. (Assessor's Parcel Number: 019-210-012), which has been improved with a
23 building ("Property"); and
24 WHEREAS, Landlord currently rents half of the Property to the Committee on the
25 Shelterless for performance of homeless services and programs, the other half of the Property,
26 approximately 5,000 (five thousand) square feet, has been occupied by Tenant; and
27 WHEREAS, currently, Tenant provides essential social and human services to prevent
28 homelessness; tenant/landlord mediation; and rental assistance for the low income community
29 in Petaluma on the property; and
30 WHEREAS, Tenant desires to offer their services to the low income community in
31 Petaluma, and the Landlord desires to provide a location at which the Tenant may offer such
32 services, subject to the terms and conditions of the lease attached to and made a part of this
33 ordinance as Exhibit A; and
34 WHEREAS, the City Council finds this action qualifies for categorical exemption under the
35 California Environmental Quality Act (CEQA) pursuant to Title 14, Chapter 3 of the California
36 Code of Regulations (CEQA Guidelines), sections 15061, 15301 because the project involves
37 operation, repair, maintenance, permitting, leasing, licensing and minor alteration of an existing
38 facility involving negligible or no expansion of use beyond that existing at the time of the City's
39 determination, in that leasing to PPSC about half or 5,000 square feet of the City owned property
40 at 1500 Petaluma Boulevard South for the provision of social services programs pursuant to the
41 lease will not result in significant expansion of use of the property in terms of impacts on the
Ordinance No. 2528 N.C.S. Page 1
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.
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 261h 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
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TEST: APPROVED AS TO FORM:
Claire Cooper, CMC, City Clerk Eric W. Donly, City Attornby
Ordinance No. 2528 N.C.S. Page 2
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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
People Services Center, 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 1500 Petaluma Boulevard
11 South, Petaluma, CA. (Assessor's Parcel Number: 019-210-012), which has been improved with a
12 building ("Property").
13 B. Landlord currently rents half of the Property to the Committee on the Shelterless,
14 with the other half of the Property, approximately 5,000 (five thousand) square feet leased to
15 Tenant.
16 C. Currently, Tenant provides essential social and human services to the low income
17 community in Petaluma at Petaluma Boulevard South.
18 D. Tenant desires to offer their services and programs to low income families, and
19 the Landlord desires to provide a location at which the Tenant may offer such services, subject
20 to the terms and conditions herein.
21 NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
22 which are hereby acknowledged, the Parties agree as follows:
23 1. PREMISES: Landlord hereby leases the Property to Tenant in accordance with this
24 provision, including approximately half of the building, unimproved areas of the Property,
25 driveways, parking facilities, and pedestrian and vehicular ingress, egress and travel ways , (the
26 "Premises"), all as depicted in Exhibit A attached hereto in accordance with the provisions of
27 this Lease. Common and shared use facilities in and around the building on the Property are
28 included in the Premises subject to this Lease and leased non -exclusively to Tenant. Tenant's
29 obligations regarding the Premises pursuant to this Lease, including, but not limited to, Tenant's
30 use, maintenance and repair, indemnity and insurance obligations, apply to the entire Premises,
31 including the common and shared use facilities, and such Tenant obligations concerning
32 portions of the Premises leased non -exclusively to Tenant shall be joint and several with the
33 obligations of any other entity to whom portions of the Premises may be leased non -exclusively.
34 2. TERM: The term of this Lease shall commence on March 2, 2015
35 ("Commencement Date") and continue through April 30, 2021, unless terminated sooner in
36 accordance with the provisions of this Lease (the "Rental Period"), The Parties agree to execute
37 and record a Memorandum of this Lease in the official records of Sonoma County.
38 3. RENT: In consideration of the fact that PPSC is providing valuable community
39 service, Tenant shall pay annual rent for the period in the sum of $1.00 per year for the use and
40 occupancy of the Premises, due as of the Commencement Date and each anniversary thereof.
41 4. TRIPLE NET LEASE: This is a triple net lease to Landlord. It is the intent of the Parties
42 that the Rent shall be an absolutely net return to Landlord. Tenant shall pay all costs and
Ordinance No. 2528 N.C.S. Page 3
1 expenses relating to Tenant's occupancy of the Premises of any kind or nature whatsoever.
2 Such costs and expenses include, without limitation, all amounts attributable to, paid or incurred
3 in connection with Tenant's operation, repair, maintenance (whether interior or exterior) and
4 management of the Premises; all taxes and assessments; insurance premiums; security; janitorial
5 services; labor; costs of licenses, permits and inspections; and all other costs and expenses
6 incurred or paid by Tenant with respect to the Premises.
7 5. USE: The premises shall be used for Tenant's administrative offices and a
8 central site for social service programs including, but not limited to: in-home services for
9 seniors, youth and family counseling, drug and substance abuse prevention, job training
10 and placement for low income youth and adults, neighborhood youth corps projects
11 and countywide information for persons in need. ("Use"). No other use may be
12 conducted on the Premises other than the Use. Landlord may treat any other use of the
13 Premises by Lessee as an Event of Default. Permission granted for the Use in this Lease
14 does not constitute regulatory approval, and to the extent that such Use is subject to any
15 regulatory approval or permit, such Use shall not commence until any and all applicable
16 regulatory approvals and/or permits have been granted.
17 6. COMPLIANCE WITH LAWS. Tenant shall procure and maintain all governmental
18 approvals, permits and licenses required for the lawful conduct of Tenant's permitted use of the
19 Premises and shall comply with all state, federal and local laws, rules and regulations in
20 connection with its use and occupancy of the Premises. Landlord may treat Tenant's failure to
21 comply with such state, federal and local laws as an Event of Default.
22 7. UTILITIES AND SERVICES: Tenant shall pay when due all charges or assessments for
23 telephone, water sewer, gas, heat, electricity, garbage disposal, trash disposal and all other
24 utilities and services that are supplied to the Premises.
25 8. MAINTENANCE AND REPAIR: Tenant shall maintain the Premises in a clean and
26 sanitary condition. Landlord shall have no obligation to make repairs to or perform maintenance
27 of the Premises. Without limiting the provisions in Section 4 of this Lease, Tenant shall pay all costs
28 and expenses attributable to or incurred in connection with Tenant's use and occupancy of the
29 Premises, including janitorial and landscape maintenance services. In the event that Tenant fails
30 to maintain or keep the Premises in good repair or if Tenant's acts or omissions result in a
31 nuisance or health or safety risk, at Landlord's option, Landlord may perform any such required
32 maintenance and repairs. Within ten (10) days of Tenant's receipt of Landlord's invoice
33 therefore, Tenant shall pay Landlord's costs incurred in connection with such repairs.
34 9. SECURITY: Tenant is responsible for providing its own security on the Premises as
35 Tenant deems necessary in its sole discretion.
36 10. STATUTORY NOTICE POSSESSORY INTEREST TAX. TAXES AND ASSESSMENTS:
37 Throughout the Term, Tenant shall pay prior to delinquency, all applicable real property taxes,
38 possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments
39 whether general or special, ordinary or extraordinary, foreseen or unforeseen, of any kind or
40 nature whatsoever pertaining to the Premises or a part thereof (collectively, "Impositions").
41 Specifically, Tenant is advised that under California Revenue and Taxation Code Section 107.6,
42 execution of this Lease may create a possessory interest for Tenant subject to property taxation.
43 Tenant hereby agrees that if such possessory interest is created and is subject to property
44 taxation, Tenant shall be solely responsible for the payment of any property taxes levied on any
45 such interest. Upon request by Landlord, Tenant shall furnish, in a form satisfactory to Landlord,
46 evidence of payment prior to delinquency of all Impositions paid by Tenant.
Ordinance No. 2528 N.C.S. Page 4
I]. AS -IS CONDITION OF PREMISES: Tenant is leasing the Premises in its "AS IS"
condition as such condition exists as of the Commencement Date. By executing this Lease,
Tenant acknowledges that it has had the opportunity to inspect the Premises and accepts the
Premises in the AS IS condition.
12. FUTURE ALTERATIONS AND REPAIRS: Except as provided in this Section, Tenant
shall not make alterations to the Premises without the prior written consent of Landlord. Landlord
agrees that Tenant is entitled to make repairs as part of its normal maintenance and risk
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 . 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.
36 15. NONDISCRIMINATION: Tenant hereby covenants by and for itself and its
37 successors and assigns, and all persons claiming under or through it, and this Lease is made and
38 accepted upon and subject to the conditions that there shall be no discrimination against or
39 segregation of any person or group of persons on any basis listed in subdivision (a) or (d) of
40 Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
41 subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
42 Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment
43 of the Premises nor shall Tenant or any person claiming under or through it establish or permit any
44 such practice or practices of discrimination or segregation with reference to the selection,
45 location, number, use or occupancy of tenants, subtenants or vendees in the Premises.
46 17, RIGHT OF ENTRY: To the maximum extent provided by law, Landlord shall have
47 the right to enter and to inspect the Premises to ensure compliance with this Lease at all
48 reasonable times during the term of this Lease, provided that the Tenant is given at least 24
49 (twenty-four) notice of any inspection. Notwithstanding the foregoing, in the event of an
Ordinance No, 2528 N.C.S. Page 5
1 emergency, Landlord shall have the right to enter, to inspect, and to undertake any repairs or
2 take other action as necessary to mitigate the emergency without notice. Tenant shall provide
3 Landlord with a key to all Tenant -furnished locks securing the Premises and/or Landlord shall
4 retain a key to any Landlord -furnished lock(s).
5 18. PREVAILING WAGE. This Lease shall be subject to the requirements of the
6 California Prevailing Wage Law, California Labor Code Section 1720 of seq., and to the
7 extent applicable, Tenant shall comply with all applicable requirements of the California
8 Prevailing Wage Law, including, but not limited to, all applicable requirements contained
9 in Exhibit B, which is attached to and made a part of this Agreement. Tenant's
10 noncompliance with the applicable requirements of this section shall constitute an Event
11 of Default. Notwithstanding the foregoing, prior to undertaking any improvement,
12 alteration or maintenance, the Parties may agree in writing that the proposed
13 improvement, alternation or maintenance does not fall within the definition of public
14 works as defined in Labor Code section 1720, or alternatively, is otherwise exempt from
15 complying with Prevailing Wage Law.
16 19. SUBLETTING: Tenant shall not assign this Lease or sublet any portion of the
17 Premises without the prior written consent of Landlord.
18 20. DEFAULT: Tenant shall be in default of this Lease upon the occurrence of any of
19 the following ("Events of Default"): (i) the failure to pay any monetary obligation when due, (it)
20 the failure to obtain and maintain insurance required by this Lease, (iii) the voluntary or
21 involuntary transfer of all or any portion of Tenant's interest in the Premises without Landlord's
22 prior written consent, or (iv) a default in the performance of any term, provision, covenant or
23 agreement pursuant to this Lease. Upon the occurrence of an Event of Default, the non -
24 defaulting party shall deliver a notice to the non-performing party ("Notice of Default") stating
25 the nature of the obligation which such non-performing party has failed to perform, and stating
26 the applicable period of time, if any, permitted to cure the default. Failure to give, or delay in
27 giving, a Notice of Default shall not constitute a waiver of any obligation or covenant required
28 to be performed hereunder.
29 21. TERMINATION: REMEDIES.
30 a. Termination for Cause: Upon the occurrence of any Event of Default, and
31 in addition to any and all other rights or remedies of Landlord hereunder and/or
32 provided at law or in equity, Landlord shall have the right to terminate this Lease and
33 Tenant's possessory rights hereunder in accordance with applicable low. No remedy
34 specified in this Lease shall be considered exclusive of any other remedy, but the some
35 shall be cumulative.
36 b. Termination without Cause: Landlord may terminate this Lease at any time
37 for any reason after delivering Notice as defined in section 22 at least sixty (60) days in
38 advance of its intent to terminate the Lease. Tenant agrees to vacate the Premises
39 within sixty (60) days of the Notice of the intent to terminate the Lease being delivered
40 and agrees to the Release as set forth in Section 21.c.
41 C. Release for Termination without Cause: Upon termination of this
42 Lease, without cause, Tenant may be or may become eligible to receive
43 compensation, reimbursement, assistance, including, but not limited to, the fair
44 market value of real and personal property, loss of goodwill, loss of profits, actual
45 and reasonable expenses for moving a business, loss of tangible real property as
46 a result of moving the business, expenses incurred in searching for replacement
47 site for the business, expenses to reestablish at the new site, "in -lieu payments"
Ordinance No. 2528 N.C.S. Page 6
1 and other such benefits (collectively, "Benefits") under the California Relocation
2 Assistance Act (Government Code, § 7260, et sec.), Title 25 of the California
3 Code of Regulations, Article I, § 19 of the California Constitution, the California
4 Eminent Domain Law (Civil Procedure Code, § 1230.010, et seq.) or other similar
5 local, state, or federal statute, ordinance, regulation, rule, or decisional law
6 (collectively "Compensatory Laws"). Tenant further acknowledges that it has
7 received full and fair compensation of all Benefits Tenant is or might be or might
8 become entitled to recover from Landlord as a result of, or in any way related to,
9 the Premises, the execution of this Lease, and the subsequent expiration or
10 termination of this Lease. Therefore, being fully informed of and understanding
11 the acknowledgements made herein and of Tenant's rights or potential rights to
12 benefits under the Compensatory Laws, Tenant hereby expressly and
13 unconditionally waives, and releases Landlord from, any and all rights of Tenant
14 to claim, demand, sue for, or receive any Benefits which Tenant is or might be or
15 might become entitled to recover from Landlord as a result of, or in any way
16 related to the Premises, the execution of the Lease, and the subsequent
17 expiration of or termination of the Lease. The Landlord acknowledges and
18 agrees that the release and waiver set forth in this paragraph is material
19 consideration for Landlord entering into this Lease, and that but for this release
20 and waiver, Landlord would not have entered into this Lease. By releasing and
21 forever discharging the claims described herein, Lessee expressly waives any
22 rights under California Civil Code section 1542, which provides:
23 "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
24 THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
25 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
26 WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
27 AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
28
29 Tenant's Initials Landlord's Initials
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31 22. NOTICES: All notices shall be deemed given when made in writing and deposited
32 in the United States mail, certified, postage prepaid and addressed to such party the following
33 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: Petaluma People Service Center (PPSC)
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1500 Petaluma Blvd. South
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Petaluma, CA 94952
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Attention: Executive Director
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Telephone: (707) 765-8488
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Facsimile: (707) 765-8482
48 Either Party may change its address for the receipt of notices by giving written notice of
49 change to the other Party. Either Party may give personal notice to the other Party.
Ordinance No. 2528 N.C.S. Page 7
1 23. FAILURE TO VACATE: In the event that Tenant holds over, Landlord's shall have all
2 remedies as may be available to Landlord at law or in equity. In addition, Tenant shall
3 indemnify, defend (with counsel reasonably acceptable to Landlord) and hold harmless
4 Landlord and the City of Petaluma from all Losses resulting from Tenant's failure to vacate
5 pursuant to this Lease. This indemnity shall survive the expiration or termination of the Lease.
6 24. DISPOSITION OF IMPROVEMENTS: Prior to the expiration or termination of this
7 Lease, Tenant shall (i) remove all personal equipment, improvements, fixtures and property
8 placed on the Premises by Tenant, (ii) repair any damage caused by said removal, and (iii)
9 restore the Premises to its condition on the Commencement Date, less normal wear and tear,
10 except as Landlord may otherwise approve in writing. Except as expressly provided herein, upon
11 the expiration or earlier termination of this Lease all existing structures and other improvements
12 on the Premises shall unconditionally be and become the sole property of Landlord, and Tenant
13 shall have no right to compensation therefore. In the event that Tenant does not remove its
14 personal property within thirty (30) days after Lease expiration or termination, Landlord, at its
15 option, may deem such property abandoned and either retain or dispose of it in accordance
16 with applicable law.
17 25. INDEPENDENT CONTRACTOR: This Lease shall not be construed or interpreted to
18 create a partnership or joint venture between Landlord and Tenant.
19 26. CORPORATE AUTHORITY: Each individual executing this Lease on Tenant's behalf
20 represents and warrants that he or she is duly authorized to execute and deliver this Lease on
21 Tenant's behalf and that this Lease is binding on Tenant in accordance with its terms.
22 27. SEVERABILITY: The determination that a provision of this Lease is illegal or
23 unenforceable shall not affect any other provision of this Lease.
24 28. BINDING CLAUSE: The provisions, covenants and conditions of this Lease shall
25 extend to, be binding upon and insure to the benefit of the heirs, executors, administrators,
26 successors and assigns of the respective Parties hereon.
27 29. SECTION HEADINGS: All section headings contained herein are for convenience
28 of reference only and are not intended to define or limit the scope of any provisions of this
29 Lease.
30 30. ESSENCE OF TIME: Time is of the essence for every provision, covenant and
31 condition of this Lease.
32 31. ENTIRE AGREEMENT: This Lease contains all the agreements of the parties hereto
33 and supersedes all prior negotiations and written agreements. There have been no
34 representations by Landlord or understandings made between Landlord and Tenant other than
35 those set forth in this Lease.
36 32. AMENDMENT: This Lease may only be modified or amended by a written
37 instrument duly executed by the Parties hereto.
38 IN WITNESS WHEREOF, this Lease has been executed by the Parties hereto as of the date
39 listed below.
40
41 SIGNATURES ON FOLLOWING PAGE.
Ordinance No. 2528 N.C.S. Page 8
3
TENANT
Petaluma People Services Center
By: �o,, �ff ���p l
"e' L(' i�l t M
Elece Hempel, Executive Director
LANDLORD
City ol'Petaluma
By:
John Brown. City'Manager
Attest:
By:
Claire Cooper, City Clerk
Approved as to Form:
By:
Eric R'. Dimly
City Attorney
Ordinance No. 2528 N.C.S.
Page 9
EXHIBIT A TO LEASE
Premises
ENd S
Irl
Ordinance No. 2528 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.
B. 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. 2528 N.C.S. Page 11
2 1. The Agreement executed between the Consultant and the subconsultant for the
3 performance of part of the Services shall include a copy of the provisions of
4 California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
5 2. The Consultant shall monitor payment of the specified general prevailing rate of
6 per diem wages by the subconsultant by periodic review of the subconsultant's
7 certified payroll records.
8 3. Upon becoming aware of a subconsultant's failure to pay the specified
9 prevailing rate of wages, the Consultant shall diligently take corrective action to
10 halt or rectify the failure, including, but not limited to, retaining sufficient funds
11 due the subconsultant for performance of the Services.
12 4. Prior to making final payment to the subconsultant, the Consultant shall obtain an
13 affidavit signed under penalty of perjury from the subconsultant that the
14 subconsultant has paid the specified general prevailing rate of per diem wages
15 employees engaged in the performance of the Services and any amounts due
16 pursuant to California Labor Code Section 1813.
17
18 C. In accordance with California Labor Code Section 1776, the Consultant and each
19 subconsultant engaged in performance of the Services, shall keep accurate payroll
20 records showing the name, address, social security number, work classification, straight
21 time and overtime hours worked each day and week, and the actual per diem wages
22 paid to each journeyman, apprentice, worker, or other employee employed in
23 performance of the Services. Each payroll record shall contain or be verified by a written
24 declaration that it is made under penalty of perjury, stating both of the following:
25
26 1. The information contained in the payroll record is true and correct.
27 2. The employer has complied with the requirements of Sections 1771, 1811, and
28 1815 for any Services performed by the employer's employees on the public
29 works project.
51
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. 2528 N.C.S. Page 12