Daffodil Tyminski] October 17 demand [to appear before City Council] and has decided not to negotiate the repayment of fees and to continue with” the revocation hearings. Seldom is breach so openly stated in a letter. City attorney McEvoy is reminded that the City “shall cooperate” with the operators and “undertake such reasonable actions as may be appropriate to ensure this Agreement remains in full force and effect.” (Dev. Agmt. § 23(c)).
6.3 The City Breached the Development Agreements by Denying the Operators an Opportunity to Be Heard at the Review Hearing.
The City’s recent review hearing letters require the operators to submit “no later than ten days from the date of this Notice to confirm your appearance,” and if “we do not hear back from you by this date, we will assume you waive your right to present evidence at the hearing.” The conditional right to be heard at the hearing is a breach of the contractual promise that “at the time and place set for the review hearing, operator shall be given an opportunity to be heard.” (Dev. Agmt. § 19(d)). The right to be heard is at the time of the hearing, not before.
It is also noted that on November 14, 2023, Senior Planner Madrigal-Gonzalez received an email from the undersigned (Sebastian Rucci) stating he “wished to present the cannabis operator’s position [at the review hearing], preferably at a hearing before the city council.” One month later, on December 14, 2023, the undersigned emailed Senior Planner Madrigal-Gonzalez, transfer request forms (as she requested), adding our office as an additional point of contact for the seven cannabis operators. The email stated our office “intends to represent the cannabis operators positions before the City going forward.” On December 19, 2023, our office received a reply email stating that Philip Kfoury’s signature must be notarized; however, the transfer forms do not provide for notarized signatures.
On December 29, 2023, we received a letter from Senior Planner Madrigal-Gonzalez stating that the review hearing is scheduled for January 8, 2024; however, “as of today’s date, you have not confirmed your intent to appear or participate in the review hearing. Based on your failure to confirm your appearance at the review hearing, you have waiver your right to present evidence at and otherwise participate at the review hearings.” Seldom is an abuse so openly stated in a letter.
Our office represents the cannabis operators, and this does not require jumping through ad hoc hurdles, created to confuse and obfuscate the process. We notified the City we represent the operators, and we provided the requested form. Rather than putting the operators through unnecessary hurdles for refusing to pay disputed and illegal fees, the City should take a serious review of the many breaches identified in this Notice and move to correct its many breaches.
This is not just good business it is mandated by the development agreements.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 26
The City is using its demand for illegal fees to pressure the operators with revocation to get them to pay illegal fees, which they dispute. By failing to set annual review hearings, the City denied a forum for the operators to document their delays. The operator could not “compel [the yearly review] hearing” and the City agreed that “no implication will be made to operator’s detriment if a hearing is not in fact held.” (Dev. Agmt. § 19(a)).
City staff prevented any hearing before the City Council, and this allowed staff to set illegal fees without review. The City breached Section 19(d) by denying the operators “an opportunity to be heard” at the defective review hearing. The development agreements do not give the City unbridled power to discern a default. On the contrary, § 14 titled “Defaults” provides that the “party alleging [a] default or breach shall give the other party not less than thirty day notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured during any such thirty day period.”
7. THE CITY IS GIVEN NOTICE THAT THE DAMAGES FOR BREACH OF THE DEVELOPMENT AGREEMENTS ARE $26.4 MILLION.
“After notice and expiration of the thirty-day period, the other party to this Agreement, at its option, may institute legal proceedings pursuant to this Agreement.” (Dev. Agmt. § 14(a)).
Under the development agreements, the cannabis operators may “pursue any remedy at law or equity available for the breach of any provision” of the agreement including pursuing “damages from bad faith intentional acts, the grossly negligent or malicious acts of City and its officials, officers, agents, and employees.” (Dev. Agmt. § 14(a)).
Breach of the development agreement is established by proving (1) the existence of a contract, (2) cannabis operator’s performance or excuse for nonperformance, (3) breach by the City of Cudahy, and (4) damage to the cannabis operators as a result of the City of Cudahy’s breach. The City of Cudahy has demonstrated its intention not to be bound by the agreement.
It actively refused to cooperate and sought to have the cannabis operator’s rights revoked.
7.1 CONTRACT DAMAGES FOR BREACH OF DEVELOPMENT AGREEMENT.
The case of Mammoth Lakes Land Acquisition v. Town of Mammoth Lakes (2010), 191 Cal. App. 4th 435 is attached for your review. In that case a jury awarded $30 million for the City’s breach of a development agreement. In Mammoth Lakes the Town entered into a development agreement to make improvements to its airport and to build a hotel at the airport. (Id. at 440.) The “development agreement is an enforceable contract between the municipality and the developer.” (Id. at 442.)
In Mammoth Lakes, the Town was “claiming a willingness to move forward with the project” but Town officials “actively sought to undermine the developer’s rights under the contract.” (Id. at 466-67.) Cudahy similarly claims it is willing to move forward, but its officials, officers, agents and employees actively undermine the operator’s rights in the project.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 27
In Mammoth Lakes, the developer submitted an application for the hotel project which was placed on the planning commission agenda “with a recommendation from staff to deny the application.” (Id. at 447.) The Town “changed its priorities and no longer wanted the hotel project.” (Id. at 440.) “Town officials professed willingness to work with the developer to resolve the FAA issues. However, in private, the mood was not cooperative.” (Id. at 450.) Cudahy similarly claims it is willingness to move forward but is not cooperative.
In Mammoth Lakes, the hotel “made the development agreement economically feasible” for the developer. (Id. at 445.) The developer “requested assurances that the Town would proceed with the development agreement.” (Id. at 450.) The Town responded that the developer’s “need to resolve the FAA compliance issues as a prerequisite.” (Id.) The developer replied that it “appear to believe that it may freely disregard the express terms of the development agreement and withhold approvals and other cooperation required by that agreement to enable the developer to proceed.” (Id. at 450.) Cudahy similarly was asked to provide a full occupancy permit and responded it would provide a defective temporary 90-day permit. Cudahy similarly conditions opening on paying illegal fees, that violate the agreements.
In Mammoth Lakes, the agreement provided a procedure upon default and if “after delivery of written notice of default” the Town failed to cure the default, the developer could institute legal action against the Town. (Id. at 445.) The “developer served the Town with a notice of default under the development agreement. The notice demanded that the Town terminate its efforts inconsistent with the development agreement.” (Id. at 451.) The “developer demanded that the Town move forward with the hotel project as contemplated in the development agreement.” (Id. at 440.) Cudahy is similarly given notice of its default and demand to cure with provisions similar to those in Mammoth Lakes.
In Mammoth Lakes, the Town refused to cure its default and the developer filed a claim with for damages and “after the Town rejected the claim, the developer sued the Town, alleging a breach of contract.” (Id. at 452.) “Once the developer gave notice of default and the Town failed to cure the default” all that “remained was to determine whether the Town breached the development agreement and, if it did, what was the remedy.” (Id. at 455.) “The development agreement required the Town to act reasonably in moving the project along.” (Id.) In Mammoth Lakes, the “Town violated the development agreement by refusing to move forward with the hotel project” and the “remedy is a breach of contract action based on the Town’s executive decision not to move forward as required by a contract.” (Id. at 441.) “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties . . . as it existed at the time of contracting.” (Id. at 458.) “To recover on a cause of action for breach of contract, the developer must establish (1) the existence of a contract, (2) developer’s performance or excuse for nonperformance, (3) the Town’s breach, and (4) damage to developer as a result of the Town’s breach.” (Id. at 463.) January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 28
“The developer’s theory of breach, upon which it prevailed at trial, was that the Town expressly repudiated the development agreement by refusing to move forward on the contract without resolving” an issued not in their agreement. (Id. at 464.) The jury was instructed if the “Town clearly and positively indicated, by words or conduct, that it would not or could not meet a requirement in the contract, then the Town breached the contract.” (Id. at 463.) The jury found that “(1) the Town and the developer entered into a contract, (2) the developer met all, or substantially all, its obligations under the contract, (3) the Town failed to perform under the contract or added extra contractual conditions to its performance, (4) the developer did not waive the Town’s failure to perform, and (5) the Town’s failure to perform damaged the developer. The jury set the amount of damages at $30 million.” (Id. at 453.) “The developer’s complaint is not that the Town denied an application to build the hotel project. Instead, the complaint is that the Town refused to move forward on the hotel project.” (Id. at 456.) Having given the Town a notice of default “the developer was legally entitled to go forward with a breach of contract action.” (Id. at 457.) The Town raised “the argument that this was a land use decision instead of a matter of complying with the terms of the development agreement.” (Id. at 466.) This was not a land use issue, “it was an executive decision on the part of the Town to refuse to comply with the terms of the development agreement.” (Id. at 457.)
7.2 LOST PROFITS ARE USED FOR BREACH OF DEVELOPMENT AGREEMENT.
In Mammoth Lakes, the “breach was of the development agreement,” which “supported the $30 million damages award.” (Id. at 441-42.) “While claiming a willingness to move forward with the project, town officials actually refused to move forward and actively sought to undermine the developer’s rights under the contract.” (Id. at 466-67.) “The Town demonstrated its intention not to be bound by the development agreement. It actively refused to cooperate and sought to have the developer’s rights terminated.” (Id. at 468.) “Damages consisting of the loss of anticipated profits need not be established with certainty. It is sufficient that it be shown as a reasonable probability that the profits would have been earned except for the breach of the contract.” (Id. at 470.) The developer presented evidence “that it would have realized a $30 million profit on the hotel project if the Town had not breached the agreement.” (Id. at 470.) We conclude “the developer sustained $30 million in damages as a result of the Town’s breach of the development agreement.” (Id. at 476.) The actions by the City of Cudahy are far more explosive than the facts in Mammoth Lakes. Cudahy sought disputed fees as an issue in withholding development, and has expressly repudiated the development agreement in writing. Cudahy has even moved to expressly revoke the development agreement. Cudahy has even prevented the right to be heard at the hearing.
Cudahy appears to believe that it may freely disregard the express terms of the development agreement and withhold approvals and other cooperation required by the agreement.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 29
Cudahy’s actions directly undermine its contractual promises, and a breach of contract action is clear under the simple reading of Mammoth Lakes. The actions by the City of Cudahy, its employees, and consultants pale in comparison to the facts in Mammoth Lakes. The City is given notice that the lost profits from for its breach of the development agreements are conservatively estimated at $26.4 million.
8. OPERATORS GIVE NOTICE TO CITY OFFICIALS, OFFICERS, EMPLOYEES AND CONSULTANTS OF INDIVIDUAL LIABILITY UNDER CIVIL RICO.
The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961- 68, makes it unlawful for “any person employed by or associated” with any Civil RICO enterprise to “conduct or participate, directly or indirectly” in the RICO enterprise’s affairs through a pattern of racketeering activity (18 U.S.C. § 1962(c)).
Civil RICO liability requires the existence of an “enterprise” through which the illegal conduct occurs. An “enterprise” is defined broadly under RICO as “any individual, partnership, corporation, association, or other legal entity.” 18 U.S.C. § 1961(4). It is well-settled that a City may constitute a civil RICO enterprise. See U.S. v. Freeman (9th Cir. 1993) 6 F.3d 586, 596-97 (“government entity may constitute an enterprise within the meaning of RICO.”) Civil RICO has been approved in a land use context against city officials. See DeFalco v. Bernas (2d Cir. 2001) 244 F.3d 286 (city officials extorted plaintiff by blocking needed permits; civil RICO verdict upheld). However, the claims in Cudahy are garden variety RICO claims. See Sedima v. Imrex (1985) 473 U.S. 479 (civil RICO for fraud and breach of contract).
The RICO defendants consist of Cudahy officials, officers, employees, and consultants because they conducted Cudahy’s affairs “within the scope, or beyond the scope” of authority (Cedric Kushner v. King (2001) 533 U.S. 158, 166) and “participated in the operation or management” of the enterprise’s affairs. (Reves v. Ernst & Young (1993) 507 U.S. 170, 185.) Civil RICO prohibits conducting the affairs of an enterprise, the City of Cudahy, through a pattern of racketeering activity. (18 U.S.C. § 1961(5)). “Racketeering activity” is defined in 18 U.S.C. § 1961(1)(B) to include a slew of federal crimes, including extortion in violation of federal law (18 U.S.C. § 1951), and federal mail and wire fraud (18 U.S.C. §§ 1341, 1343).
8.1 Extortion Of Disputed Fees under Color of Official Right.
Extortion under federal law is a predicate act under RICO. See 18 U.S.C. § 1961(1)(B).
A person commits federal extortion by “obtaining of property from another, with his consent, January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 30
induced by fear, or under color of official right.” (18 U.S.C.§ 1951(b)(2)). The Supreme Court in a political protest case held that extortion did not have to “benefit the protesters financially” and “RICO contains no economic motive requirement.” (Nat’l Org. for Women. v. Scheidler (1994) 510 U.S. 249, 262). Extortion “in no way depends upon having a direct benefit conferred on the person who obtains the property.” (U.S. v. Green (1956) 350 U.S. 415, 420).
During the 68-month delay, Cudahy officials, officers, and employees demanded the operators pay the disputed fees, and in return, withheld permits, unless the disputed fees were paid. Cudahy officials, officers, employees, and consultants, imposed endless changes in violation of the City’s contractual promises 68 months earlier. The strategic delays forced the operators to undergo a five-year procedural gauntlet of ever-changing revisions and inspection criteria. The changes were fraught with delays and uncertainty.
Four years into the project, Cudahy officials, officers, and employees stepped up their demands regarding fees, when City Manager Noyola was hired, and during his tenure, the City placed the projects in default for not paying the fees. The City contacted the California Department of Cannabis Control and informed them the operators were not compliant with the City because their fees were outstanding. The State informed the operators their permit would not be renewed unless the issue with the City was resolved.
The City offered to remove the default status if the operators paid the disputed fees. After this did not produce payment of disputed fees, the City initiated revocation proceedings and offered to allow the facility to open if they paid all the disputed fees due. The City officials, officers, employees, and consultants, actions constitute extortion under the color of official right and constitute extortion under fear of economic loss, in violation of 18 U.S.C. § 1951.
After spending more than $10 million over five years, only one of seven facilities is open and only because it agreed to pay disputed fees under fear of economic harm. City Manager Noyola’s offer of a 90-day temporary occupancy permit in return for payment of disputed fees, is extortion by obtaining property from another, with his consent, induced by fear. The “term ‘fear’ may be of economic loss.” (Brokerage Concepts v. U.S. Healthcare (3d Cir. 1998) 140 F.3d 494, 503). Because City Manager Noyola sought fees under his official role as City Manager, these acts are also extortion by obtaining fees with consent “under color of official right.” (18 U.S.C. § 1951(b)(2).)
The retaliation by placing the operators in default, by refusing to allow them to continue construction while in default, and by initiating defective revocation hearings, and agreeing to halt these retaliations if the disputed and illegal fees were paid constitute extortion under color of official right and extortion under fear of economic loss in violation of 18 U.S.C. § 1951.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 31
The scheme to exact unlawful fees, identified in the text message by Building Inspector Morales to City Manager Noyola, seeks to secure payment of disputed fees, by informing the State that the operators are in default, and as the text message shows this was set in motion to “get them to the table now.” The threat by City Manager Noyola in his text demanding $200,000 for overdue fees is extortion under threat of economic harm, and extortion under color of official right. These demands are unlawful and extortion in violation of 18 U.S.C. § 1951.
8.2 Mail, Wire, and Telephone Used in Scheme to Defraud.
Civil RICO includes violation of federal mail and wire fraud (18 U.S.C. §§ 1341, 1343) as predicates that constitute racketeering activity. See 18 U.S.C. § 1961(1)(B). The mail fraud statute prohibits the use of the mail to execute any “scheme or artifice to defraud.” 18 U.S.C. § 1341. “Innocent mailings -- ones that contain no false information-- may” supply the mail element even if mailing is routine. (Sedima v. Imrex (1985) 473 U.S. 479, 715).
The Supreme Court approved mail and wire fraud for “presenting inflated bills, cheating [plaintiff] out of a portion of its proceeds by collecting for non-existent expenses.” (Sedima v. Imrex (1985) 473 U.S. 479, 484). Cudahy officials submitted countless invoices seeking illegal fees, these invoices also inflated fees due.
Cudahy officials, officers, employees, and consultants committed many acts of mail and wire fraud, by demanding disputed fees, and offering 90-day conditional approvals if the fees were current. The Court in Pelfresne v. Village of Rosemont (ND Ill. 1998) 22 F. Supp. 2d 756, 763 approved predicate acts of mail fraud based on a letter “stating that the Village was refusing to process his permit application” and a second letter “stating that the Village intended to file eminent domain to acquire his property.”
Cudahy officials, officers, employees, and consultants used retaliation to advance their scheme to exact unlawful fees from the cannabis operators. The scheme was intended to defraud the operators of their money and involved calculated efforts of abusive power to induce the operators to give up their money, or face delay, denial, retaliation, and possible bankruptcy.
During the past 68 months Cudahy officials, officers, employees, and consultants submitted countless documents by mail, and by email, sufficient to support mail and wire fraud.
8.3 Actions by Individual Actors Supports a Pattern of Racketeering Activity.
The heart of a civil RICO complaint is the allegation of a pattern of racketeering activity which requires at least two acts of racketeering activity within ten years. (18 U.S.C. § 1961(5)).
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 32
“To prove a pattern of racketeering activity a plaintiff . . . must show the racketeering predicates are related” and they either extended over “a substantial period of time” or “pose a threat of continued criminal activity.” (H.J. Inc. v. North. Bell Tel. (1989) 492 U.S. 229, 239, 242.) The widespread extortion activity spans 68 months and makes a proper closed-ended RICO violation. Cudahy officials, officers, employees and consultants used extortion to demand unlawful fees and committed many acts of extortion under color of official right, and under threat of economic harm against the cannabis operators. Besides the “multiple extortionate acts against the seven cannabis operators, there are many episodes of extortion against other cannabis operators under similar circumstances. Some of whom have already been forced out of business. The predicate act of extortion is related to the scheme to take unlawful fees, or face delay, denial, retaliation or possible bankruptcy.
Cudahy officials, officers, employees, and consultants predicate acts of mail and wire fraud are related to the scheme to take unlawful exactions, or face delay, denial, or retaliation.
The extortion is widespread and spans five years. The extortion against the seven cannabis operators spans seven separate entities over a 68 month period. Cudahy officials, officers, employees, and consultants have no intention of stopping the racketeering activity which “by its nature project[ed] into the future with a threat of repetition,’ thus satisfying RICO’s pattern requirement.” (H.J. Inc. v. North. Bell Tel. (1989) 492 U.S. 229, at 241.)
8.4 Individual City Actors Have Also Engaged in a Civil RICO Conspiracy.
The RICO conspiracy statute, § 1962(d), makes it “unlawful for any person to conspire to violate” § 1962(c). The conspirators “may divide up the work, yet each is responsible for the acts of each other.” (Salinas v. U.S. (1997) 522 U.S. 52 at 63-64). “If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators.” (Id. at 64).
The RICO conspiracy statute, 18 U.S.C. § 1962(d), makes it “unlawful for any person to conspire to violate” § 1962(c). Therefore, under § 1962(d) it is unlawful to conspire to conduct the affairs of an enterprise through a pattern of racketeering activity. In Salinas v. U.S., 522 U.S. 52 (1997) the Supreme Court held that there “is no requirement of some overt act or specific act” in § 1962(d). Id. at 63. A “conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense.” Id. at 63. The conspirators “may divide up the work, yet each is responsible for the acts of each other.” Id. at 63-64. “If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators.” Id.at 64.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 33
Cudahy officials, officers, employees, and consultants conspired and agreed with each other to engage in the conduct stated, they conspired and agreed to aid each other in the commission of the acts of extortion, or of an attempt to commit extortion, and agreed to conduct or participate in the affairs of the City and agreed to commit acts of extortion, as their regular way of conducting the City’s affairs.
Cudahy officials, officers, employees, and consultants conspired, planned and schemed to use the City as a racketeering enterprise to extort money from the cannabis operators and conspired to conduct the affairs of the City using acts of extortion by demanding illegal fees as a condition of project opening.
Cudahy officials, officers, employees, and consultants combined, conspired and confederated with each other to commit” the racketeering activity, the objectives of the conspiracy is identified herein, and the many meetings between them and the operators provide sufficient evidence of the conspiracy, and that they were part of a fraudulent scheme. There is more than enough to satisfy the civil RICO conspiracy statute, 18 U.S.C. § 1962(d).
8.5 Civil RICO Claims Support Actions for Damages to the Operator’s Business.
Each act identified herein by Cudahy officials, officers, employees, and consultants was the proximate cause of the lost profits and the “lost business” was foreseeable. In (Sedima v.
Imrex (1985) 473 U.S. 479 the Supreme Court held that no special “racketeering injury” must be proved for a civil RICO plaintiff to recover beyond the ordinary harm suffered by the victims of the individual predicate crimes. (Sedima, 473 U.S. at 495).
Cudahy officials, officers, employees, and consultants engaged in a pattern of racketeering activity which injured the cannabis operators business, giving the operators claims under 18 U.S.C. § 1964(c) for damages. Cudahy officials, officers, employees, and consultants engaged in a pattern of racketeering activity that injured the operators in their business or property, giving the operators a claim for damages under 18 U.S.C. § 1964(c). See Pelfresne v. Village of Rosemont (ND Ill. 1998) 22 F. Supp. 2d 756, 765 (“filing of unjustified eminent domain proceedings has produced an immediate and concrete decrease in the value of their property.”)
Cudahy officials, officers, employees, and consultants are given notice that the damages for violating civil RICO are conservatively estimated at $26.4 million, and this sum will trebled to $79.2 million.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 34
9. CITY IS GIVEN NOTICE OF OPTION TO PROCEED UNDER THE DISPUTED FEE PROCEDURE AND POST A BOND OF PURPORTED FEES DUE.
Pursuant to Gov. Code § 66020, the cannabis operators protest imposition of the illegal fees. “Any party may protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project” by “meeting both of the following requirements:
(1) Tendering any required payment in full or providing satisfactory evidence of arrangements to pay the fee when due . . . (2) Serving written notice on the governing body of the entity, which notice shall contain: (A) A statement that the required payment is tendered or will be tendered when due, or that any conditions which have been imposed are provided for or satisfied, under protest. (B) A statement informing the governing body of the factual elements of the dispute and the legal theory forming the basis for the protest.” (Cal Gov Code § 66020, subd. (a)).
“Any party on whom a fee . . . or other exaction has been imposed, the payment or performance of which is required to obtain governmental approval of a . . . development project, may protest the establishment or imposition of the fee, tax” or “other exaction as provided in Section 66020.” (Cal Gov Code § 66021(a)).
“If the court finds in favor of the plaintiff in any action or proceeding” under this section “the court shall direct the local agency to refund the unlawful portion of the payment, with interest.” (Cal Gov Code § 66020(e)). If the court grants a judgment to a plaintiff “the court shall direct the local agency to refund the unlawful portion of the payment, plus interest. . .” (Cal Gov Code § 66020(f)(1)). The California Supreme Court noted in one case that:
“Subdivision (a)(1) of that section permits the protesting party either to pay the amount in full or ‘provid[e] satisfactory evidence of arrangements to pay the fee when due … .’ Obviously, if the protesting party does the latter, there will be no payment to repay or exaction to return. This does not make section 66020 self-canceling whenever the developer provides the required satisfactory evidence and does not make an actual payment. It just means that a remedy will not include repayment of a payment that was never made.” (Sterling Park, L.P. v. City of Palo Alto (2013), 57 Cal. 4th 1193, 1208.) The operators are prepared to bond the fees under protest. This allows them to proceed with construction. The operators seek documentation of the fee which the City seeks and they will post a bond, if they disagree with the fee, the will present a fee to the Court for approval.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 35
10. CITY IS GIVEN NOTICE TO CURE THE PLETHORA OF DEFAULTS AND OPPORTUNITY TO CURE THE SAME WITHIN 30 DAYS.
The development agreements provide in Section 14, titled “Defaults and Remedies,” that the “party alleging [a] default or breach shall give the other party not less than thirty-day notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured during any such thirty day period . . .” (Dev. Agmt. § 14(a)). “Subject to extensions of time by mutual consent in writing, failure to delay by either party to perform any term or provision of this Agreement beyond a reasonable notice and cure period shall constitute a default.” (Dev. Agmt. § 14(a)). “After notice and expiration of the thirty-day period, the other party to this Agreement, at its option, may institute legal proceedings pursuant to this Agreement.” (Id.)
11. CONCLUSION: CITY’S MUST CORRECT ITS PLETHORA OF BREACHES WITHIN 30 DAYS OR FACE LAWSUITS FOR DAMAGES AND CIVIL RICO.
It should be readily from the above that the operators’ payments to date amount to $3/4 million makes them current. It is time for the City to cure the plethora of defects identified in this Notice. The City can cure these defects by undertaking the following acts:
(1). The City must remove all non-operating fees if the facility is not open. (2). The City must waive all fees during the 15-month pandemic period. (3). The City must waive all fees during any delays caused by the City. (4). The City must waive all fees when the City was in default under the agreements. (5). The City must issue full, not temporary, occupancy permits. (6). The City must withdraw the defective review hearing with the hearing officer. (7). The City must expedite permits and proceed with the expedited opening of the facilities.
The operators will of course pay the operating fee, once they are operating, they will pay the community benefit fee, and cost recovery fee as they agreed. Nothing in this Notice modifies the development agreement, the operators are interpreting it exactly as they signed it.
This Notice seeks to bring the City’s actions into compliance with its contractual promises. The City must cure its default identified above. The City must “ensure this agreement remains in full force and effect.” (Dev. Agmt. § 23(c)). The City must correct the many violations identified in this Notice. The cannabis operators have worked on trying to open for 68 months. They have endured many violations, and enough is enough, and then some.
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 36
I am available anytime to discuss the contents of this Notice, or make a full presentation before the City Council, or meet with City officials or City representatives.
Respectfully submitted,
LAW OFFICE OF SEBASTIAN RUCCI, P.C.
Sebastian Rucci
cc: cannabis operators
January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 37
TABLE OF CONTENTS
1. INTRODUCTION OF CITY’S BREACH OF DEVELOPMENT AGREEMENTS . 2
2. RELEVANT FACTS IDENTIFYING THE CITY’S CONTRACTUAL PROMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 Agreements Guarantee Many Rights Including that the Project is Vested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 The City Agreed to Proceed in Good Faith and Implemented the Agreement in Accordance with its Terms and to the Fullest Extent Permitted by Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3 Approved Plans Were Incorporate in the Agreements and the City Contractually Agreed Redesigning Approved Plans is Considered a Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.4 City Agreed to Expedite Permits and Contractually Promised that Delays by the City in Expediting Permits is Considered a Default. . . . . . . . . . . . . . . . . . . . . 8
2.5 Construction Procedures Were Incorporated in the Agreements and the City Agreed Any Construction Delays by the City is Considered a Default . . . . . . 8
2.6 Force Majure Delays Require an Extension for Local, State or National Emergencies and an Extension for Any Default by the City . . . . . . . . . . . . . . 9
2.7 The City Breached the Development Agreements by Placing the Operators in Default Status and Agreeing to Only Issue Conditional 90-Day Occupancy Permits, Only Renewable if Disputed and Illegal Fees are Current. . . . . . . . 10
2.8 City Correspondence Confirms the Scheme to Extort Illegal Fees, the City Contacted the State and Reported them in Default, the City Would Only Issue Temporary Operating Permits and Placing the Operators in Default. . . . . . . 12
2.9 Three months ago, the City Demanded Immediate Payment of $200,000 From the Only Operator to Open Or Face Immediate Revocation . . . . . . . . . . . . . . . . 15 January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 38
3. THE CITY BREACHED THE AGREEMENTS BY REFUSING TO WAIVE FEES DURING THE PANDEMIC CLOSURE AS PROMISED IN SECTION 23(i). . . . 17
4. CITY BREACHED THE AGREEMENTS BY FAILING TO EXPEDITE APPROVALS AND BY SEEKING FEES FOR DELAYS CAUSED BY THE CITY . . . . . . . . . . 17
5. CITY BREACHED THE AGREEMENTS BY DEMANDING NON-OPERATING FEES AS SHOWN BY THE PARTIES INTENT AT THE TIME OF SIGNING. . 18
5.1 Councilman Hernandez’s Recollection of the Intention of the Non-Operating Fees at the Time of Approval Confirms Non-Operating Feed Do Not Apply . . . . 19
5.2 The Operators Recollection of the Intention of the Non-Operating Fees at the Time of Contracting Confirms Non-Operating Fees Do Not Apply . . . . . . . 20
5.3 Non-Operating Fees are Illegal Taxes (No Voter Approval) . . . . . . . . . . . . . 21
5.4 Non-Operating Fee/Tax are Illegal Impact Fees (No Findings). . . . . . . . . . . 22
5.5 The City’s Interpretation the Non-Operating Fees Apply to Operators Progressing to Open, but Unable to Open Is a Breach of the Agreement . . . . . . . . . . . . . 23
6. THE CITY BREACHED THE AGREEMENTS BY PREVENTING THE YEARLY REVIEW HEARINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.1 The City Breached the Development Agreements by Failing to Hold Yearly Review Hearings Breached which Prevented the Operators From Presenting Documentation of the City’s Force Majeure Delays . . . . . . . . . . . . . . . . . . . 24
6.2 The City Breached the Development Agreements by Setting Review Hearing Before a Hearing Officer Instead of the City Council . . . . . . . . . . . . . . . . . . 25
6.3 The City Breached the Development Agreements by Denying the Operators an Opportunity to Be Heard at the Review Hearing . . . . . . . . . . . . . . . . . . . . . . 26
7. THE CITY IS GIVEN NOTICE THAT THE DAMAGES FOR BREACH OF THE DEVELOPMENT AGREEMENTS ARE $26.4 MILLION . . . . . . . . . . . . . . . . . . . 27
7.1 Contract Damages for Breach of Development Agreement . . . . . . . . . . . . . . 27 January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 39
7.2 Lost Profits Are Used for Breach of Development Agreement . . . . . . . . . . . 29
8. OPERATORS GIVE NOTICE TO CITY OFFICIALS, OFFICERS, EMPLOYEES AND CONSULTANTS OF INDIVIDUAL LIABILITY UNDER CIVIL RICO . . 30
8.1 Extortion Of Disputed Fees under Color of Official Right . . . . . . . . . . . . . . 31
8.2 Mail, Wire, and Telephone Used in Scheme to Defraud . . . . . . . . . . . . . . . . 32
8.3 Actions by Individual Actors Supports a Pattern of Racketeering Activity. . 33
8.4 Individual City Actors Have Also Engaged in a Civil RICO Conspiracy . . . 33
8.5 Civil RICO Claims Support Actions for Damages to the Operator’s Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9. CITY IS GIVEN NOTICE OF OPTION TO PROCEED UNDER THE DISPUTED FEE PROCEDURE AND POST A BOND OF PURPORTED FEES DUE. . . . . . . . . . . 35
10. CITY IS GIVEN NOTICE TO CURE THE PLETHORA OF DEFAULTS AND OPPORTUNITY TO CURE THE SAME WITHIN 30 DAYS . . . . . . . . . . . . . . . . 36
11. CONCLUSION: CITY’S MUST CORRECT ITS PLETHORA OF BREACHES WITHIN 30 DAYS OR FACE LAWSUITS FOR DAMAGES AND CIVIL RICO 36 January 5, 2024 Letter to City of Cudahy from the Seven 4916 Cecilia Street Cannabis Operators . . . . PAGE 40
LAW OFFICE OF SEBASTIAN RUCCI, P.C.
16400 Pacific Coast Highway, Suite 212
Huntington Beach, CA 92649
Phone: (562) 901-0199
Fax: (562) 249-6910
[email protected]
February 5, 2024
Mayor, Jose R. Gonzalez ([email protected])
Vice Mayor, Elizabeth Alcantar ([email protected]) Councilmember, Daisy Lomeli ([email protected]) Councilmember, Martin U. Fuentes ([email protected]) Councilmember, Dr. Cynthia Gonzalez ([email protected]) City Manager, Alfonso Noyola ([email protected]) Finance Director, Joshua Calhoun, CPA ([email protected]) Senior Planner, Cecilia Madrigal-Gonzalez ([email protected]) City Clerk, Richard Iglesias ([email protected]) Special Council, Glenn Ward Calsada ([email protected]) City Attorney Paloma Perez-McEvoy ([email protected]) City Attorney Stephanie Arechida ([email protected]) Community Development Director, Juan Arauz ([email protected]) Building Official, Raul Diaz ([email protected]) RE: (1) Notice that City of Cudahy Failed to Cure Breach of Development Agreements (Dev.
Agmt. § 14); (2) Notice that the City and Individuals Failed to Respond to Claims of Damages (Gov. Code §§ 905, 945.4); (3) Notice that City of Cudahy Failed to Respond to Notice to Proceed with Bond of Illegal Fees under Protest (Gov. Code § 66020).
Dear Mayor, Vice Mayor, Council Members, City Officials, and City Representatives:
We represent seven cannabis operators with development agreements at 4916 Cecilia Street. On January 5, 2024, we sent a 36-page NOTICE TO CURE ITS BREACH OF DEVELOPMENT AGREEMENTS to fourteen city officials, officers, employees, and consultants. No response has been received from the City to our demand to cure its many breaches, or to our demand for the City to pay damages, or to our demand for the City to proceed under protest by posting a bond for illegal fees. We wanted to cure these defects without litigation. However, we have gone through all efforts to do so, and since our efforts have been rejected, we will pursue litigation in court.
1. The City RECEIVED and REJECTED the 30-Day Notice to Cure the Plethora of Defaults and Breaches of the Development Agreement (Dev. Agmt. § 14).
The 36-page Notice identified many breaches by the City with the development agreements. (Notice at pgs. 6-26). The City was given 30 days to cure pursuant to the City’s contractual agreement in § 14 of the development agreements. (Notice at pgs. 2, 36). The Notice offered “to discuss the contents of this Notice, or make a full presentation before the City Council, or meet with City officials or City representatives.” (Notice at p. 36).
The 30-day cure period has expired, and pursuant to the development agreement, “After notice and expiration of the thirty-day period,” the cannabis operators “may institute legal proceedings pursuant to this Agreement.” (Dev. Agmt. § 14(a)). We have complied with all the efforts to have the City cure the many breaches identified in the Notice. Because the 30-day notice lapsed without a response from the City, we will pursue litigation as permitted by the development agreement.
While waiting for a response to cure the defects during the 30-day notice period, on February 1, 2024, at 5:46 pm, we received an email from City Manager Noyola seeking to illegally revoke the defective and illegal 90-day occupancy permit for Go Cudahy for failure to pay all fees. This defect was expressly identified in the Notice on pages 10 and 11. It is clear to us that the City seeks to continue its harassment. The February 1, 2024 letter is an example of multiple breaches of the development agreement and is a continuation of the Civil RICO violations we identified in the Notice on pages 30-35.
On February 1, 2024, upon receiving the letter from City Manager Noyola, we recognized that the City rejected our efforts for the City to cure its many breaches of the development agreements. Nonetheless, we waited 30 days as we agreed in the Notice and as mandated by the development agreement. At no point did the City or its legal counsel respond to the many detailed breaches listed in the 36-page notice.
Accordingly, we give notice that we view the City’s failure to proceed in good faith to cure its many breaches and the letter dated February 1, 2024, as a clear statement that the City will not cure its breaches and will instead continue to retaliate against cannabis operators for failing to pay illegal fees. We have complied with all the efforts to cure and give notice that we will pursue litigation in court and expect to file the a federal and state complaints this week.
February 5, 2024 Notice Letter to City on Failure to Cure and Upcoming Litigation . . . . . . . . . . . . . . . . . PAGE 2
2. The City RECEIVED and REJECTED the Claim for $26.4 Million Damages for Breach of the Development Agreements (Gov. Code §§ 905, 945.4).
Gov. Code § 905 requires that “claims for money or damages against local public entities” shall be presented to the City as a condition of filing a lawsuit against the City. Gov.
Code § 945.4 provides “no suit for money or damages may be brought against a public entity . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.” The 36-page Notice identified specific breaches of the development agreement (Notice at pgs. 6-26) and explained that these breaches would support a claim for lost profits (Notice at pgs. 27-30) and stated: “The City is given notice that the lost profits from for its breach of the development agreements are conservatively estimated at $26.4 million.” (Notice at p. 30). A copy of the appellate decision in Mammoth Lakes Land Acquisition v. Town of Mammoth Lakes (2010), 191 Cal. App. 4th 435 decision was submitted with the Notice to fully explain the damages for lost profits under a development agreement. Our demands were never responded to by the City, or its legal counsel, and we consider this a rejection of our claim.
3. City Officials, Officers, Employees, and Consultants RECEIVED and REJECTED the Civil RICO Claims for Damages of $26.4 Million (Gov. Code §§ 905, 945.4).
The 36-page Notice also identified that the demand for illegal fees supports Civil RICO claims. (Notice at pgs. 30-35). The Notice identified that the actions of city officials, officers, employees, and consultants support claims for extortion under the color of official right and extortion under fear of economic loss. (Notice at pgs. 30-31). The Notice identified that the demand for illegal fees are predicate acts of mail and wire fraud. (Notice at p. 32).
The City officials, officers, employees, and consultants were provided the following Notice: “Cudahy officials, officers, employees, and consultants are notified that the damages for violating civil RICO are conservatively estimated at $26.4 million, and this sum will be trebled to $79.2 million.” (Notice at p. 34). Our demands were never responded to, and we consider a rejection of our claims.
February 5, 2024 Notice Letter to City on Failure to Cure and Upcoming Litigation . . . . . . . . . . . . . . . . . PAGE 3
4. The City RECEIVED and REJECTED that Demand to Post a Bond and Proceed Under Protest on the Disputed Fees (Gov. Code § § 66020, 66021).
According to Government Code § 66020, the cannabis operators are permitted to “protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project” by “providing satisfactory evidence of arrangements to pay the fee when due” and by serving written notice on the City that conditions are imposed (agreement to post a bond) in an effort to “protest” the illegal fees. (Gov Code § 66020(a)). Under Government Code § 66021, the cannabis operators “on whom a fee . . . or other exaction has been imposed, the payment or performance of which is required to obtain governmental approval of a . . . development project, may protest the establishment or imposition of the fee, tax” or “other exaction as provided in § 66020.” (Gov Code § 66021(a)).
Notice was provided that the cannabis operators seek to “proceed under protest and seek an arrangement to pay the disputed fees, under protest, by posting a bond, under Gov. Code § 66020.” (Notice at p. 2). The Notice stated: The operators are prepared to bond the fees under protest. This allows them to proceed with construction. The operators seek documentation of the total fees that the City seeks, and the cannabis operators agreed to post a bond for this sum.
If the operators disagreed with the City's sum, they stated they would present a claim to the Court for approval. (Notice at p. 35). Surprisingly, the City did not want to address the fees with a bond and did not respond to our request to proceed under protest. This is an option that the City did not have, and the City's silence violates the cannabis operators’ rights under Gov. Code §§ 66020, 66021.
5. The City Rejected Our 30-Day Notice to Cure, Our Demand for Damages, and Our Demand to Proceed Under Protest By Posting a Bond of the Fees. We Have Complied with all Notices and Will Proceed with Litigation.
The development agreement notified the City and its employees of its contractual promises “shall survive beyond the terms of the present Council members that this Agreement will serve to bind the City and future Councils to the obligations hereby undertaken.” (Dev.
Agmt. Recital M). The development agreement also notified the City employees and officials that “nothing contained [in the development agreement] shall modify or abridge the operator’s rights or remedies (including its rights for damages, if any) resulting from bad faith intentional acts, the grossly negligent or malicious acts of the City and its officials, officers, agents, and employees.” (Dev. Agmt. § 14(a)).
February 5, 2024 Notice Letter to City on Failure to Cure and Upcoming Litigation . . . . . . . . . . . . . . . . . PAGE 4
Under Section 14 of the development agreement, the operators gave the City notice of its “default” and “breach” of the agreements, specifying “the nature of the alleged default and the manner in which said default may be satisfactorily cured.” (Dev. Agmt. § 14(a)). The City’s “failure” to cure within 30 days “shall constitute a default.” (Id.) “After notice and expiration” of the 30 days to cure, the cannabis operators “may institute legal proceedings.” (Id.) We made every effort to give the City detailed notice to cure. Having been rebuffed by the City with its silence, we will proceed with litigation. We also provided a detailed demand for damages. (Gov. Code §§ 905, 945.4). We view the City’s silence to our 36-page Notice to cure and the City manager's February 1, 2024 letter as a rejection of our damage claims. We will accordingly proceed with litigation.
This week, we will file a complaint against the City in state court seeking $26.4 million in damages for breach of the development agreements. The state lawsuit will also seek damages for the City’s failure to comply with the cannabis operators’ rights to bond the illegal fees and proceed under protest. The state lawsuit will also seek to invalidate the operating fees as an illegal tax and illegal impact fees (Notice at pgs. 21-23). The state lawsuit will also seek damages for civil rights violations of the cannabis operators’ rights to due process and equal protection. Lastly, we will seek injunctive relief to stop the retaliation identified in the 36-page Notice and repeated in the recent letter on February 1, 2024.
Besides the state lawsuit against the City, we will file a federal lawsuit seeking civil RICO damages of $26.4 million (trebled to $79.2 million) against city manager Alfonso Noyola, vice mayor Elizabeth Alcantar, councilmembers Daisy Lomeli, Martin Fuentes, and Cynthia Gonzalez, finance director Joshua Calhoun, senior planner Cecilia Madrigal-Gonzalez, and building official Raul Diaz.
On February 1, 2024, the City manager informed us he intended to proceed with the retaliation, even after all the violations were identified in great detail. Instead of reaching out to resolve the apparent breaches and damages to the cannabis operators, who have been waiting 68 months to open after spending $10 million, the City, its officials, and employees have decided to continue retaliating. We have complied with all the efforts to cure and provided detailed notice of our demand for damages (Gov. Code §§ 905, 945.4) and to proceed under protest by posting a bond of the Illegal fees (Gov. Code § 66020).
February 5, 2024 Notice Letter to City on Failure to Cure and Upcoming Litigation . . . . . . . . . . . . . . . . . PAGE 5
Our efforts to have the City cure its numerous breaches have been unsuccessful. After 68 months, the city, its officials, and its employees have refused to allow the cannabis operators to open. We will file two lawsuits this week for damages and to force the City to comply with its contractual promises in the development agreements.
Respectfully submitted,
LAW OFFICE OF SEBASTIAN RUCCI, P.C.
Sebastian Rucci
cc: cannabis operators
February 5, 2024 Notice Letter to City on Failure to Cure and Upcoming Litigation . . . . . . . . . . . . . . . . . PAGE 6
Attachment L
Attachment MPage 3888 of 4584
Attachment NPage 3899 of 4584
“Serving The People "Sirviendo A La Comunidad"
Staff Report
06/04/2024 Page 1 of 2
STAFF REPORT
Date: June 4, 2024
To: Honorable Mayor/Chair and City Council/Agency Members From: From: Alfonso Noyola, City Manager/Executive Director By: Daniela Trujillo, Administrative Analyst
Subject: Approval of First Amendment to Professional Services Agreement with SWA Group, Inc. for Geotechnical Services for Site 3 and Site 4 of the Los Angeles River Improvement Project
RECOMMENDATION
The City Council is requested to approve the First Amendment to Professional Services Agreement (PSA) with SWA Group, Inc. for Geotechnical Services for Site 3 and Site 4 of the Los Angeles River Improvement Project in a fixed sum of $24,680.
BACKGROUND
1. On June 21, 2022, the City approved a sub-recipient agreement with CalTrans after securing funds from the Clean California Local Grant Program.
2. On February 27, 2023 the City issued an RFP to solicit design engineering services for this project.
3. On May 2, 2023, a Professional Services Agreement was awarded to SWA Group, Inc. for the Design Phase Engineering Services of the Los Angeles River Improvement Project.
ANALYSIS
The Los Angeles River Improvement Project is a citywide beautification project that focuses on four City sites. Site three and site four require geotechnical services. SWA has been requested to engage Geocon West Inc. for geotechnical services pertaining to Site 3 (Clara Bridge Slopes) and Site 4 (Otis Avenue Pocket Park). The scope of services shall include:
Clara Bridge Slopes (Site 3):
1. Field Investigation
Item Number
14A
“Serving The People "Sirviendo A La Comunidad"
Staff Report
06/04/2024 Page 2 of 2
2. Agronomic Testing
3. Laboratory Testing
4. Report Preparation
Otis Avenue Pocket Park (Site 4):
1. Field investigation
2. Laboratory Testing
3. Report Preparation
CONCLUSION
The City recommends approving the First Amendment to the Professional Services Agreement with SWA Group, Inc. for Geotechnical Services in a fixed sum of $24,680.
FINANCIAL IMPACT
The fee for these services shall be provided for the fixed sum of $24,680. This additional service cost has been allocated through the Clean California Grant.
STRATEGIC PLAN CORRELATION
Goal E City Infrastructure and Service Delivery
1. Complete the Capital Improvement Plan, which anticipates the capital needs of Cudahy over a five-year period.
ATTACHMENTS
A. Professional Services Agreement between the City of Cudahy and SWA Group, Inc.
B. SWA Group, Inc. Add Service Request for Professional Services
FIRST AMENDMENT
TO PROFESSIONAL SERVICES AGREEMENT
(Parties: City of Cudahy and SWA Group, Inc.)
(Engagement: Design Phase Engineering Services)
THIS FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (hereinafter, “Amendment”) to that certain agreement entitled, “Design Phase Engineering Services” and dated May 2, 2023 (hereinafter, the “Master Agreement”), is hereby made and entered into this ____ day of ______ (hereinafter, “Effective Date”) by and between the City of Cudahy, a municipal corporation (hereinafter, “City”) and SWA Group, Inc., (hereinafter, “Consultant”). For purposes of this Amendment, the capitalized term “Parties” shall be a collective reference to both City and Consultant. The capitalized term “Party” may refer to either City of Consultant, interchangeably as appropriate.
RECITALS
This Amendment is made and entered into with respect to the following facts:
WHEREAS, on May 2, 2023, the Parties executed and entered into the Professional Services Agreement, Exhibit “A”, to provide Design Phase Engineering Services for the Los Angeles River Area Improvement Project for the City; and WHEREAS, the Parties wish to amend the Scope of Work to provide additional services set forth in Exhibit “B”; and
WHEREAS, the amendment for the Scope of Work will also require an increase in the Not-to-Exceed Sum of the Master Agreement in the amount of TWENTY-FOUR THOUSAND SIX HUNDRED EIGHTY ($24,680).
NOW, THEREFORE, in consideration of the mutual agreement contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
SECTION 1. Section 1.1 of the Master Agreement is hereby amended to include geotechnical services for site 3 and site 4 of the Los Angeles River Area Improvement Project.
SECTION 2. The Not-to-Exceed Sum as set in section 1.3 (B) of the Master Agreement is hereby increased an additional TWENTY-FOUR THOUSAND SIX HUNDRED EIGHTY ($24,680) for a new Not-to-Exceed Sum of FIVE HUNDRED SIXTYONE THOUSAND TWO HUNDRED FIFTY ($561,250).
SECTION 3. Except as otherwise set forth in this Amendment, the Master Agreement shall remain binding, controlling, and in full force effect. The Amendment and Master Agreement including exhibits shall constitute the entire, complete, final, and Attachment APage 3903 of 4584
exclusive expression of the Parties with respect to the matters addressed in both documents.
SECTION 4. The provisions of this Amendment shall be deemed a part of the Master Agreement and except, as otherwise provided under this Amendment, the Master Agreement and all provisions contained therein shall remain binding and enforceable. In the event of any conflict or inconsistency between the provisions of this Amendment and the provisions of the Master Agreement, the provisions of this Amendment shall control, but only in so far as such provisions conflict with the Master Agreement and no further.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed on the day and year first appearing above.
CITY OF CUDAHY:
By:
Alfonso Noyola, ICMA-CM
City Manager
Date:
SWA GROUP, INC.:
By:
Gerdo Aquino
Co-CEO / Principal
Date:
APPROVED AS TO FORM:
By:
Stephanie Arechiga
City Attorney
Date:
EXHIBIT A
Master Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT
(SWA Group, Inc. - Design Phase Engineering Services )
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 2nd day of May, 2023 (hereinafter, the “Effective Date”), by and between the CITY OF CUDAHY, a municipal corporation (“CITY”) and SWA GROUP, INC. (hereinafter, “CONSULTANT”). For the purposes of this Agreement CITY and CONSULTANT may be referred to collectively by the capitalized term “Parties.” The capitalized term “Party” may refer to CITY or CONSULTANT interchangeably.
WHEREAS, CITY wishes to engage CONSULTANT to provide the following specialized services: design phase engineering for the preparation of plan, specifications, and estimates for Cudahy Los Angeles river area improvement project; and
WHEREAS, CITY’s in-house personnel is presently unable to perform the specialized services and tasks contemplated under this Agreement; and
WHEREAS, CONSULTANT possesses the specialized training, skill, expertise and experience required to perform the services contemplated under this Agreement; and WHEREAS, CONSULTANT agrees to perform the various services and tasks set forth under this Agreement subject to the terms and conditions set forth herein; and NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:
I.
ENGAGEMENT TERMS
1.1 SCOPE OF SERVICES: Subject to the terms and conditions set forth in this Agreement and all exhibits attached and incorporated hereto, CONSULTANT agrees to perform the services and tasks set forth in Exhibit “A” (hereinafter referred to as the “Scope of Services”). CONSULTANT further agrees to furnish to CITY all labor, materials, tools, supplies, equipment, services, tasks and incidental and customary work necessary to competently perform and timely complete the services and tasks set forth in the Scope of Services. For the purposes of this Agreement the aforementioned services and tasks set forth in the Scope of Services shall hereinafter be referred to generally by the capitalized term “Work.”
1.2 TERM: This Agreement shall have a term of commencing from May 2, 2023 to June 30, 2024 unless CITY issues written notice of its intent to extend the term of this agreement. Nothing in this Section shall operate to prohibit or otherwise restrict the CITY’s ability to terminate this Agreement at any time for convenience or for cause.
1.3 COMPENSATION:
A. CONSULTANT shall perform the various services and tasks set forth in the Scope of Services in accordance with the compensation schedule which is attached and incorporated hereto as Exhibit "B" (hereinafter, the “Approved Rate Schedule”).
B. Section 1.3(A) notwithstanding, CONSULTANT’s total compensation during the Term of this Agreement or any extension term shall not exceed the budgeted aggregate sum of $536,570 (hereinafter, the “Not-to-Exceed Sum”), unless such added expenditure is first approved by the CITY acting in consultation with the Superintendent and the Director of Fiscal Services. In the event CONSULTANT’s charges are projected to exceed the Not-to-Exceed Sum prior to the expiration of the Term or any single extension term, CITY may suspend CONSULTANT’s performance pending CITY approval of any anticipated expenditures in excess of the Not-to-Exceed Sum or any other CITY-approved amendment to the compensation terms of this Agreement.
1.4 PAYMENT OF COMPENSATION: The Not-to-Exceed Sum will be paid to CONSULTANT in monthly increments as the Work is completed. Following the conclusion of each calendar month, CONSULTANT will submit to CITY an itemized invoice indicating the services performed and tasks completed during the recently concluded calendar month, including services and tasks performed and the reimbursable out-of-pocket expenses incurred. If the amount of CONSULTANT’s monthly compensation is a function of hours worked by CONSULTANT’s personnel, the invoice should indicate the number of hours worked in the recently concluded calendar month, the persons responsible for performing the Work, the rate of compensation at which such services and tasks were performed, the subtotal for each task and service performed and a grand total for all services performed. Within thirty (30) calendar days of receipt of each invoice, CITY will notify CONSULTANT in writing of any disputed amounts included in the invoice. Within forty-five (45) calendar days of receipt of each invoice, CITY will pay all undisputed amounts included on the invoice.
CITY will not withhold applicable taxes or other authorized deductions from payments made to CONSULTANT.
1.5 ACCOUNTING RECORDS: CONSULTANT shall maintain complete and accurate records with respect to all matters covered under this Agreement for a period of three (3) years after the expiration or termination of this Agreement. CITY shall have the right to access and examine such records, without charge, during normal business hours. CITY shall further have the right to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.
1.6 ABANDONMENT BY CONSULTANT: In the event CONSULTANT ceases to perform the Work agreed to under this Agreement or otherwise abandons the undertaking contemplated herein prior to the expiration of this Agreement or prior to completion of any or all tasks set forth in the Scope of Services, CONSULTANT shall deliver to CITY immediately and without delay, all materials, records and other work product prepared or obtained by CONSULTANT in the performance of this Agreement. Furthermore, CONSULTANT shall only be compensated for the reasonable value of the services, tasks and other work performed up to the time of cessation or abandonment, less a deduction for any damages, costs or additional expenses which CITY may incur as a result of CONSULTANT’s cessation or abandonment.
II.
PERFORMANCE OF AGREEMENT
2.1 CITY’S REPRESENTATIVES: The CITY hereby designates the Public Works Director, Aaron Hernandez-Torres, (hereinafter, the “CITY Representatives”) to act as its representatives for the performance of this Agreement. The Superintendent shall be the chief CITY Representative. The CITY Representatives or their designee shall act on behalf of the CITY for all purposes under this Agreement. CONSULTANT shall not accept directions or orders from any person other than the CITY Representatives or their designee.
2.2 CONSULTANT REPRESENTATIVE: CONSULTANT hereby designates Gerdo Aquino, CoCEO / Principal to act as its representative for the performance of this Agreement (hereinafter, “CONSULTANT Representative”). CONSULTANT Representative shall have full authority to represent and act on behalf of the CONSULTANT for all purposes under this Agreement.
CONSULTANT Representative or his designee shall supervise and direct the performance of the Work, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Agreement. Notice to the CONSULTANT Representative shall constitute notice to CONSULTANT.
COORDINATION OF SERVICE; CONFORMANCE WITH REQUIREMENTS: CONSULTANT
2.3 agrees to work closely with CITY staff in the performance of the Work and this Agreement and shall be available to CITY staff and the CITY Representatives at all reasonable times. All work prepared by CONSULTANT shall be subject to inspection and approval by CITY Representatives or their designees.
2.4 STANDARD OF CARE; PERFORMANCE OF EMPLOYEES: CONSULTANT represents, acknowledges and agrees to the following:
A. CONSULTANT shall perform all Work skillfully, competently and to the highest standards of CONSULTANT’s profession;
B. CONSULTANT shall perform all Work in a manner reasonably satisfactory to the CITY; C. CONSULTANT shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.); D. CONSULTANT understands the nature and scope of the Work to be performed under this Agreement as well as any and all schedules of performance; E. All of CONSULTANT’s employees and agents possess sufficient skill, knowledge, training and experience to perform those services and tasks assigned to them by CONSULTANT; and
F. All of CONSULTANT’s employees and agents (including but not limited subcontractors and subconsultants) possess all licenses, permits, certificates, qualifications and approvals of whatever nature that are legally required to perform the tasks and services contemplated under this Agreement and all such licenses, permits, certificates, qualifications and approvals shall be maintained throughout the term of this Agreement and made available to CITY for copying and inspection. The Parties acknowledge and agree that CONSULTANT shall perform, at CONSULTANT’s own cost and expense and
without any reimbursement from CITY, any services necessary to correct any errors or omissions caused by CONSULTANT’s failure to comply with the standard of care set forth under this Section or by any like failure on the part of CONSULTANT’s employees, agents, contractors, subcontractors and subconsultants. Such effort by CONSULTANT to correct any errors or omissions shall be commenced immediately upon their discovery by either Party and shall be completed within seven (7) calendars days from the date of discovery or such other extended period of time authorized by the CITY Representatives in writing and in their sole and absolute discretion. The Parties acknowledge and agree that CITY’s acceptance of any work performed by CONSULTANT or on CONSULTANT’s behalf shall not constitute a release of any deficiency or delay in performance. The Parties further acknowledge, understand and agree that CITY has relied upon the foregoing representations of CONSULTANT, including but not limited to the representation that CONSULTANT possesses the skills, training, knowledge and experience necessary to perform the Work skillfully, competently and to the highest standards of CONSULTANT’s profession.
2.5 ASSIGNMENT: The skills, training, knowledge and experience of CONSULTANT are material to CITY’s willingness to enter into this Agreement. Accordingly, CITY has an interest in the qualifications and capabilities of the person(s) who will perform the services and tasks to be undertaken by CONSULTANT or on behalf of CONSULTANT in the performance of this Agreement. In recognition of this interest, CONSULTANT agrees that it shall not assign or transfer, either directly or indirectly or by operation of law, this Agreement or the performance of any of CONSULTANT’s duties or obligations under this Agreement without the prior written consent of the CITY. In the absence of CITY’s prior written consent, any attempted assignment or transfer shall be ineffective, null and void and shall constitute a material breach of this Agreement.
2.6 CONTROL AND PAYMENT OF SUBORDINATES; INDEPENDENT CONTRACTOR: The Work shall be performed by CONSULTANT or under CONSULTANT’s strict supervision. CONSULTANT will determine the means, methods and details of performing the Work subject to the requirements of this Agreement. CITY retains CONSULTANT on an independent contractor basis and not as an employee. CONSULTANT reserves the right to perform similar or different services for other principals during the term of this Agreement, provided such work does not unduly interfere with CONSULTANT’s competent and timely performance of the Work contemplated under this Agreement and provided the performance of such services does not result in the unauthorized disclosure of CITY’s confidential or proprietary information. Any additional personnel performing the Work under this Agreement on behalf of CONSULTANT are not employees of CITY and shall at all times be under CONSULTANT’s exclusive direction and control. CONSULTANT shall pay all wages, salaries and other amounts due such personnel and shall assume responsibility for all benefits, payroll taxes, Social Security and Medicare payments and the like. CONSULTANT shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation insurance and the like.
2.7 REMOVAL OF EMPLOYEES OR AGENTS: If any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants is determined by the CITY Representatives to be uncooperative, incompetent, a threat to the adequate or timely performance of the tasks assigned to CONSULTANT, a threat to persons or property, or if any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants fail or refuse to perform the Work in a manner acceptable to the CITY, such officer, employee, agent, contractor, subcontractor or subconsultant shall be promptly removed by CONSULTANT and shall not be re-assigned to perform any of the Work.
2.8 COMPLIANCE WITH LAWS: CONSULTANT shall keep itself informed of and in compliance with all applicable federal, State or local laws to the extent such laws control or otherwise govern the
performance of the Work. CONSULTANT’s compliance with applicable laws shall include without limitation compliance with all applicable Cal/OSHA requirements.
2.9 NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition.
2.10 INDEPENDENT CONTRACTOR STATUS: The Parties acknowledge, understand and agree that CONSULTANT and all persons retained or employed by CONSULTANT are, and shall at all times remain, wholly independent contractors and are not officials, officers, employees, departments or subdivisions of CITY. CONSULTANT shall be solely responsible for the negligent acts and/or omissions of its employees, agents, contractors, subcontractors and subconsultants.
CONSULTANT and all persons retained or employed by CONSULTANT shall have no authority, express or implied, to bind CITY in any manner, nor to incur any obligation, debt or liability of any kind on behalf of, or against, CITY, whether by contract or otherwise, unless such authority is expressly conferred to CONSULTANT under this Agreement or is otherwise expressly conferred by CITY in writing.
III.
INSURANCE
3.1 DUTY TO PROCURE AND MAINTAIN INSURANCE: Prior to the beginning of and throughout the duration of the Work, CONSULTANT will procure and maintain polices of insurance that meet the requirements and specifications set forth under this Article. CONSULTANT shall procure and maintain the following insurance coverage, at its own expense:
A. Commercial General Liability Insurance: CONSULTANT shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent.
Such CGL Coverage shall have minimum limits of no less than Two Million Dollars ($2,000,000.00) per occurrence and limit shall apply separately in the general aggregate for bodily injury, personal injury, property damage, operations, products and completed operations, and contractual liability. See insurance requirements attachment for details.
B. Automobile Liability Insurance: CONSULTANT shall procure and maintain Automobile Liability Insurance as broad as Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). Such Automobile Liability Insurance shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury and property damage.
C. Workers’ Compensation Insurance/ Employer’s Liability Insurance: A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both CONSULTANT and CITY against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by CONSULTANT in the course of carrying out the Work contemplated in this Agreement.
D. Errors & Omissions Insurance: For the full term of this Agreement and for a period of three (3) years thereafter, CONSULTANT shall procure and maintain Errors and Omissions Liability Insurance appropriate to CONSULTANT’s profession. Such coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per occurrence and shall be endorsed to include contractual liability.
3.2 ADDITIONAL INSURED REQUIREMENTS: The CGL Coverage and the Automobile Liability Insurance shall contain an endorsement naming the CITY and CITY’s elected and appointed
officials, officers, employees, agents and volunteers as additional insureds.
3.3 REQUIRED CARRIER RATING: All varieties of insurance required under this Agreement shall be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance shall be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. CITY may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide. As to Workers’ Compensation Insurance/ Employer’s Liability Insurance, the CITY Representatives are authorized to authorize lower ratings than those set forth in this Section.
3.4 PRIMACY OF CONSULTANT’S INSURANCE: All polices of insurance provided by CONSULTANT shall be primary to any coverage available to CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
3.5 WAIVER OF SUBROGATION: All insurance coverage provided pursuant to this Agreement shall not prohibit CONSULTANT or CONSULTANT’s officers, employees, agents, subcontractors or subconsultants from waiving the right of subrogation prior to a loss. CONSULTANT hereby waives all rights of subrogation against CITY.
3.6 VERIFICATION OF COVERAGE: CONSULTANT acknowledges, understands and agrees, that CITY’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding CITY’s financial well-being and, indirectly, the collective well-being of the residents of the CITY. Accordingly, CONSULTANT warrants, represents and agrees that its shall furnish CITY with original certificates of insurance and endorsements evidencing the coverage required under this Article on forms satisfactory to CITY in its sole and absolute discretion. The certificates of insurance and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the CITY if requested. All certificates of insurance and endorsements shall be received and approved by CITY as a condition precedent to CONSULTANT’s commencement of any work or any of the Work. Upon CITY’s written request, CONSULTANT shall also provide CITY with certified copies of all required insurance policies and endorsements.
IV.
INDEMNIFICATION
4.1 The Parties agree that CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers (hereinafter, the “CITY Indemnitees”) should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the CITY Indemnitees with the fullest protection possible under the law. CONSULTANT acknowledges that CITY would not enter into this Agreement in the absence of CONSULTANT’s commitment to indemnify, defend and protect CITY as set forth herein.
4.2 To the fullest extent permitted by law, CONSULTANT shall indemnify, hold harmless and defend the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONSULTANT’s performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole negligence or willful misconduct of the CITY.
4.3 CITY shall have the right to offset against the amount of any compensation due CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’s failure to pay CITY promptly any indemnification arising under this Article and related to CONSULTANT’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.
The obligations of CONSULTANT under this Article will not be limited by the provisions of any workers’ compensation act or similar act. CONSULTANT expressly waives its statutory immunity under such statutes or laws as to CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers.
4.4 CONSULTANT agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Article from each and every subcontractor or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of this Agreement. In the event CONSULTANT fails to obtain such indemnity obligations from others as required herein, CONSULTANT agrees to be fully responsible and indemnify, hold harmless and defend CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of CONSULTANT’s subcontractors or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of CITY’s choice.
4.5 CITY does not, and shall not, waive any rights that it may possess against CONSULTANT because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.
4.6 This Article and all provisions contained herein (including but not limited to the duty to indemnify, defend and hold free and harmless) shall survive the termination or normal expiration of this Agreement and is in addition to any other rights or remedies which the CITY may have at law or in equity.
V.
TERMINATION
5.1 TERMINATION WITHOUT CAUSE: CITY may terminate this Agreement at any time for convenience and without cause by giving CONSULTANT a minimum of five (5) calendar days prior written notice of CITY’s intent to terminate this Agreement. Upon such termination for convenience, CONSULTANT shall be compensated only for those services and tasks which have been performed by CONSULTANT up to the effective date of the termination. CONSULTANT may not terminate this Agreement except for cause as provided under Section 5.2, below. If this Agreement is terminated as provided herein, CITY may require CONSULTANT to provide all finished or unfinished Documents and Data, as defined in Section 7.1 below, and other information of any kind prepared by CONSULTANT in connection with the performance of the Work.
CONSULTANT shall be required to provide such Documents and Data within fifteen (15) calendar days of CITY’s written request. No actual or asserted breach of this Agreement on the part of CITY pursuant to Section 5.2, below, shall operate to prohibit or otherwise restrict CITY’s ability to terminate this Agreement for convenience as provided under this Section.
5.2 EVENTS OF DEFAULT; BREACH OF AGREEMENT:
A. In the event either Party fails to perform any duty, obligation, service or task set forth under this Agreement (or fails to timely perform or properly perform any such duty, obligation,
service or task set forth under this Agreement), an event of default (hereinafter, “Event of Default”) shall occur. For all Events of Default, the Party alleging an Event of Default shall give written notice to the defaulting Party (hereinafter referred to as a “Default Notice”) which shall specify: (i) the nature of the Event of Default; (ii) the action required to cure the Event of Default; (iii) a date by which the Event of Default shall be cured, which shall not be less than the applicable cure period set forth under Sections 5.2.B and 5.2C below or if a cure is not reasonably possible within the applicable cure period, to begin such cure and diligently prosecute such cure to completion. The Event of Default shall constitute a breach of this Agreement if the defaulting Party fails to cure the Event of Default within the applicable cure period or any extended cure period allowed under this Agreement.
B. CONSULTANT shall cure the following Events of Defaults within the following time periods:
i. Within three (3) business days of CITY’s issuance of a Default Notice for any failure of CONSULTANT to timely provide CITY or CITY’s employees or agents with any information and/or written reports, documentation or work product which CONSULTANT is obligated to provide to CITY or CITY’s employees or agents under this Agreement. Prior to the expiration of the 3-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 3-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2 B.i. that exceeds seven (7) calendar days from the end of the initial 3- day cure period; or
ii. Within fourteen (14) calendar days of CITY’s issuance of a Default Notice for any other Event of Default under this Agreement. Prior to the expiration of the 14-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 14-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2B.ii that exceeds thirty (30) calendar days from the end of the initial 14-day cure period.
In addition to any other failure on the part of CONSULTANT to perform any duty, obligation, service or task set forth under this Agreement (or the failure to timely perform or properly perform any such duty, obligation, service or task), an Event of Default on the part of CONSULTANT shall include, but shall not be limited to the following: (i) CONSULTANT’s refusal or failure to perform any of the services or tasks called for under the Scope of Services; (ii) CONSULTANT’s failure to fulfill or perform its obligations under this Agreement within the specified time or if no time is specified, within a reasonable time; (iii) CONSULTANT’s and/or its employees’ disregard or violation of any federal, state, local law, rule, procedure or regulation; (iv) the initiation of proceedings under any bankruptcy, insolvency, receivership, reorganization, or similar legislation as relates to CONSULTANT, whether voluntary of involuntary; (v) CONSULTANT’s refusal or failure to perform or observe any covenant, condition, obligation or provision of this Agreement; and/or (vii) CITY’s discovery that a statement representation or warranty by CONSULTANT relating to this Agreement is false, misleading or erroneous in any material respect.
C. CITY shall cure any Event of Default asserted by CONSULTANT within forty-five (45) calendar days of CONSULTANT’s issuance of a Default Notice, unless the Event of Default cannot reasonably be cured within the 45-day cure period. Prior to the expiration of the 45-day cure period, CITY may submit a written request for additional time to cure the Event of Default upon a showing that CITY has commenced its efforts to cure the Event of Default
and that the Event of Default cannot be reasonably cured within the 45-day cure period.
The foregoing notwithstanding, an Event of Default dealing with CITY’s failure to timely pay any undisputed sums to CONSULTANT as provided under Section 1.4, above, shall be cured by CITY within five (5) calendar days from the date of CONSULTANT’s Default Notice to CITY.
D. CITY, in its sole and absolute discretion, may also immediately suspend CONSULTANT’s performance under this Agreement pending CONSULTANT’s cure of any Event of Default by giving CONSULTANT written notice of CITY’s intent to suspend CONSULTANT’s performance (hereinafter, a “Suspension Notice”). CITY may issue the Suspension Notice at any time upon the occurrence of an Event of Default. Upon such suspension, CONSULTANT shall be compensated only for those services and tasks which have been rendered by CONSULTANT to the reasonable satisfaction of CITY up to the effective date of the suspension. No actual or asserted breach of this Agreement on the part of CITY shall operate to prohibit or otherwise restrict CITY’s ability to suspend this Agreement as provided herein.
E. No waiver of any Event of Default or breach under this Agreement shall constitute a waiver of any other or subsequent Event of Default or breach. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
F. The duties and obligations imposed under this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. In addition to any other remedies available to CITY at law or under this Agreement in the event of any breach of this Agreement, CITY, in its sole and absolute discretion, may also pursue any one or more of the following remedies:
i. Upon written notice to CONSULTANT, the CITY may immediately terminate this Agreement in whole or in part;
ii. Upon written notice to CONSULTANT, the CITY may extend the time of performance;
iii. The CITY may proceed by appropriate court action to enforce the terms of the Agreement to recover damages for CONSULTANT’s breach of the Agreement or to terminate the Agreement; or
iv. The CITY may exercise any other available and lawful right or remedy.
CONSULTANT shall be liable for all legal fees plus other costs and expenses that CITY incurs upon a breach of this Agreement or in the CITY’s exercise of its remedies under this Agreement.
G. In the event CITY is in breach of this Agreement, CONSULTANT’s sole remedy shall be the suspension or termination of this Agreement and/or the recovery of any unpaid sums lawfully owed to CONSULTANT under this Agreement for completed services and tasks.
5.3 SCOPE OF WAIVER: No waiver of any default or breach under this Agreement shall constitute a waiver of any other default or breach, whether of the same or other covenant, warranty, agreement, term, condition, duty or requirement contained in this Agreement. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
5.4 SURVIVING ARTICLES, SECTIONS AND PROVISIONS: The termination of this Agreement pursuant to any provision of this Article or by normal expiration of its term or any extension thereto shall not operate to terminate any Article, Section or provision contained herein which provides that it shall survive the termination or normal expiration of this Agreement.
VI.
MISCELLANEOUS PROVISIONS
6.1 DOCUMENTS & DATA; LICENSING OF INTELLECTUAL PROPERTY: All Documents and Data shall be and remain the property of CITY without restriction or limitation upon their use or dissemination by CITY. For purposes of this Agreement, the term “Documents and Data” means and includes all reports, analyses, correspondence, plans, drawings, designs, renderings, specifications, notes, summaries, strategies, charts, schedules, spreadsheets, calculations, lists, data compilations, documents or other materials developed and/or assembled by or on behalf of CONSULTANT in the performance of this Agreement and fixed in any tangible medium of expression, including but not limited to Documents and Data stored digitally, magnetically and/or electronically. This Agreement creates, at no cost to CITY, a perpetual license for CITY to copy, use, reuse, disseminate and/or retain any and all copyrights, designs, and other intellectual property embodied in all Documents and Data. CONSULTANT shall require all subcontractors and subconslutants working on behalf of CONSULTANT in the performance of this Agreement to agree in writing that CITY shall be granted the same right to copy, use, reuse, disseminate and retain Documents and Data prepared or assembled by any subcontractor or subconsultant as applies to Documents and Data prepared by CONSULTANT in the performance of this Agreement.
6.2 CONFIDENTIALITY: All data, documents, discussion, or other information developed or received by CONSULTANT or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONSULTANT without prior written consent by CITY. CITY shall grant such consent if disclosure is legally required. Upon request, all CITY data shall be returned to CITY upon the termination or expiration of this Agreement. CONSULTANT shall not use CITY’s name or insignia, photographs, or any publicity pertaining to the Work in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of CITY.
6.3 FALSE CLAIMS ACT: CONSULTANT warrants and represents that neither CONSULTANT nor any person who is an officer of, in a managing position with, or has an ownership interest in CONSULTANT has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act, 31 U.S.C., Section 3789 et seq. and the California False Claims Act, Government Code Section 12650 et seq.
6.4 NOTICES: All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose:
CONSULTANT:
SWA Group, Inc.
Attn: Gerdo Aquino, Co-CEO / Principal
811 W. 7th Street, 8 FI
Los Angeles, CA 90017
Phone: (213) 236-9090
Fax: (213) 236-9091
CITY:
City of Cudahy
Public Works Department Attn:
Aaron Hernandez- Torres
5220 Santa Ana Street
Cudahy, CA 90201
Phone: (323) 773-5143 ext. 228
Such notices shall be deemed effective when personally delivered or successfully transmitted by facsimile as evidenced by a fax confirmation slip or when mailed, forty-eight (48) hours after deposit with the United States Postal Service, first class postage prepaid and addressed to the Party at its applicable address.
6.5 COOPERATION; FURTHER ACTS: The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as is reasonably necessary, appropriate or convenient to achieve the purposes of this Agreement.
6.6 SUBCONTRACTING: CONSULTANT shall not subcontract any portion of the Work required by this Agreement, except as expressly stated herein, without the prior written approval of CITY.
Subcontracts (including without limitation subcontracts with subconsultants), if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including provisions relating to insurance requirements and indemnification.
6.7 CITY’S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other contractors in connection with the various projects worked upon by CONSULTANT.
6.8 PROHIBITED INTERESTS: CONSULTANT warrants, represents and maintains that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this Agreement. Further, CONSULTANT warrants and represents that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONSULTANT, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, CITY shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
6.9 TIME IS OF THE ESSENCE: Time is of the essence for each and every provision of this Agreement.
6.10 GOVERNING LAW AND VENUE: This Agreement shall be interpreted and governed according to the laws of the State of California. In the event of litigation between the Parties, venue, without exception, shall be in the Los Angeles County Superior Court of the State of California. If, and only if, applicable law requires that all or part of any such litigation be tried exclusively in federal court, venue, without exception, shall be in the Central District of California located in the City of Los Angeles, California.
6.11 ATTORNEYS’ FEES: If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.
6.12 SUCCESSORS AND ASSIGNS: This Agreement shall be binding on the successors and assigns of the Parties.
6.13 NO THIRD PARTY BENEFIT: There are no intended third party beneficiaries of any right or obligation assumed by the Parties. All rights and benefits under this Agreement inure exclusively to the Parties.
6.14 CONSTRUCTION OF AGREEMENT: This Agreement shall not be construed in favor of, or against, either Party but shall be construed as if the Parties prepared this Agreement together through a process of negotiation and with the advice of their respective attorneys.
6.15 SEVERABILITY: If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
6.16 AMENDMENT: MODIFICATION: No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to CITY approval. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid.
6.17 CAPTIONS: The captions of the various articles, sections and paragraphs are for convenience and ease of reference only, and do not define, limits, augment, or describe the scope, content, or intent of this Agreement.
6.18 INCONSISTENCIES OR CONFLICTS: ln the event of any conflict or inconsistency between the provisions of this Agreement and any of the exhibits attached hereto, the provisions of this Agreement shall control.
6.19 ENTIRE AGREEMENT: This Agreement including allattached exhibits is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed herein and supersedes all other agreements or understandings, whether oral or written, or entered into between CITY and CONSULTANT prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid or binding. No amendment, modification or supplement to this Agreement shall be valid and binding unless in writing and duly executed by the Parties pursuant to Section 6.15, above.
6.20 COUNTERPARTS: .This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. No handwritten or typewritten amendment, modification or supplement to any one counterparts shall be valid or binding unless made to all three counterparts in conformity with Section 6.16, above. One fully executed original counterpart shall be delivered to CONSULTANT and the remaining two original counterparts shall be retained by ctw.
lN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first appearing in this Agreement, above.
CITY OF SWA lnc.7,
By:
er Gerdo Aquino, Co-CEO / Principal
Date Dale:512312023
c% 3n ?/
APPROVED AS TO FORM:
EXHIBIT “A”
SCOPE OF WORK
SWA l City of Cudahy Page 14 of 23 I 13
Scope of Work
Our Team recognizes that the task at hand is greater than simply improving the paths for cyclists or pedestrians or providing additional public amenities; there is a broader opportunity to improve the public perception of this portion of the LA River as an urban ecological corridor that promotes sustainability, environmental equity, and climate resiliency.
We will work with the City to establish thoughtful and
concentrated solutions with enhancement opportunities
most applicable to each site’s unique conditions and the community they serve.
The proposed leadership team for this proposal, Gerdo
Aquino (Co-CEO), Ying-yu Hung (Managing Principal), and Jeremy Klemic (Associate Principal) have accomplished a variety of tasks related to public spaces locally including along urban waterways, including: concept, design,
construction administration, and coordination. The first and most important step is to listen and understand; thus comprehending the City of Cudahy’s goals for revitalizing the Bike Path, creating community park space, promoting cultural values and instilling pride in these regional
amenities. Through a collaborative visioning process working with the city, SWA will gather the shared interests, goals, and opportunities for this project.
The project scope includes preparation of all necessary plans and to provide to the City a complete PS&E package ready for bidding. The following description of work defines the general project requirements. Associated tasks and
provisions necessary for a complete project within the
defined scope deliverables, but not specifically addressed herein will be undertaken within the proposed “Not to
Exceed” contract fee.
We have set forth the scope of services and proposed
schedule with a four-month timeline for delivery of this project from Preliminary Engineering (Design documents) to Bidding Documents (100% CD PS&E), with an estimated oneyear schedule for Construction.
TASK 1. PROJECT MANAGEMENT: KICKOFF/EXISTING CONDITIONS The purpose of this task is for SWA to gather the information necessary to perform the services outlined in this proposal, and establish goals with the City.
A. Attend a pre-design (kick-off) meeting with City
staff after the award of contract to conduct
introductions, discuss scope of work, information
needed from various City departments, overall
schedule and the implementation process.
Project Kick-Off: SWA will attend an in-person or virtual project kick-off meeting with the City to establish lines of communication, goals, define expectations and finalize
the proposed schedule. We will also seek information from the City regarding any local development stakeholders (as defined by the City Staff), and any ongoing efforts or plans for the bike path improvements.
Existing Conditions Analysis/Site Visit: Following the
meeting, The SWA team will perform a site walk with the City and other team members to review the project sites and further discuss the project components, goals, and
any items of potential concern discussed at the meeting.
While this site visit is optional for the City team, they are encouraged to attend.
b. Coordinate bi-weekly progress conference calls with
City staff to update the City of the project progress,
and schedule status. This is also a time for the SWA
team to ask any questions to the City or bring up any
design issues encountered.
Data request to the City of Cudahy may include:
• Plans - Localtransportation policies, guidelines,
adopted plans, and EIRs/EISs;
• Physical data - Any previously collected topographic, geologic, and hydrology data;
• Existing utility mapping (water, sewer, storm, gas &
electric) if available;
• Land use data, including parcel and right-of-way maps of public and private lands.
c. Coordinate meeting schedule to review the
preliminary design, 30%, 60%, 90%and 100%
submittals with City staff.
14 I Page 15 of 23 City of Cudahy I SWA
Scope of Work (cont.)
Project Meetings: will be coordinated with the appropriate City Staff and City designated Stakeholders and
agencies on a bi-weekly basis for review and
coordination of the design deliverables and schedule.
d. Provide a detailed project schedule with continuous
updates, and executive summary of project status to
be submitted with each monthly invoice.
Project Schedule: will include a breakdown (per week per day) of look ahead tasks and be maintained and updated on a bi-weekly basis for review and coordination during biweekly meetings. e. Maintain continuous awareness of the status of
each task as it proceeds and make provisions to
expedite and resolve any difficulties that may
impede progress.
Project Status: will be presented at bi-weekly meetings to ensure alignment of progress and upcoming deliverables. If unforeseen difficulties arise thatimpede progress City Staff will be immediately notified so that adjustments can be made prior to bi-weekly meetings accordingly.
f. Coordinate with City Staff the preparation and
submittal of quarterly project progress reports
and reimbursement request packages to Caltrans
throughout the design phase.
Caltrans Reports: quarterly reports will be supplemented with design progress information and verification of
fees/invoices incurred to date as required to effectively coordinate with City Staff.
Task 1 understanding (per site):
LA River Bike Path - Site 1:
• Concurrent meeting(s) and schedule alignment
• Provide project progress reports and findings
• Review scope and program elements with City Staff
• Provide project progress reports, discuss findings and coordinate Caltrans reports with City Staff
Cudahy River Park - Site 2:
• Concurrent meeting(s) and schedule alignment
• Review of existing, City provided, ‘shovel-ready’
construction documentation with City Staff to confirm
scope, program and elements
• Provide project progress reports, discuss findings and coordinate Caltrans reports with City Staff
Clara Bridge Slopes - Site 3:
• Concurrent meeting(s) and schedule alignment
• Provide project progress reports and findings
• Review scope and program elements with City Staff
• Provide project progress reports, discuss findings and coordinate Caltrans reports with City Staff
Otis Avenue Pocket Park - Site 4:
• Concurrent meeting(s) and schedule alignment
• Provide project progress reports and findings
• Review scope and program elements with City Staff
• Provide project progress reports, discuss findings and coordinate Caltrans reports with City Staff
Deliverables:
• Detailed Project Schedule;
• Existing Conditions/Site Observations Memo;
• Topographic Survey;
• Utility Information Request (to City);
• Meeting Memorandums and Progress Reports.
TASK 2. UTILITY COORDINATION
a. The Consultant shall ensure the final design is
compatible with all utilities within the project
area whether they are protected in place,removed,
installed,relocated, adjusted, or otherwise modified.
This includes contacting each affected agency
should be incorporated into the construction
schedule, if necessary.
Utility Verification: existing utilities will be mapped on a CAD baseplan to be used for design and construction
drawings. All adjustments to, protection of or proposed connections to existing utilities will be annotated accordingly in the final design.
b. Coordinate with the affected utility companies
within the project limits, and any applicable
agencies, as necessary, and notify the utility
company/agency of the project. Maintain a utility
SWA l City of Cudahy Page 16 of 23 I 15
Scope of Work (cont.)
contact matrix documenting contacts, coordination,
etc. with utility companies.
Utility Coordination: the appropriate agencies for existing utilities within the project limits will be notified of the project and communication documented accordingly.
c. Perform all necessary research to establish the
precise location of all utilities. All utilities (including overhead) must be identified and shown on the
plans.
Utility Research: verification of existing utilities (including overhead) and their locations will be mapped on a CAD
baseplan to be used for design and construction drawings. d. The preliminary and finals plans are to be sent to all affected utility companies.
Utility Coordination: the final City reviewed and approved plans will be shared with all utility companies with equipment or easements within the project scope of work.
Deliverables:
• Utility Information Request (to agencies);
• Utility information documentation;
• CAD baseplan of existing utilities for use in design.
Task 2 understanding (per site):
LA River Bike Path - Site 1:
• Utility information procurement and coordination
• Incorporation of Utility information into CAD baseplan Cudahy River Park - Site 2:
• Review of existing, City provided ‘shovel-ready’
construction documentation for inclusion of appropriate utility information for bidding and construction
• If deemed necessary, additional information to be
annotated on provided plans accordingly
Clara Bridge Slopes - Site 3:
• Utility information procurement and coordination
• Incorporation of Utility information into CAD baseplan Otis Avenue Pocket Park - Site 4:
• Utility information procurement and coordination
• Incorporation of Utility information into CAD baseplan TASK 3. PRELIMINARY ENGINEERING
As part of this phase, the SWA design team will brainstorm and collaborate with the City to establish preliminary design concepts. These concepts will be presented to the City Staff at the first bi-weekly meeting and reviewed for approval at a subsequent bi-weekly meeting. Continued coordination
/ communication between bi-weekly meetings may be
necessary to best determine design direction provided by the City’s initial commentary.
a. Environmental. The project is assumed to be a
categorical exemption.
Environmental: City to provide verification of environmental exemption if required for the preliminary design work to proceed.
b. Right-of-Way. All work is assumed to be within
existing public ROW. The design consultant shall
perform research on available right-of-way maps,
assessor parcel maps, and easement information
within the project limits. Based on this information,
existing ROW information shall be shown on
the plans. If any TCEs (Temporary Construction
Easements) are necessary, the consultant shall
show them on the plans. The City will obtain TCE’s
from adjacent property owners.
Right of Way: All ROW information will be determined
and shown on the plans accordingly. If TCEs are deemed
necessary these locations will be indicated to best enable City to obtain accordingly.
c. Review base data documents including as-built
improvement plans, utility information, survey
information, and other available record data.
As Built Review: All available as-built documentation
(provided by the City or otherwise obtainable) will be
reviewed for potential impacts to project scope and program elements.
d. Conduct necessary field surveys to assess existing
conditions of the project area.
Field Surveys: The SWA team (civil engineer, electrical engineer, landscape architect and irrigation specialist) will all perform site walks to determine existing conditions for opportunities, constraints and impacts to program
elements.
16 I Page 17 of 23 City of Cudahy I SWA
Scope of Work (cont.)
e. Develop preliminary design.
Preliminary Design: A schematic level concept design will be produced and reviewed with the City staff for adherence to program design, elements and materials. Comments
by City Staff will be incorporated into the final preliminary design documents.
f. Prepare Preliminary cost estimate (identify special
conditions that might create conflicts or change
orders during construction and identify how to
resolve these issues).
Preliminary Cost Estimate: A cost estimate of the final preliminary design documents will be provided and any site conditions or program elements that may need further
clarification or could result in requiring resolution which may result in a potential change order during construction will be identified.
g. Prepare Technical specifications.
Specifications: Specifications for the project will be
prepared based upon the final preliminary design for City review. Specifications will be in the Standard Specifications for Public Works Construction (Greenbook) format, providing any anticipated supplemental ‘special provisions’ or
amendments to the standard sections as deemed needed by the program elements as coordinated with City Staff.
Deliverables:
• Inclusion of ROW base map, as-built utility and field survey information into CAD base plans;
• Coordination of program elements and preliminary
design elements with City Staff
• Draft Preliminary Plans for City review and comment;
• Coordination meeting with City Staff, review of initial design and memorandum of design direction comments
• Final Preliminary Plans, Technical Specifications and Cost Estimate.
Task 3 understanding (per site):
LA River Bike Path - Site 1:
• Confirmation and coordination of ROW & TCE information • Review of as-built site information
• Development of Preliminary Plans, Specifications and
Cost Estimate
Cudahy River Park - Site 2:
• Review of existing, City provided ‘shovel-ready’
construction documentation for ROW & TCE
information
• Review of existing, City provided ‘shovel-ready’
construction documentation Plans, Specifications
and Estimate
• If deemed necessary, additional information to be
annotated on provided plans and specifications
accordingly
• Provision of updated Cost Estimate
Clara Bridge Slopes - Site 3:
• Confirmation and coordination of ROW & TCE
information
• Review of as-built site information
• Development of Preliminary Plans, Specifications and
Cost Estimate
Otis Avenue Pocket Park - Site 4:
• Confirmation and coordination of ROW & TCE
information
• Review of as-built site information
• Development of Preliminary Plans, Specifications and
Cost Estimate
TASK 4. PLANS, SPECIFICATIONS &
ESTIMATE
a. Plans, Specifications and Estimate (PS&E)
shall be provided at levels of completion of
approximately 30%, 60%, 90% and 100%.
PS&E: Coordination with City Staff and provision of
submittals of Construction Documentation for Plans
Specifications and Estimate at each of the milestone
phases as indicated.
b. The City will provide review comments at the 30%,
60%, and 90% design phases.
City Review: Coordination with City Staff for review and addressing commentary received prior to proceeding to
submitthe subsequent milestone deliverable as indicated. c. It is expected 100% plans will be complete and
Scope of Work (cont.)
include comments and input from all stakeholders
and appropriate City staff.
Completion: Confirming that all comments and input
from both City Staff and associated project stakeholders has been sufficiently addressed prior to submitting 100% documentation.
d. Specifications shall be furnished using the
latest edition of Microsoft Word for Windows.
The Consultant shall prepare the Specifications
per City requirements and utilizing the Standard
Specifications for Public Works Construction
(“Greenbook”).
Specifications: Provision of “Greenbook” format
specifications that will include any amendments to
Sections and Special provisions deemed necessary to
complete the agreed upon work to the level of expectations of City Staff.
e. Estimate shall be prepared in spreadsheet format
using Microsoft Excel.
Estimate: Estimate to be provided in City designated
Microsoft Excel format.
f. The Consultant shall create a comment matrix to
verify all City comments are addressed with each
submittal.
Comment Matrix: Provision and maintenance of a
comment matrix to track all City comments and assure
that they have been addressed.
g. Available to present progress design to City
Council.
City Council Presentation: SWA will present the progress design at designated submittal milestones to City Council within the timeframe ofthe overall project Design schedule as deemed appropriate.
30%, 60%, 90% Construction Documents/Bid Set:
Upon the City’s approval of the Preliminary Plans, SWA
will develop working drawings and technical sections of specifications to construct the work and shall prepare an estimate of probable construction costfor each milestone deliverable as indicated.
Deliverables:
• Develop the complete set of construction drawings
and specifications and cost estimate for one (1),
City selected, ‘final preliminary design’ and submit
to the City at 30%, 60%, 90% and 100% (bid set)
milestones;
• Finalize all design decisions with consensus from
the City of Cudahy;
• Project Team meetings with the City of Cudahy at
milestones to review and confirm project progress.
Written responses and related revisions to all
City comments at 30%, 60%, and 90% milestone
submissions;
• Preparation of Final Plans, Specifications and
Estimate for the following:
>> Landscape Plans documenting:
1) Proposed layout, 2) Materials types and
locations 3) Planting, 4) Other amenities:
furnishings, signage and wayfinding,
5) Landscape Construction Details
>> Civil Engineering Plans documenting:
1) Existing Conditions, 2) Demolition, 3) Grading
and Drainage, 4) Utilities
>> Electrical Engineering Plans documenting:
1) Lighting and Fixtures, 2) Power Plan
>> Irrigation Plans documenting:
1) Irrigation system, 2) Irrigation Details
• Provide an estimate of probable cost for the entire
project budget based on 30%, 60%, 90% and 100%
(Bid Set) Construction Documents.
Task 4 understanding (per site):
LA River Bike Path - Site 1:
• Provide PS&E at each milestone deliverable phase
as indicated
• Review PS&E with City Staff at each milestone as
indicated
• Track and address City Staff comments prior to
proceeding to submit next milestone deliverable
• Present progress of designs to City Council as
indicated
Cudahy River Park - Site 2:
SWA l City of Cudahy Page 18 of 23 I 17
18 I Page 19 of 23 City of Cudahy I SWA
Scope of Work (cont.)
• Incorporate existing, City provided ‘shovel-ready’
Plans and Specifications at each milestone
deliverable phase as indicated
• Provide updated Cost Estimate at each milestone
deliverable phase as indicated
• Review PS&E with City Staff at each milestone as
indicated
• Track and address City Staff comments prior to
proceeding to submit next milestone deliverable
• Present progress of designs to City Council as
indicated
Clara Bridge Slopes - Site 3:
• Provide PS&E at each milestone deliverable phase as
indicated
• Review PS&E with City Staff at each milestone as
indicated
• Track and address City Staff comments prior to
proceeding to submit next milestone deliverable
• Present progress of designs to City Council as
indicated
Otis Avenue Pocket Park - Site 4:
• Provide PS&E at each milestone deliverable phase as
indicated
• Review PS&E with City Staff at each milestone as
indicated
• Track and address City Staff comments prior to
proceeding to submit next milestone deliverable
• Present progress of designs to City Council as
indicated
TASK 5. BIDDING AND CONSTRUCTION
SUPPORT
a. Respond to Requests for Information (RFIs)
during the project advertisement period, and log
questions and responses.
RFI Responses (during Bid): The SWA team will receive
and review all provided Requests for Information in
relation to the team’s scope of work and provide
responses for City review and distribution to bidders
accordingly.
b. Prepare project addenda.
Drawing Addendums: The SWA team will coordinate
with the City Staff for any requested revisions to Bid
set drawings and provide subsequent addendums to the
drawings for City review and distribution.
c. Attend the pre-construction meeting, job walk,
and job-site meetings when requested by the City
over the course of the construction schedule
(assume 5 meetings).
Construction Observation Meetings: SWA team will
attend the pre-construction meeting, job walk and onsite job meetings for up to 5 meetings during the course of construction.
d. Provide responses to the Contractor’s RFIs about
the plans and specifications when requested by
the City.
RFI Responses (during construction): The SWA
team will receive and review all provided Requests for
Information in relation to the team’s scope of work and provide responses for City review and distribution to the contractor accordingly.
e. Provide responses and approvals to the
Contractor’s submittals for materials and shop
drawings when requested by the City.
Submittals: The SWA team will receive and review all
provided submittals in relation to the team’s scope
of work and provide responses for City review and
distribution to the contractor accordingly.
Bidding: SWA shall assist the City of Cudahy in reviewing and evaluating bids and assistance in awarding and
preparing contracts for construction.
Construction Support: SWA will provide field services
to ensure that the project is built to consistently high standards. SWA can make periodic visits to the site
to familiarize itself generally with the progress and
quality of construction and to determine in general if
the construction is proceeding in accordance with SWA’s design intent and construction documents.
• Project construction kick-off meeting;
• Provide clarifications, addendum, and bulletins as
SWA l City of Cudahy Page 20 of 23 I 19
Scope of Work (cont.)
needed;
• Review shop drawings and submittals;
• Respond to Requests for Information;
• Attend on-site construction meetings and provide
construction observation;
• Visit nurseries with contractor’s representative to
select and tag trees;
• Provide pre-maintenance punch list, maintenance
check, and final walkthrough;
Deliverables:
• Pre-Bid Meeting with Client and Potential Contractors • Written evaluations of bid proposals.
• Prepare one (1) bid addendum
• Respond to RFI’s and Submittals
• Attend up to (5) Construction Meetings
Task 5 understanding (per site):
LA River Bike Path - Site 1:
• Review and evaluate Bid proposals
• Prepare Bid addendum (if needed)
• Respond to RFI’s and Submittals
• Attend Construction Support Meetings (5)
Cudahy River Park - Site 2:
• Review and evaluate Bid proposals
• Prepare Bid addendum (if needed)
• Respond to RFI’s and Submittals
• Attend Construction Support Meetings (5)
Clara Bridge Slopes - Site 3:
• Review and evaluate Bid proposals
• Prepare Bid addendum (if needed)
• Respond to RFI’s and Submittals
• Attend Construction Support Meetings (5)
Otis Avenue Pocket Park - Site 4:
• Review and evaluate Bid proposals
• Prepare Bid addendum (if needed)
• Respond to RFI’s and Submittals
• Attend Construction Support Meetings (5)
TASK 6. PREPARE RECORD DRAWINGS
(AS-BUILTS)
a. Prepare as-built drawings based on field redlined as-built information provided by the City’s Construction Contractor.
Record Drawings: The SWA team will receive and
review the contractor’s as-built, red-lined drawings
and incorporate the revisions into a Record Drawings
set for City records accordingly.
Deliverables:
• Record Drawings
Task 6 understanding (per site):
LA River Bike Path - Site 1:
• Prepare Record Drawings
Cudahy River Park - Site 2:
• Annotate existing, City provided ‘shovel-ready’
Plans per contractor’s provided as-built drawings
for Record Drawings purposes
Clara Bridge Slopes - Site 3:
• Prepare Record Drawings
Otis Avenue Pocket Park - Site 4:
• Prepare Record Drawings
Additional Construction Support Services: The
SWA team will provide additional construction support
services as a hourly fee per provided separate fee
schedule. Fee is anticipated to be at the rate of the
project manager. Such services are to be negotiated
with the City (under separate contract) as indicated.
EXHIBIT “B”
COMPENSATION RATE
RFP to Provide Design Phase Engineering Services for the Preparation of PS&E (Plan, Specifications and Estimates) for Cudahy Los Angeles River Area Improvement Project
Funded by Clean California Local Grant Project (CCLGP) Funds in Cudahy, California Project Tasks Subtasks
SWA
Proj. Mgr.
SWA
Principal
SWA
Associtae
SWA
Designer
Total
Hours Fee
Total
Fee
$ 185.00 $ 310.00 $ 150.00 $ 120.00
Task 1. Project Management
Site 1 - LA River Bike Path 8 0 0 0 8 $ 1,480
Site 2 - Cudahy River Park 4 0 0 0 4 $ 740
Site 3 - Clara Bridge Slopes 8 0 0 0 8 $ 1,480
Site 4 - Otis Ave. Pocket Park 8 0 0 0 8 $ 1,480
Subtotal 1.a - SWA Fees $ 5,180 $ 5,180
CWE (Survey & Civil) $ 7,104
P2S (Electrical & Lighting) $ 5,115
Cumming (Cost Estimate) $ -
Reimbursable Expenses $ 300
Subtotal 1.b - Consultant Fees $ 12,519 $ 12,519
Subtotal task 1 $ 17,699
Task 2. Utility Coordination
Site 1 - LA River Bike Path 8 1 1 1 11 $ 2,060
Site 2 - Cudahy River Park 4 0 0 0 4 $ 740
Site 3 - Clara Bridge Slopes 8 1 1 1 11 $ 2,060
Site 4 - Otis Ave. Pocket Park 8 1 1 1 11 $ 2,060
Subtotal 2.a - SWA Fees $ 6,920 $ 6,920
CWE (Survey & Civil) $ 14,208
P2S (Electrical & Lighting) $ 6,576
Cumming (Cost Estimate) $ -
Reimbursable Expenses $ 300
Subtotal 2.b - Consultant Fees $ 21,084 $ 21,084
Subtotal task 2 $ 28,004
Task 3. Preliminary Engineering
Site 1 - LA River Bike Path 24 4 64 64 156 $ 22,960
Site 2 - Cudahy River Park 12 2 4 0 18 $ 3,440
Site 3 - Clara Bridge Slopes 8 2 16 12 38 $ 5,940
Site 4 - Otis Ave. Pocket Park 24 4 24 64 116 $ 16,960
Subtotal 3.a - SWA Fees $ 49,300 $ 49,300
CWE (Survey & Civil) $ 45,193
P2S (Electrical & Lighting) $ 26,534
Cumming (Cost Estimate) $ 4,950
Reimbursable Expenses $ 300
Subtotal 3.b - Consultant Fees $ 76,977 $ 76,977
Subtotal task 3 $ 126,277
Task 4. Plans, Specifications & Estimate
Site 1 - LA River Bike Path 62 5 176 176 419 $ 60,540
Site 2 - Cudahy River Park 28 5 12 0 45 $ 8,530
Site 3 - Clara Bridge Slopes 22 5 38 36 101 $ 15,640
Site 4 - Otis Ave. Pocket Park 62 5 88 176 331 $ 47,340 Subtotal 4.a - SWA Fees $ 132,050 $ 132,050
CWE (Survey & Civil) $ 54,174
P2S (Electrical & Lighting) $ 61,138
Cumming (Cost Estimate) $ 31,885
Reimbursable Expenses $ 600
Subtotal 4.b - Consultant Fees $ 147,797 $ 147,797
Subtotal task 4 $ 279,847
RFP to Provide Design Phase Engineering Services for the Preparation of PS&E (Plan, Specifications and Estimates) for Cudahy Los Angeles River Area Improvement Project
Funded by Clean California Local Grant Project (CCLGP) Funds in Cudahy, California Project Tasks Subtasks
SWA
Proj. Mgr.
SWA
Principal
SWA
Associtae
SWA
Designer
Total
Hours Fee
Total
Fee
$ 185.00 $ 310.00 $ 150.00 $ 120.00
Task 5. Bidding & Construction Support
Site 1 - LA River Bike Path 16 0 12 0 28 $ 4,760
Site 2 - Cudahy River Park 8 0 0 0 8 $ 1,480
Site 3 - Clara Bridge Slopes 16 0 12 0 28 $ 4,760
Site 4 - Otis Ave. Pocket Park 16 0 12 0 28 $ 4,760
Subtotal 5.a - SWA Fees Subtotal 5.a - SWA Fees $ 15,760 $ 15,760 CWE (Survey & Civil) $ 19,686
P2S (Electrical & Lighting) $ 27,132
Cumming (Cost Estimate) $ -
Reimbursable Expenses $ 1,500
Subtotal 5.b - Consultant Fees Subtotal 5.b - Consultant Fees $ 48,318 $ 48,318 Subtotal task 5 $ 64,078
Task 6. Prepare Record Drawings
Site 1 - LA River Bike Path 2 0 2 0 4 $ 670
Site 2 - Cudahy River Park 2 0 4 0 6 $ 970
Site 3 - Clara Bridge Slopes 2 0 2 0 4 $ 670
Site 4 - Otis Ave. Pocket Park 2 0 2 0 4 $ 670
Subtotal 6.a - SWA Fees $ 2,980 $ 2,980
CWE (Survey & Civil) $ 8,054
P2S (Electrical & Lighting) $ 9,631
Cumming (Cost Estimate) $ -
Reimbursable Expenses $ -
Subtotal 6.b - Consultant Fees $ 17,685 $ 17,685
Subtotal task 6 $ 20,665
Total Fees $ 536,570
EXHIBIT B
Scope of Work
Attachment BPage 3929 of 4584
811 W 7th St
8th Floor
Los Angeles, California
90017
+1.213.236.9090
www.swagroup.com
Gerdo P Aquino
Ying-Yu Hung
Ning Deng
February 26, 2024
Aaron Hernandez-Torres
City of Cudahy
Public Works Department
Via email: Aaron Hernandez-Torres [email protected] Attention: Aaron Hernandez-Torres
Subject: Cudahy LA River Area Improvement Project, (the “Project”) SWA Job #CUDT301.C
Dear Aaron:
We are pleased to submit the following Add Service Request for Professional Services in connection with the project referenced above.
This Agreement is by and between SWA Group ("SWA"), a California corporation, and the City of Cudahy ("Client"), Cudahy, California.
I. PROJECT DESCRIPTION
SWA has been requested to engage Geocon West Inc. for geotechnical services pertaining to Site 3 (Clara Bridge Slopes) and Site 4 (Otis Ave. Pocket Park).
II. SCOPE OF SERVICES
The scope of services shall include:
A. Clara Bridge Slopes (Site 3):
1. Field Investigation
2. Agronomic Testing
3. Laboratory Testing
4. Report Preparation
B. Otis Ave. Pocket Park (Site 4):
1. Field Investigation
2. Laboratory Testing
3. Report Preparation
III. DESIGN APPROVAL
Aaron Hernandez-Torres has been designated as the person responsible for design direction to SWA for this project and has the authority for design approval. In the event that the design, as approved by Aaron Hernandez-Torres is rejected by others, and re-design is required, such redesign services shall be compensated as Additional Services.
City of Cudahy
February 26, 2024
Cudahy LA River Area Improvement Project
IV. FEES AND TERMS
We estimate the following fee breakdown:
Phase Fee
Geocon – Geotechnical Services $23,180
SWA $1,500
Fee Total $24,680
Geocon proposes to provide the services described in ‘Exhibit A’ on a lump sum fee basis. These services will be billed to you under our job number CUDT301.C on a fixed-fee basis under the terms and conditions of our contract with you dated May 2, 2023 (SWA Job #CUDT301).
The fee for these services shall be provided for the fixed sum of $24,680. We request your written approval of this authorization for Additional Services by signing and returning one copy of this letter for our files.
If this is not your understanding, or if you have questions regarding the above, please contact me immediately.
Sincerely yours,
SWA GROUP
Sincerely yours,
SWA GROUP
_______________________________
Gerdo Aquino, Co-CEO/ Principal
Contracting Agent
Landscape Architect, CA License #4996
Landscape architects are licensed by the State of California.
City of Cudahy
February 26, 2024
Cudahy LA River Area Improvement Project
Accepted: City of Cudahy
By:
Title:
Date:
________________________________________________
________________________________________________
________________________________________________
GA/aa
Proposal copyright ©2024 by SWA Group. No portion of this proposal may be copied or distributed to without the written permission of SWA Group.
City Manager
March 3, 2024
Proposal No. 2023-436
Revised February 26, 2024
VIA E-MAIL
SWA
811 W 7th Street
Los Angeles, California 90017
Attention: Ms. Alejandra Aguilar
Subject: LIMITED GEOTECHNICAL INVESTIGATION FOR TWO SITES CUDAHY LA RIVER AREA IMPROVEMENT PROJECT ( PROJ. NO. ABP-001)
CLARA BRIDGE SLOPES AND CUDAHY GATEWAY LANDMARK
SITE 1: CLARA STREET BETWEEN RIVER ROAD
SITE 2: ELIZABETH STREET AND OTIS STREET
CUDAHY, CALIFORNIA
Dear Ms. Aguilar:
In accordance with your request, we are pleased to submit our proposal to perform limited geotechnical investigations in support of the Cudahy Los Angeles River Area Improvement Project located at the subject sites in the City of Cudahy, California.
DISCUSSION
To aid in preparing this proposal, we have conducted a satellite reconnaissance, have reviewed existing published geologic information, and reviewed preliminary project plans created the two sites.
It is our understanding that improvements are being proposed for two sites within the city of Cudahy.
The location of the project and the description of proposed improvements are provided below.
Site 1: Clara Bridge Slopes
Location: Along the north and south side slopes of Clara Street west of Los Angeles River and adjacent to River Road.
Project Description: Remove existing asphalt cover on the slopes and construct terrace retaining walls.
Site 2: Cudahy Gateway Landmark
Location: Cudahy Lugo Park bounded by Elizabeth Street to the North, Otis Avenue to the East, and Salt Lake Avenue to the southwest.
Project Description: Construct concrete letter signage along the southwest portion of the park.
Exhibit 'A'
Geocon Proposal No. LP-2023-436 - 2 - Revised February 26, 2024 Based on our review of in-house geologic literature and maps, it is anticipated that the subject sites are underlain by younger alluvial soil deposits. A review of the Seismic Hazard Maps of the State of California, South Gate Quadrangle, indicates that the sites are located in an area designated as “Liquefiable”. The sites are not located within an Alquist Priolo earthquake fault zone for surface fault rupture, and the sites are not directly underlain by any known faults or fault-related features.
The historic high groundwater table is reported to be approximately between 8-10 feet below the existing ground surface. It is our understanding that based on the proposed non-habitable improvements, liquefaction analysis will not be required.
SCOPE OF WORK
Based on the above discussion and our understanding of the project, we recommend that the scope of the limited geotechnical investigation consist of the following:
Review published geologic maps, and other literature pertaining to the site to aid in evaluating geologic hazards that may be present.
Coordinate site access for field explorations. Perform a site reconnaissance and pre-mark proposed boring locations.
Contact Underground Service Alert to delineate public utilities and easements within the site prior to performing drilling operations.
(Recommended) Retain the services of a private utility locator to evaluate the proposed boring locations for the presence of buried utilities or tanks. This task will be performed in addition to contacting Underground Service Alert to delineate utilities within the site prior to performing drilling operations.
Site 1: Clara Bridge Slopes
Core the existing paving, as necessary, and excavate six (6) small diameter borings utilizing manual augers and digging equipment. The borings will be advanced to depths between approximately 10 and 20 feet below the ground surface, or refusal. Preliminary boring locations are presented on the Site Plan below; boring locations will be confirmed during a site visit prior to conducting the field work.
Geocon Proposal No. LP-2023-436 - 3 - Revised February 26, 2024 o This proposal assumes that work can be performed during Monday through Friday, 7am to 4pm. Two full days will be required complete the field work for this site. o Fees and time associated with required permits, if any, are not included in this proposed fee. Permit fees will be added to our invoice as a reimbursable expense.
Site 2: Cudahy Gateway Landmark
Excavate 3 small diameter test borings using manual augers and digging equipment.
The borings will be advanced to depths between 5 and 15 below the ground surface, or refusal.
Preliminary boring locations are presented on the Site Plan below; boring locations will be confirmed during a site visit prior to conducting the field work. Perform sampling, examine the prevailing soil conditions, determine depth of groundwater, and gather the information necessary for design of the proposed project. Backfill and compact the borings. Patch the surface with AC-cold-patch or quick-set concrete, if necessary. It is assumed that all spoils will be backfilled into the boreholes; any excess soils will remain onsite or spread in planter areas. If encountered, soils suspected to be contaminated will be segregated and placed in 55-gallon drums for analytical testing and disposal. If this is required, the additional work will be performed on a time and materials basis in accordance with our schedule of fees.
Perform soil sampling during excavation, examine the prevailing soil conditions, determine depth of shallow groundwater, if any, and gather the information necessary for design of improvements.
Perform laboratory tests on selected soil samples to evaluate in-situ density, shear strength, compaction, consolidation, and expansion characteristics of the prevailing soil conditions. Testing for Water-Soluble Sulfate, Chloride, PH, and Resistivity of the soils for concrete and utility pipe corrosivity design
Geocon Proposal No. LP-2023-436 - 4 - Revised February 26, 2024 Retain the services of an agricultural consultant to perform agronomic testing in proposed planter areas located in Site 1.
Perform slope stability analyses for Site 1 to evaluate static conditions of the existing and proposed slope configurations to verify that the slope configuration has an adequate factor of safety that would not preclude construction of the proposed improvements. Prepare two separate reports presenting our findings, conclusions, and recommendations regarding the geotechnical aspects of proposed design and construction.
The report will be suitable for submittal to the Building Official and your design professionals and will contain conclusions and recommendations regarding the following:
o Description of subsurface soil conditions and controlling engineering properties of the encountered materials, boring logs, a plan indicating boring locations and their elevations relative to the nearest bench mark, and summary of ground water levels, if any.
o Discussion of various foundation types that may be considered for the planned repair/improvement. Foundation design parameters, allowable vertical and lateral capacities, and expected short term, long term and differential settlements. Allowable passive pressures and coefficient of friction will be provided. o Site grading recommendations, suitability of the site soils for use as compacted fill and criteria for backfill soils, including imported fill materials and recommendations to mitigate the effects of expansive soils, if any.
o Recommendations regarding design and construction of pavements, recommended procedures for subgrade preparation and criteria for subgrade testing during construction. Recommendations for slab moisture barriers, if needed. o Recommendations regarding temporary and permanent excavations, including permissible slope angles, treatments necessary to provide stable slopes and design criteria for bracing or shoring of vertical excavations. Excavations adjacent to existing improvements will be addressed.
o Seismic design criteria in conformance with the current California Building Code.
Geocon Proposal No. LP-2023-436 - 5 - Revised February 26, 2024
COST OF SERVICES
It is anticipated that the limited geotechnical report can be furnished approximately four weeks after completion of exploration; however, pertinent information can be furnished sooner. We propose to perform the scope of work for a lump sum fee indicated in the breakdown below.
FEE BREAKDOWN
Site 1: Clara Street Slopes Fee
Field Investigation
Drilling Subcontractor $4,510
Geocon Staff $3,300
Agronomic Testing $700
Laboratory Testing $2,825
Report Preparation $4,260
TOTAL ESTIMATED FEE $15,595
Site 2: Cudahy Gateway Landmark Fee
Field Investigation
Drilling Subcontractor $1,890
Geocon Staff $1,700
Laboratory Testing $1,825
Report Preparation $2,170
TOTAL ESTIMATED FEE $7,585
Project Lump Sum Total = $23,180
Private Utility Locating (Recommended) $2,000
Geocon strongly recommends the use of private utility location, as it can reduce the risk of damaging existing utilities during exploration. This service can be performed for a lump sum fee of $2,000.
The client is responsible for accurately delineating the locations of all subterranean structures and utilities as well as the location of sensitive natural habitats and/or archaeological sites. At a minimum we will contact Underground Service Alert (USA) to delineate public utilities within the site prior to performing drilling operations; however, we will not be responsible for damage to any such lines, structures, vegetation, or archaeological sites that are not accurately marked by USA or shown accurately on the plans provided to us. Geocon will take reasonable precautions to avoid known subterranean structures, and Client waives any claim against Geocon, and agrees to defend, indemnify, and hold Geocon harmless from any claim or liability for injury or loss, including costs of defense, arising from damage done to subterranean structures and utilities not identified or accurately located.
Geocon Proposal No. LP-2023-436 - 6 - Revised February 26, 2024 All services would be provided in accordance with the enclosed Schedule of Fees. No retainer is required; however, the fee will be due 30 days after report delivery. Invoices would be submitted at four-week intervals and would be itemized to reflect only the actual time and costs incurred.
If unanticipated field conditions are encountered that require a significant modification to the recommended scope of work and/or that require an increase to the estimated fee; we would not proceed with the modified scope or increased amount without obtaining your written authorization.
The proposed scope of services does not include the evaluation or identification of the potential presence of hazardous or corrosive materials (chemicals) on the site.
We prepared this proposal with the understanding that this is a prevailing wage project; however, Skilled and Trained Workforce Requirements are not applicable. If Client should conclude the foregoing understanding is incorrect, please so advise us in writing immediately. If failure to so advise us results in the imposition of fines, penalties, claims or damages against us, Client will reimburse us for all costs and expenses.
In preparing this proposal, we have made every effort to anticipate subsurface conditions and to coordinate with regulatory agency personnel regarding the scope of our investigation. However, regulatory agencies occasionally request additional exploration or clarification to assure that investigations are complete and fully understood by all concerned parties. Responses to letters from the regulatory agencies requiring clarification of our report will be performed at our normal hourly rates.
Any additional exploration, addendum letters, or plan review services required following the completion of our report will be billed at our normal hourly rates.
Plan review, consultation, and site observations and testing during construction are not included in the cost of the investigation. These services, when required, will be billed at our normal hourly rates, in accordance with the attached Schedule of Fees/Term and Conditions, which is incorporated into and made part of this proposal.
LIMITATIONS
Please carefully review the contents of this proposal and the enclosed Terms and Conditions for Performance of Services (Terms), which is incorporated into and made a part of this proposal. If they meet with your approval, execute the Terms and return a copy via email to our office. We will then endorse the documents and return an executed copy to you. We will commence with the scope of services outlined herein upon receipt of your written authorization; however, services provided by Geocon will be pursuant to the Terms and Schedule of Fees until or unless a mutually agreed upon, negotiated contract is finalized. Please note that it is necessary to indicate your project representative agent on the first sheet of the Terms and the address where all Client notices and communications should be sent. If you do not have an in-house representative agent, please indicate a designated agent.
Geocon Proposal No. LP-2023-436 - 7 - Revised February 26, 2024 The California Legislature enacted Business & Professions Code §6749, effective January 1, 2001, which requires that all contracts with private entities be set forth in writing, contain certain terms, including a description of the services to be provided, the basis of compensation, the name, address and certificate number of the professional engineer and be signed by the parties before commencement of any work by the engineer. Therefore, the enclosed Terms or the waiver of Business & Professions Code §6749 letter must be signed by Client prior to Geocon’s commencement of any work, whatsoever, on the project. For your convenience, a copy of the Business & Professions Code §6749 waiver letter with the actual code text printed on the back is attached to this proposal.
It is mutually agreed between Client and Geocon that all services afforded and work performed by Geocon are provided pursuant to Civil Code Section 2782 and such agreement is expressly integrated into and made a part of any and all contracts or agreements entered into between the parties.
Please be advised that if Geocon is required to provide an immediate defense to Client pursuant to a claim alleging the negligence of Geocon, Client will be billed on a time and materials basis for such defense in accordance with Geocon’s Schedule of Fees, and if there is a final determination by a court of competent jurisdiction that a portion of the damages awarded in connection with a claim were caused by or attributable to Geocon, then Geocon shall be obligated to reimburse Client for that portion of the defense costs reasonably incurred by Client which is attributable to the portion of the damages caused by or attributable to Geocon. Notwithstanding the foregoing, under no circumstances shall Geocon be liable for providing an immediate defense to Client for any claim not alleging the negligence or other liability of Geocon.
Should you have any questions regarding this proposal, or if we may be of further service, please contact the undersigned at your convenience.
Very truly yours,
GEOCON WEST, INC.
Rex Panoy
Senior Staff Engineer
Harry Derkalousdian, PE
Senior Project Engineer
Enclosures: TCPS; 2023 Schedule of Fees; BPC §6749 Waiver Letter (EMAIL) Addressee
Client’s Initials Page 1 of 9 Geocon’s Initials
GEOCON WEST, INC.
500 North Victory Blvd., Burbank, CA 91502
Tel. 818.841.8388 Fax 818.841.1704
TERMS AND CONDITIONS
FOR
PERFORMANCE OF SERVICES
THE AGREEMENT Geocon Project No.:
Agreement Date:
This Agreement is made by and between Geocon West, Inc., hereinafter referred to as “Geocon,” and, __________________________________________________, a ____________________ corporation/LLC/LP (circle one), Hereinafter referred to s “Client.” The term “Client” includes ________________________________________, who is the Client’s project representative agent and/or, ___________________________________, who is the Client’s designated agent for all notices and communications between Geocon and Client. All notices and communications from Geocon to Client are to be addressed to:
Send Invoices to: Send Deliverables and Notices to:
Email: _____________________________________ Email: ___________________________________ Phone: _____________________________________ Phone: ___________________________________ Address: ___________________________________ Address: ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ Attention: ___________________________________ Attention: ___________________________________
PROJECT DETAILS
Project Labor Agreement:
This project is not subject to a Project Labor Agreement/Union Requirements.
This project is subject to a Project Labor Agreement/Union Requirements.
The Agreement between the parties consists of these Terms, the attached Proposal (LP-2023-436) for Geotechnical Investigation [for] Clara Street between River Road and Elizabeth Street and Otis Street, Cudahy, CA, dated 02/26/2024, and any exhibits or attachments noted in the Proposal.
A) Site 1 – Clara Street Slopes:
B) Site 2 – Cudahy Gateway Landmark:
C) Private Utility Location (recommended):
For a lump sum fee of $15,545. Retainer fee of $N/A.
For a lump sum fee of $7,585. Retainer fee of $N/A.
For an additional fee of $2,000. Initial if desired __________ D) As-Needed Consultation, Inspection and Testing Services: Hourly (In Accordance with 2023 Schedule of Fees)
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Prevailing Wage (CA Labor Code sections 1771, 1775, 1776, 1777.5, 1813, and 1815):
This is not a Prevailing Wage project.
This is a Prevailing Wage project. DIR Number: _______________ • If no DIR Number has been assigned yet, please provide the following information:
o Name of the Awarding Body: _____________________________________________ o Name of the Project (as provided by the Awarding Body): ______________________________ o Project Budget: ______________________________
o Estimated Overall Project Start Date: ______________________________ o Estimated Overall Project End Date: ______________________________ Local Hire Requirements:
This project is not subject to Local Hire Requirements.
This project is subject to Local Hire Requirements.
Apprenticeship Requirements:
This project is not subject to Apprenticeship Requirements.
This project is subject to Apprenticeship Requirements.
Skilled and Trained Workforce Requirements (CA Public Contract Code sections 2600 et seq.):
This project is not subject to Skilled and Trained Workforce Requirements.
This project is subject to Skilled and Trained Workforce Requirements.
Other Requirements:
The accuracy and completeness of the information provided herein is crucial for ensuring proper compliance with relevant regulations and requirements. Geocon relies on the information supplied by Client, and any decisions or actions taken based on this information are made in good faith. It is essential for Client to ensure the accuracy of the details provided.
SUMMARY OF DOCUMENTS
Client and Geocon agree to perform this Agreement in accordance with the following exhibits which are incorporated herein by reference and made a part of this Agreement:
Exhibit 1: Geocon’s Proposal
Exhibit 2: Geocon’s Schedule of Fees/Terms and Conditions Exhibit 3: Business & Professional Code §6749 Waiver Letter Together, these elements will constitute the entire Agreement superseding any and all prior negotiations, correspondence, or agreements either written or oral. Any changes to this Agreement must be mutually agreed to in writing.
Client’s Initials Page 3 of 9 Geocon’s Initials
ARTICLE 1 – AGREEMENT
The services provided by Geocon shall be performed in
accordance with the Standard of Care (defined below).
Geocon’s services are defined by and limited to those
services described in the attached Proposal and Schedule of Fees, which are incorporated by this reference and these Terms and Conditions. Together, the Proposal, Schedule of Fees, and Terms and Conditions form the entire Agreement and supersede all prior negotiations, representations, or agreements, either written or oral. This Agreement can
only be amended by a written instrument signed by both
Client and Geocon. Failure to immediately enforce any
provision in this Agreement shall not constitute a waiver of the right to enforce that provision or any other provision.
ARTICLE 2 – SCOPE OF SERVICES
Geocon’s services under this Agreement include only those services specified in the Proposal attached hereto as Exhibit
1. Client expressly releases any claim against Geocon
relating to any additional services that Geocon
recommended, but that Client either did not authorize or instructed Geocon not to perform.
Unless specifically stated otherwise, the Proposal attached hereto does not include surveying the project site (“the Site”) or precisely identifying sampling, inspection or test
locations, depths and elevations. Where applicable,
sampling, inspection, test locations, depths and elevations will be based on field estimates and information furnished by Client and its representatives. Unless stated otherwise in the report, such locations, depths and elevations are
approximate. Geocon will take reasonable precautions to limit damage to the Site due to the performance of services, but Client understands that some damage may necessarily occur in the normal course of services, and this Agreement does not include repair of such damage unless specifically stated in the Proposal.
Where applicable, observations and standardized sampling, inspection and testing procedures employed by Geocon will indicate conditions of materials and construction activities only at the precise location and time where and when
services were performed.
Client recognizes that actual conditions at the Site, or where applicable, conditions of materials and construction activities at other locations, may vary from those measured or observed by Geocon when performing the services, and that conditions at one location and time do not necessarily indicate the conditions of apparently identical material(s) at other locations and times. Services of Geocon, even if
performed on a continuous basis, should not be interpreted to mean that Geocon is observing, verifying, testing or inspecting all materials on the Site. Geocon is responsible only for those data, interpretations, and recommendations based solely on information available to Geocon and will only be accurate as of the date of observation.
Furthermore, where applicable, Geocon is only responsible for those data, interpretations, and recommendations
regarding actual materials and construction activities
observed, sampled, inspected or tested. Geocon will not be responsible for other parties’ interpretations or use of any information developed by Geocon. However, Geocon may
make certain inferences based upon the information derived from these procedures to formulate professional opinions regarding conditions in other areas.
ARTICLE 3 – STANDARD OF CARE
Services performed by Geocon under this Agreement are
expected by Client to be conducted in a manner consistent with the level of care and skill ordinarily exercised by members of the profession practicing contemporaneously
under similar conditions in the locality of the project (“Standard of Care”). Under no circumstance is any
warranty, expressed or implied, made in connection with the providing of services.
ARTICLE 4 – SITE ACCESS AND SITE
CONDITIONS
Client will grant or obtain free access to the Site for all equipment and personnel necessary for Geocon to perform the work set forth in this Agreement. Client will notify any and all possessors of the Site that Client has granted Geocon free access to the Site.
Client is responsible for accurately delineating the locations of all subterranean structures and utilities. Geocon will take reasonable precautions, in accordance with the Standard of Care, to avoid known subterranean structures, and Client waives any claim against Geocon, to the extent not caused by the negligence or willful misconduct of Geocon, and
agrees to defend, indemnify, and hold Geocon harmless from any claim or liability for injury or loss, including costs of defense, arising from damage done to subterranean structures and utilities not identified or accurately located. In addition, Client agrees to compensate Geocon for any time spent or expenses incurred by Geocon in defense of any such claim, with compensation to be based upon Geocon’s prevailing fee schedule and expense reimbursement policy.
Client hereby warrants that if Client knows or has any reason to assume or suspect that hazardous materials may exist at the Site, Client shall furnish or cause to be furnished to Geocon all documents and information known to Client that relate to the identity, location, quantity, nature or
characteristics of the hazardous condition, material, or waste at, on, or under the Site. If, during site visits, certain conditions are observed that may jeopardize Geocon’s (or others) health and safety, such conditions will be brought to the attention of the Client. Geocon will not direct, supervise
Client’s Initials Page 4 of 9 Geocon’s Initials
or control the work of non-Geocon contractors or their
subcontractors. Geocon’s services will not include a
review or evaluation of such contractor’s (or
subcontractor’s) safety measures, and Geocon shall have no responsibility for such work and/or safety at the jobsite regardless of whether Geocon provided safety training
services to those parties. Geocon shall be responsible only for its own activities and that of its employees and
subcontractors on any site, except where Geocon is
specifically retained to perform health and safety review services in which case Geocon’s responsibilities are limited to the express scope of those services.
In addition, Client will furnish or cause to be furnished such other reports, data, studies, plans, specifications, documents and other information on surface and subsurface site conditions required by Geocon for proper performance of its services. Geocon shall be entitled to rely upon
Client-provided documents and information in performing the services required under this Agreement; however,
Geocon assumes no responsibility or liability for their accuracy or completeness. Client-provided documents will remain the property of the Client.
ARTICLE 5 – MONITORING
If Geocon is retained by Client to provide a site
representative for the purpose of monitoring specific portions of the construction work or other field activities as set forth in the Proposal, then this provision applies. For the specified assignment, Geocon will report observations and
professional opinions to Client or Client’s agent. No action of Geocon or Geocon’s site representative can be construed as altering any Agreement between Client and others.
Geocon will report to Client or Client’s agent any observed work within Geocon’s scope of services which, in Geocon’s professional opinion, does not conform with plans and
specifications. Geocon has no right to reject or stop work of any agent or subcontractor of the Client. Such rights are reserved solely for Client. Furthermore, Geocon’s presence on the Site does not in any way guarantee the completion or quality of the performance of the work of any party retained by Client to provide field or construction-related services.
If Geocon is not retained by Client for the purpose of
monitoring construction work or field activities, Geocon will not be held liable or responsible for such activities or for the performance of the completed project. Monitoring of
construction work or field activities and the performance of the completed project is and will remain the sole and express responsibility of Client or other party designated by Client.
Client hereby agrees to indemnify and hold harmless Geocon from and against any loss or judgment, suffered by Geocon as a result of a claim or lawsuit resulting from Client’s failure to monitor construction work or field activities for which Geocon has not been retained.
Geocon will not be responsible for and will not have control or charge of specific means, methods, techniques, sequences or procedures of construction or other field activities selected by any agent or agreement of Client. It is mutually
understood and agreed by Client and Geocon that Geocon
has no control or enforcement ability over any persons or parties who are not employees of Geocon. Geocon does not purport to be, nor is Geocon responsible for any safety precautions or programs incident thereto for such nonemployees of Geocon.
ARTICLE 6 – DISCOVERY OF HAZARDOUS
CONDITIONS
Client represents that Client has made a reasonable effort to evaluate if hazardous materials are on or near the Site, and that Client has informed Geocon of Client’s findings relative to the possible presence of such materials.
Hazardous materials may exist at a site where there is no reason to believe they could or should be present. Geocon and Client agree that the discovery of unanticipated
hazardous materials constitutes a changed condition
mandating a renegotiation of the scope of work or
termination of services. Geocon and Client also agree that the discovery of unanticipated hazardous materials may
make it necessary for Geocon to take immediate measures to protect health and safety. Client agrees to compensate
Geocon for any equipment decontamination or other costs incident to the discovery of unanticipated hazardous
materials.
Geocon agrees to notify Client when unanticipated
hazardous materials or suspected hazardous materials are encountered. The Client, if not the owner of the Site,
warrants that he has notified the owner of the implications of our services, that the presence or suspected presence of hazardous conditions on the Site may require reporting
under federal, state and/or local regulations and, if required, it will be the owners’ responsibility to report this
information to the regulatory agencies. Geocon will not assume the responsibility for reporting the presence and release of hazardous materials/wastes/conditions on the Site to regulatory agencies.
Additionally, the Client, if not the owner of the Site, recognizes that the discovery of hazardous conditions or suspected hazardous conditions may result in a significant reduction in value of the Site and has notified the owner(s) of the Site of the potential ramifications of this assessment.
The Client also recognizes that this discovery of hazardous conditions or suspected hazardous conditions may spur the Site owner(s), if not the Client or potentially impacted neighboring site owners, to institute action against Geocon, and Client waives any claim against Geocon to the extent not caused by the negligence or willful misconduct of Geocon, and, to the maximum extent permitted by law, agrees to
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defend, indemnify, and save Geocon harmless from any such claim, liability, and/or defense costs for injury or loss arising from Geocon’s discovery of unanticipated hazardous
materials or suspected hazardous materials, including, but not limited to, any costs created by delay of the project and any cost associated with possible reduction in the property’s value.
ARTICLE 7 – DISPOSAL OF MATERIAL
It is understood and agreed that, unless specifically
negotiated in writing, Geocon is not, and has no
responsibility as, a handler, generator, operator, treater or storer, transporter or disposer of hazardous or toxic
substances found or identified at the Site, and that Client shall undertake or arrange for, either directly or indirectly through subcontractors, the handling, removal, treatment, storage, transportation and disposal of hazardous
substances or constituents found or identified at the Site.
Where applicable, Geocon will dispose of remaining soil and rock samples sixty (60) days after submission of the report covering those samples. Further storage or transfer of
samples can be made at Client’s expense upon Client’s prior written request.
ARTICLE 8 – GENERAL CONTRACTOR’S
PERFORMANCE
Geocon is not responsible for the general contractor’s
(“Contractor”) means, methods, techniques or sequences
during the performance of its work. Geocon will not
supervise or direct Contractor’s work, nor be liable for any failure of Contractor to complete its work in accordance with the project’s plans, specifications and applicable codes, laws and regulations. Client understands and agrees that Contractor, not Geocon, has sole responsibility for the safety of persons and property at the Site.
ARTICLE 9 – CONDITIONS OF
ASSESSMENT SERVICES
Where applicable, the Client should recognize that any
assessment services performed in support of this
Agreement shall not be considered and/or construed as a comprehensive site characterization. The findings and
conclusions in such reports will be predicated on the
information obtained through conducting the services
outlined in the written scope of services.
It should also be recognized that the services performed should not be interpreted as a statistical evaluation of the Site, but are rather intended to provide a preliminary
indication of impacts to the Site from the possible usage, generation, or release of hazardous contaminants. Also, if no significant indicators of the presence of hazardous
contaminants are encountered during our services, this does not preclude the presence of hazardous contaminants on the Site. A statistical evaluation of the Site would include a comprehensive sampling effort and laboratory analysis
program to provide a basis for estimating the potential for the presence of hazardous contaminants with a numerical confidence value.
The services shall only be deemed conclusive with respect to the tasks performed and the information obtained. No guarantee of the results of the services is implied within this Agreement.
ARTICLE 10 – CHANGED CONDITIONS
If Geocon discovers conditions or circumstances that it did not contemplate (“Changed Conditions”) at the time of this Agreement, it will give Client written notice of the
Changed Conditions. Client and Geocon will then
negotiate an appropriate amendment to this Agreement, or agree to perform such services on an additional services basis, in accordance with the hourly rates set forth in the Schedule of Fees attached hereto as Exhibit 2. If Geocon and Client cannot agree upon an amendment or
performance of such services on an additional services
basis within thirty (30) days after the notice, Geocon may terminate this Agreement and be compensated as set forth herein in Article 14, “Termination.”
ARTICLE 11 – CERTIFICATIONS
Client will not require Geocon to execute any certification regarding services performed or work tested or observed unless: 1) Geocon believes that it has performed sufficient services to provide a sufficient basis to issue the
certification; 2) Geocon believes that the services performed and work tested or observed meet the criteria of the
certification; and, 3) Geocon has reviewed and approved in writing the exact form of such certification prior to execution of this Agreement. Any certification by Geocon is limited to the expression of a professional opinion based upon the services performed by Geocon, and does not constitute a warranty or guarantee, either express or implied. Client agrees not to condition the resolution of any dispute upon Geocon signing a certification.
ARTICLE 12 – OWNERSHIP AND
LIMITATIONS OF DOCUMENTS
Unless otherwise specified in this Agreement or in an
Addendum, and provided that Geocon has been fully paid
for its services, Client shall have the right to use the documents, maps, photographs, drawings and specifications resulting from Geocon’s efforts on the project, for purposes reasonably contemplated by the parties. Geocon shall have the right, but shall not be obligated, to retain copies of all such materials and shall have the right to use the same for any purpose, unless such use would be expected to cause harm to Client. Client shall specify in advance, in writing, and be charged for all arrangements for special or
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extended-period maintenance of such materials by Geocon.
Geocon retains the right of ownership with respect to any patentable concepts or copyrightable materials arising from its services.
The information contained in reports generated by Geocon is only valid as of the date of issue and as the information relates to the Site and services performed. The information presented in the reports must not be relied upon for
purposes other than those conveyed therein. Other parties relying on the information contained in the reports are subject to the terms and conditions of this Agreement.
Re-use of any material described by Client, including
provision or publication to third parties, on extensions of this project or on any other project without Geocon’s
written authorization shall be at Client’s and third parties’ risk, and Client agrees to indemnify, defend, and hold
harmless Geocon from all claims, damages, and expenses, including attorneys’ fees, arising out of such unauthorized re-use to the fullest extent permitted under California law.
ARTICLE 13 – BILLING AND PAYMENT
Client will pay Geocon in accordance with the procedures indicated in the Proposal and its attachments. Invoices will be submitted to Client by Geocon, and will be due and
payable upon presentation. Payment shall not be
contingent upon Client’s compensation for these services from their client or other third party. If Client objects to all or any portion of any invoice, Client will so notify Geocon in writing within fourteen (14) calendar days of the invoice date, identify the cause of disagreement, and pay, when due, that portion of the invoice not in dispute. The parties will immediately make every effort to settle the disputed portion of the invoice. In the absence of written
notification described above, the balance as stated on the invoice will be paid.
Invoices are delinquent if payment has not been received within thirty (30) days from date of invoice. Client will pay an additional charge of one-and-one-half (1.5) percent per month (or the maximum percentage allowed by law,
whichever is higher) on any delinquent amount, excepting any portion of the invoiced amount in dispute and resolved in favor of Client. Payment thereafter will first be applied to accrued interest and then to the principal unpaid amount. All time spent and expenses incurred (including any attorney’s fees and costs) in connection with collection of any
delinquent amount will be paid by Client to Geocon per
Geocon’s current fee schedule. In the event Client fails to pay Geocon within sixty (60) days after invoices are
rendered, Client agrees that Geocon will have the right to declare Client in major breach of this Agreement and cease all work on the project. At Geocon’s option, Geocon may waive said major breach upon payment by Client of all
arrearages and outstanding invoices.
ARTICLE 14 – TERMINATION
This Agreement may be terminated by either party seven
(7) days after written notice in the event of any breach of any provision of this Agreement or in the event of
substantial failure of performance by the other party, or if Client suspends the work for more than three (3) months.
In the event of termination, Geocon will be paid for
services performed prior to the date of termination plus reasonable termination expenses, including, but not limited to the cost of completing analyses, records, and reports necessary to document job status at the time of termination.
If Geocon for any reason does not complete all of the
services contemplated by this Agreement, Geocon cannot
be responsible for the accuracy, completeness, or
workability of the contract documents prepared by Geocon if used, changed, or completed by Client or by another
party. Accordingly, Client agrees, to the fullest extent permitted by law, to indemnify and hold Geocon harmless from any and all claims, liability, or cost (including
reasonable attorneys’ fees and defense costs) for injury or loss arising or allegedly arising from such use, completion, or any unauthorized changes made by any party to any
contract documents prepared by Geocon pursuant to this
Agreement.
ARTICLE 15 – RISK ALLOCATION
Many risks potentially affect Geocon by virtue of entering into this Agreement to perform professional engineering services on behalf of Client. The principal risk is the potential for human error by Geocon. In order for Client to obtain a lower fee from Geocon, among other benefits, and in order for Geocon to reduce its residual risk created by providing services to Client, Client and Geocon agree as follows:
1. Client and Geocon shall allocate certain of the risks so that, to the fullest extent permitted by law, Geocon’s
(the term “Geocon” includes Geocon’s partners,
officers, directors, employees, agents, affiliates,
subcontractors and subconsultants) total aggregate
liability to Client is limited to the greater of $60,000 or the total compensation received from Client by Geocon
for services rendered on this project for any and all of Client’s injuries, damages, claims, losses, expenses, or claim expenses arising out of this Agreement from any
cause or causes, including attorneys’ fees and costs
which may be awarded to the prevailing party, and
Client agrees to indemnify and hold harmless Geocon
from and against all liabilities in excess of the
monetary limit established above;
2. Client and Geocon shall allocate certain of the other risks so that, to the fullest extent permitted by law,
Client shall limit Geocon’s total aggregate liability to all
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third parties, including contractors, subcontractors of all tiers, materialmen, and others involved in Client’s
project, as well as persons and other entities
not involved in the project, to the greater of $120,000 or the total compensation received from Client by
Geocon for services rendered on this project for any
and all injuries, damages, cause or causes, including
attorneys’ fees and costs which may be awarded to the
prevailing party, and Client agrees to indemnify
and hold harmless Geocon from and against all
liabilities in excess of the monetary limit
established above, including all liability incurred
by Geocon for acts, errors, or omissions,
pursuant to entering into agreements with third
parties on behalf of Client in order to obtain
access or entry onto property not owned by
Client. Client agrees to notify all contractors
and subcontractors of any limitation of
Geocon’s liability to them, and require them to
abide by such limitation for damages suffered by any
contractor or subcontractor arising from Geocon’s
actions or inactions. Neither the contractor nor any
subcontractor assumes any liability for damages to
others which may arise on account of Geocon’s actions
or inactions; and
3. Client understands that dollar limits higher than those indicated may be available. If Client wishes to discuss other limits, and the resulting impact on Geocon’s
retained risk and fee, Client shall so notify Geocon in writing. If Client fails to issue such notification prior to accepting this Agreement, through signature or, without signature, by verbally or in writing authorizing Geocon to commence services, Client shall be deemed to have
accepted the limits indicated above.
Limitations on liability and indemnities in this Agreement are business understandings between the parties
voluntarily and knowingly entered into, and shall apply to all theories of recovery including, but not limited to, breach of contract, warranty, tort (including negligence), strict or statutory liability, or any other cause of action, except for willful misconduct or gross negligence. The Parties also agree that Client will not seek damages in excess of
limitations indirectly through suits with other parties who may join Geocon as a third party, nor by an award or
attorneys’ fees and costs to the prevailing party in excess of the aggregate liability agreed upon herein by the parties. “Parties” means Client and Geocon and their partners,
officers, directors, employees, agents, affiliates,
subcontractors and subconsultants.
Both Client and Geocon agree that they will not be liable to each other, under any circumstances, for special, indirect, consequential, or punitive damages arising out of or
related to this Agreement. This provision takes precedence over any conflicting provisions of this Agreement.
ARTICLE 16 – INDEMNIFICATION
If any claim is brought against Geocon, its employees,
agents, and subcontractors and/or Client by a third party, relating in any way to the services, the contribution and indemnification rights and obligations of Geocon and
Client, subject to Article 15 entitled “Risk Allocation,” such claim shall be determined as follows:
1. If any negligence, breach of contract, or willful
misconduct of Geocon caused any damage, injury, or
loss claimed by the third party, then Geocon and Client shall each indemnify the other against any loss or
judgment on a comparative responsibility basis under
comparative negligence principles (Client
responsibility to include that of its agents, employees, and other contractors); and
2. Unless Geocon was liable for negligence, breach of
contract, or willful misconduct which in whole or in
part, caused the damage, injury, or loss asserted in the third party claim, Client shall indemnify Geocon
against the claim, liability, loss, legal fees, consulting fees, and other costs of defense reasonably incurred.
Notwithstanding the foregoing, for any claim alleging
Geocon’s negligent performance of professional services, Geocon’s obligations regarding Client’s defense under this Section shall be limited solely to the reimbursement of Client’s reasonable defense costs incurred, in proportion to the extent determined by a trier of fact to have been actually caused by the negligence or willful misconduct of Geocon.
ARTICLE 17 – THIRD PARTY RELIANCE
If Client requests that Geocon’s work product be relied upon by a third party, including, but not limited to, a lender, Client specifically agrees to provide the third party with a copy of this Agreement and Geocon’s Reliance Letter template (to be furnished upon request) and Client agrees to limit Geocon’s total liability to Client and any third party as described in the section entitled “Risk Allocation” above. Furthermore,
Client agrees to defend and indemnify Geocon from any and all third party claims, damages, costs, and losses arising out of or in any way related to such third party’s reliance on the services that are the subject of this Agreement, per the above-referenced sections entitled “Risk Allocation” and “Indemnification.” Any third party which accepts Geocon’s work product does so under the strict understanding that the third party is bound by all provisions in this Agreement including, but not limited to, the provisions of the “Risk Allocation” and “Indemnification” sections above, and this section, as though the third party was a signatory thereto. In addition, every report, recommendation, finding, or
conclusion issued by Geocon shall be subject to the
limitations stated therein.
Client’s Initials Page 8 of 9 Geocon’s Initials
ARTICLE 18 – INSURANCE
Geocon and Client agree to maintain during the
performance of the services: (1) statutory Workers’
Compensation coverage, (2) Commercial General Liability coverage in the sum of not less than $1,000,000 per
occurrence and $2,000,000 in the aggregate, and (3)
Automobile Liability insurance coverage in the sum of not less than $1,000,000 single limit.
ARTICLE 19 – PREVAILING WAGE OBLIGATIONS
Client shall notify Geocon in writing if the services subject to this Agreement constitutes a “public work” under any and all federal, state, and/or local prevailing wage laws, and/or living wage laws and/or ordinances, including, but not limited to, the Davis-Bacon Act and the provisions of California Labor Code § 1720 et seq. In addition, Client shall notify Geocon if Geocon is obligated by statute, any public contracting authority, and/or a developer to pay prevailing wages and benefits and/or any other
predetermined wages or benefits (collectively, “prevailing wage obligations”). In the event that Geocon must adhere to federal, state, and/or local prevailing wage obligations for work performed, Client shall provide Geocon with any and all prevailing wage determinations applicable to the work to be performed by Geocon. Client understands and
agrees that Geocon’s fee for services performed under this Agreement will be calculated, in part, on the basis of
representations by Client regarding the existence and
amount of any and all prevailing wage obligations and that, if such obligations exist, Geocon’s fee might be different.
Client shall also be responsible for informing Geocon
within ten (10) days of commencement of services whether certified payroll records are required to be submitted.
Client further understands and agrees that Geocon will rely on the representations made by Client with regard to
prevailing wage obligations and Client agrees to defend, indemnify and hold harmless Geocon against any and all
claims, liabilities, suits, demands, losses, costs, and expenses, including but not limited to, reasonable
attorneys’ fees and all legal expenses and fees, fines, penalties, or sanctions, arising from Geocon’s reliance upon Client’s representations regarding prevailing wage obligations.
ARTICLE 20 – ASSIGNMENTS
Neither party to this Agreement shall assign its rights, duties, and obligations hereunder without the prior written consent of the other party.
ARTICLE 21 – CONFIDENTIALITY
Geocon, upon Client’s request, shall have its employees, agents, and subcontractors sign reasonable and customary confidentiality agreements furnished by Client.
ARTICLE 22 – DELAYS
In the event that Geocon field or technical work is suspended due to causes outside of its control, Geocon shall be
equitably compensated (in accordance with Geocon’s current schedule of fees and conditions) for the additional labor, equipment, and other charges associated with maintaining its workforce and equipment available during the suspension (if directed to do so by the Client), or at the Client’s option, for such similar charges that are incurred by Geocon for
demobilization and subsequent remobilization. In no event shall Geocon be required to maintain a field force in standby status in the field for a period of five (5) calendar days.
ARTICLE 23 – MEDIATION/ARBITRATION
In an effort to resolve any conflicts (other than payment disputes) that arise during the design and construction of the project or following the completion of the project, arising out of or relating to this Agreement, or the breach thereof, which cannot be settled through direct discussions, Client and Geocon agree to first endeavor to settle the dispute in an amicable manner by non-binding mediation administered by J.A.M.S. or the American Arbitration Association under its Construction Industry Mediation Rules, before resorting to arbitration. Thereafter, any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by J.A.M.S. or the American Arbitration Association in
accordance with its Commercial Arbitration Rules, and
judgment upon the Award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The Parties agree to share the mediator’s and arbitrator’s fees equally. If the dispute is arbitrated, the arbitrator may include in any award the right to recover mediator and
arbitrator fees, along with any other recoverable costs. The prevailing party in any arbitration may, in the arbitrator’s discretion, be entitled to an award of attorneys’ fees incurred in arbitrating the dispute.
The Client and Geocon further agree to include a similar mediation/arbitration provision in all agreements with
independent contractors and consultants retained for the project and to require all independent contractors and
consultants also to include a similar mediation provision in all agreements with their subcontractors, subconsultants, suppliers and fabricators, thereby providing for mediation as the primary method for dispute resolution among the parties to all those agreements.
ARTICLE 24 – FAIR CONSTRUCTION
This Agreement will be construed as a whole in accordance with its fair meaning and without regard to California Civil Code §1654 or similar statutes.
Client’s Initials Page 9 of 9 Geocon’s Initials
ARTICLE 25 – GOVERNING LAW, WAIVER
AND SURVIVAL
The law of the State of California will govern the validity of this Agreement, its interpretation and performance.
Waiver by either party of any breach of this Agreement will not constitute a waiver of any subsequent breach of the same or any other provision.
If any of the provisions contained in this Agreement are held illegal, invalid, or unenforceable, the enforceability of the remaining provisions will not be impaired. Risk allocation and indemnities will survive termination or failure of this Agreement for any cause.
The parties have read or had the opportunity to read the foregoing, including all attachments, addendums, and
exhibits hereto, have had an opportunity to discuss the same, completely understand the terms, and willingly enter into this Agreement which will become effective on the date signed below by Client.
ACKNOWLEDGMENT
CLIENT:
Authorized By:
Print Name:
Title:
Date:
GEOCON WEST, INC.
Authorized By:
Print Name:
Title:
Date:
2023 SCHEDULE OF FEES
PROFESSIONAL SERVICES
Word Processor/Non-Technical Assistant/Draftsman/Dispatcher .................................................................................................... $95/hr Engineering Assistant/Lab Technician. ............................................................................................................................................. 95/hr Engineering Field Technician (Earthwork/Compaction Testing/Backfill) ........................................................................................ *85/hr Special Inspector (Concrete, Rebar, Masonry, Welding, etc.) .......................................................................................................... *90/hr Engineering Inspector (Bottom Approval / Shoring / Foundations / Piles) ....................................................................................... *110/hr LA City Deputy Grading Inspector (Bottom Approval / Shoring / Foundations / Piles) .................................................................. *125/hr Staff Engineer/Geologist ................................................................................................................................................................... *125/hr Senior Staff Engineer/Geologist ....................................................................................................................................................... *135/hr Project Engineer/Geologist ............................................................................................................................................................... *145/hr Senior Project Engineer/Geologist .................................................................................................................................................... *155/hr Senior Engineer/Geologist ................................................................................................................................................................ *175/hr Associate Engineer/Geologist ........................................................................................................................................................... *200/hr Principal Engineer/Geologist/Litigation Support .............................................................................................................................. 400/hr Attorney Fees (General) .................................................................................................................................................................... 500/hr Deposition or Court Appearance ....................................................................................................................................................... 550/hr Overtime/Saturday Rate/Night Rate (7pm – 6am w/ 8-Hour minimum per call out) ....................................... 1.5 X Regular Hourly Rate Sunday and Holiday Rate ..................................................................................................................................... 2 X Regular Hourly Rate Minimum Field Services Fee per call-out, 4 Hours (if 4 hours or less), 8 Hours (if more than 4 hours and less than 8 Hours) Short-Notice Cancellation, 4 Hours (if after 4 pm of the day prior to the scheduled inspection time) Short-Notice Cancellation, 4 Hours (upon or after arrival at jobsite) *Prevailing Wage (PW) California Labor Code §1720, et. Seq add $50/hr TRAVEL
Personnel ......................................................................................................................................................................... Regular Hourly Rate Subsistence (Per Diem) .................................................................................................................................................................... $300/day Vehicle Mileage ............................................................................................................................................................................. 0.75/mile
EQUIPMENT, MATERIALS, & ANALYTICAL TESTS
Nuclear Density Gauge / Sand Cone Testing Equipment ....... $10/hr 55-Gallon Drum .................................................................... 120/ea Vehicle ..................................................................................... 10/hr Visqeen (6 mil 20X100’) ..................................................... 135/roll Special Inspection Equipment ................................................... 5/hr Traffic Cones/Barricades ......................................................35/day Asphalt Cold Patch/Concrete ................................................ 30/bag TPHg(EPA 8015B) ................................................................. 70/ea Double Ring Infiltrometer Equipment ................................ 200/day TPHd/TPHmo .................................................. (EPA 8015M) 75/ea GPS Unit ............................................................................. 160/day TPH Carbon Chain Breakdown .................... (EPA 8015M) 110/ea Pick-up Truck ..................................................................... 150/day Water Buffalo........................................................................ 75/day Dynamic Cone Penetrometer .............................................. 400/day Methanol and/or Ethanol (EPA 8015M) ............................... 125/ea Volatile Organic Compounds ....................... (EPA 8260B) 125/ea Semi-Volatile Organic Compounds .................. (EPA 8270) 225/ea Hand-Auger .......................................................................... 50/day PAHs (EPA 8270SIM) ......................................................... 185/ea Distilled Water (5-gallon) ...................................................... 20/ea Bailer (Reusable) .................................................................. 35/day CAM 17 Metals (EPA 6010B) ............................................. 170/ea Single Metal .................................................... (EPA 6010B) 30/ea Bailer (Disposable) ................................................................. 15/ea Hexavalent Chrome (EPA 7199) ............................................ 75/ea Stainless Sampling Pump ................................................. $150/day Battery-Powered Pump ........................................................ 75/day Organochlorine Pesticides (EPA 8081) ................................ 110/ea Organophosphorus Pesticides (EPA 8141) ........................... 125/ea Water Level Indicator .......................................................... 40/day Interface Probe ................................................................... 125/day Photo-Ionization Meter ...................................................... 150/day Combustible Gas Meter ..................................................... 150/day Chlorinated Herbicides (EPA 8151) ..................................... 125/ea PCBs (EPA 8082) ................................................................... 95/ea Soil pH (EPA 9045C) .............................................................. 20/ea WET or TCLP Extraction ....................................................... 85/ea pH/Conductivity/Temperature Meter ................................. 150/day Turbidity Meter .................................................................... 80/day Air Sampling Pump .............................................................. 80/day Level D PPE/Decon Rinse Equipment ................................. 50/day Concrete Coring Equipment ............................................... 285/day Generator or Air Compressor ............................................. 150/day EPA 5035 Sample Kits ........................................................... 40/ea Asbestos (PLM) ...................................................................... 25/ea Asbestos (400-point count) ...................................................... 50/ea Sample Compositing ................................................ 20/composite 48-hour Turnaround Time ....................................... 60% surcharge 72-hour Turnaround Time ....................................... 40% surcharge
- 2 -
LABORATORY TESTS*
COMPACTION CURVES SOIL AND AGGREGATE PROPERTIES
(D698/D1557/T99/T108) 4-inch mold................................ $300/ea (D422/T88) Particle Size, Hydrometer w/out Sieve ............ $250/ea (D698/D1557/T99/T108) 6-inch mold.................................. 300/ea (C136/D6913/T27) Sieve, Coarse to Fine w/ #200 Wash ..... 175/ea (CT 216) California Impact .................................................. 300/ea (C136/D6913/T27) Sieve, Coarse or Fine w/ #200 Wash ..... 150/ea Check Point........................................................................... 125/ea (C136/D6913/T27) Sieve, Coarse or Fine No #200 Wash .... 125/ea (D1632/CT312) Soil Cement Cyl. Fabrication (Set of 3) ... 200/set (C117/D1140/T11) Materials Finer than #200 ...................... 115/ea (D1632/CT312) Soil Cement Cyl. Fabrication (Addtl. Spec.) 75/ea (D2216/T265/CT226) Moisture Content ................................. 40/ea (D1633/CT312) Soil Cement Comp. Strength (Set of 3) .... 350/set (D2487/D2488) Visual Soil Classification .............................. 40/ea (D1633/CT312) Soil Cement Comp. Strength (Addtl. Spec.) 125/ea (D2937) Density of In-Place Soil, Drive-Cyl. Method ........... 50/ea SOIL AND AGGREGATE STABILITY (D4943) Shrinkage Factors of Soils, Wax Method ................. 75/ea (D2844/CT301) Resistance Value ...................................... $350/ea (C131/C535/CT211) L.A. Abrasion Resistance .................. $250/ea (D2844/CT301) Resistance Value, Treated .......................... 350/ea (C142/T112) Clay Lumps and Friable Particles .................... 155/ea (D1883) California Bearing Ratio ........................................ 600/ea SOIL AND AGGREGATE PROPERTIES (CONTD.) (C977) Stabilization Ability of Lime .................................... 185/ea (C123/T113) Light Weight Particles ..................................... 250/ea (D1883) Calif. Bearing Ratio (Army Corp of Engineers) .... 600/ea (D3744/CT229/T210) Durability Index Fine ........................ 200/ea CHEMICAL ANALYSIS (D3744/CT229/T210) Durability Index Coarse .................... 200/ea (G187/CT643/T288) pH and Resistivity ............................. $175/ea (CT227) Cleanness Value ..................................................... 200/ea (D4972/T289) pH Only .......................................................... 75/ea (D4791) Flat & Elongated Particles ...................................... 175/ea (CT417) Sulfate Content ....................................................... 125/ea (D693/CT205) Percent Crushed Particles ............................. 200/ea (CT422) Chloride Content .................................................... 125/ea (D5821) Percent. of Fractured Particles, Coarse Aggregate .. 200/ea (D2974) Organic Content ..................................................... 100/ea (C40/CT213/T21) Organic Impurities ................................... 100/ea PERMEABILITY, CONSOLIDATION AND EXPANSION (C235) Soft Hardness (Scratch Hardness) ............................ 125/ea (D5084) Permeability, Flexible Wall .................................. $270/ea (C88/CT214/T104) Sulfate Soundness ................................. 500/ea (D5856) Permeability, Rigid Wall ........................................ 260/ea (C1252/T304) Uncompact. Void Content, Fine Aggregate ... 175/ea (D2434) Permeability, Constant Head .................................. 280/ea (C127/CT206/T85) Coarse Specific Gravity ......................... 150/ea (D2434) Permeability, FHA Slab-on-Grade ......................... 110/ea (C128/CT207/T84) Fine Specific Gravity............................. 175/ea (D2434) Permeability, Hourly ................................................ 55/ea (D854/CT209/T100) Specific Gravity of Soil ....................... 200/ea (D2435/T216) Consolidation (6 pts. w/ Unload) ................ $400/ea (C29/CT212/T19) Unit Weight & Percent Voids ................. 125/ea (D2435/T216) Consolidation Additional Point w/ Unload ... $90/ea (D2419/CT217/T176) Sand Equivalent ................................ 150/ea (D4546) Swell/Compression Testing & Density .................. 125/ea (D4318/CT204/T89/T90) Plastic Index (Plastic/Liq. Limit) 250/ea (D4546) Swell/Settlement Testing & Density (ea. addtl. pt.) 85/ea (D4318/CT204/T89) Liquid Limit ........................................ 125/ea (D4546) Swell/Settlement Testing & Density (County) ....... 100/ea (D4318/CT204/T90) Plastic Limit ........................................ 125/ea (D4546) Swell/Settlement Testing & Density (FHA) ............ 90/ea (C330) Spec. for Lightweight Aggregates, Struc. Concrete ... Quote (D4829) Expansion Index of Soils ........................................ 250/ea SHEAR STRENGTH STEEL TESTING (D2166) Unconfined Compression ..................................... $100/ea Reinforcing Steel Tests: (D3080/T236) Direct Shear (3 points) ................................ 350/set (A370) Tensile Strength & Elongation (D3080/T236) Direct Shear Addtl. Points/ea. residual pass $125/ea #11 Bar & Smaller ............................................... $100/ea (D2850) Unconsolidated-Undrained Triaxial Shear .............. 115/ea #14 Bar ................................................................ $125/ea (D2850) Unconsolidated-Undrained Triaxial Staged ............ 160/ea #18 Bar (Proof Test) ........................................... $150/ea (D4767) Consolidated-Undrained Triaxial Shear.................. 265/ea (A370) Bend Test (D4767) Consolidated-Undrained Triaxial Staged ................ 340/ea #11 Bar & Smaller ................................................. $50/ea (EM1110) Consolidated-Drained Triaxial Shear .................. 375/ea #14 & #18 Bar ....................................................... $75/ea (EM1110) Consolidated-Drained Triaxial Staged ................. 480/ea (A370) Tensile - Mechanically Spliced Bar MASONRY**
#11 Bar & Smaller ............................................... $175/ea Concrete Block Test (Sets of 3 Required):
#14 Bar & Larger ................................................. $225/ea (C140) Unit Weight Moisture Content & Absorption ......... $350/ea (A370) Tensile – Electric Resist. Butt Splice w/ Control ..... 175/ea (C140) Moisture Content/Absorption (ea. addtl. specimen) 125/ea (A370) Straightening of bar (if required) ................................ 50/ea (C140) Compression Test ..................................................... 300/ea Structural Steel Tests: (C140) Compression Test (ea. addtl. specimen) .................. 125/ea (A370) Machining & Prep of Test Specimen ............... Cost + 20% (C426) Linear Drying Shrinkage ........................................... 350/ea (A370) Tensile Strength & Elongation (C109/UBC 21-16) Mortar Cylinder (2”x4”) ......................... 30/ea Up to 200,000 lbs ................................................. $125/ea (C942) Grout Prism (3”x3”x6”), trimming included ............... 35/ea 200,000 – 300,000 lbs ............................................ 150/ea Masonry Prism (Assemblage):
300,000 – 400,000 lbs ........................................................... 175/ea (C1314) 8”x8”x16” – 8”x12”x16” ..................................... $200/ea Pre-stressing Wire & Tendon Tests: (C1314) 8”x16”x16” – 10”x12”x16” ................................... 225/ea (A421) Tensile Strength, Single Wire................................. $175/ea (C1314) 12”x12”x16” – 12”x16”x16” ................................. 250/ea (A416) Tensile Strength, 7-Wire Strand ............................. $200/ea (C1314) Larger than 12”x16”x16” ........................................ Quote
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LABORATORY TESTS* (CONTINUED)
High Strength Bolt, Nut, & Washer Tests: Brick Test (Set of 5 Specimens):
(A325/A490) Tensile Test on Bolts .................................... $100/ea (C67) 24-Hour Absorption, Cold Water ............................. $250/set (A563) Proof Load Test on Nuts ........................................ $100/ea (C67) 5-Hour Absorption, Boiling Water .......................... $250/set (A325/A490) Hardness Test on Bolts ................................... $50/ea (C67) Compression Test or Modulus of Rupture ............... $300/set (A536) Hardness Test on Nuts .............................................. $50/ea (C67) Each Additional Specimen ........................................ $100/ea (F436) Hardness Test on Washers ........................................ $50/ea CONCRETE** Weld Specimen Tests: Mix Designs:
(E164) Ultrasonic Examination .............................. Quote (ACI211/ACI214) Concrete Mix Design ............................ $450/ea Machining & Prep of Test Specimen ............................ Cost + 20% (ACI211/ACI214) Review of Concrete Mix Design ........... $450/ea (E381) Macrotech Test (3 Faces) ............................................ $355 (C192) Concrete Trial Mix (includes equipment & labor) .. $650/ea ASPHALT TESTING Concrete Properties:
Asphalt Properties: (C39/CT521/T22) Comp. Strength, Concrete Cyl................. $30/ea (D2726/CT308/T166) Bulk Spec. Grav. Compacted HMA $100/ea (C42/CT521/T22) Comp. Strength, Concrete/Gunite Core ... $60/ea (D1560/CT366) Stabilometer Value (HVEEM) ................ $225/ea (C78/CT523) Flex. Strength of 6”x6”x21” Concrete Beam .. 125/ea (D2041) Theoretical Max Specific Gravity ........................ $200/ea (C174) Length Measuring of Drilled Cores ........................ $100/ea (D5444) Sieve Analysis of Extracted Asphalt .................... $250/ea (C1140) Shotcrete Panel-Coring & Testing (Set of 3) ....... $350/set (D6307/CT382) Percent Asphalt, Ignition Method............. $175/ea (C1140) Shotcrete Panel (each addtl. specimen) ................. $125/ea (D1188) Unit Weight of Asphalt Core .................................. $95/ea (C496) Static Modulus of Elasticity .................................... $250/ea MISCELLANEOUS TESTING SERVICES (C496) Drying Shrinkage (Set of 3, up to 28 days) ............ $650/set Calibration of Hydraulic Ram: (C642) Spec. Gravity, Absorp., Voids in Hardened Concrete . 95/ea 100 Ton & Under ................................................................ $250/ea 101 Tons – 200 Tons ............................................................ 350/ea (F1869) Vapor Emission Rate, Concrete Subfloor .................. 50/ea Use of Universal Testing Machine:
UTM with One Operator .................................................... $400/ea Additional Technician ...................................... Regular Tech Rate Spray Applied Fireproofing:
(E605/E736) Fireproofing Oven Dry Density/Thickness ... $125/ea *2X Surcharge on rush turn-around for laboratory testing. **Fee applies for sample storage, testing, or disposal.
1. Listed are typical charges for the services most frequently performed by Geocon. Prices for unlisted services as well as special quotations for programs involving volume work will be provided upon request. Laboratory test prices shown are for laboratory work only, and include reporting of routine results not calling for comments, recommendations or conclusions.
2. Sampling and testing is conducted in substantial conformance with the latest applicable or designated specifications of the American Society for Testing and Materials, Caltrans, American Association of State Highway and Transportation Officials, or other pertinent agencies.
3. Saturday, night work, and overtime hours are charged at time and one-half; Sundays and holidays at double time. Per diem is $155.00 per day when location of work dictates.
4. Equipment and materials will be billed at cost plus 15%. Outside services including subcontractors and rental of special equipment are billed at cost plus 15%. Hourly services are billed portal to portal from closest office in accordance with the stated hourly rates herein, with a minimum two-hour charge
5. Invoices will be submitted at four-week intervals. Terms of payment are met upon presentation of invoice. Invoices become delinquent thirty (30) days from invoice date and subject to one and one-half percent (1-1/2%) service charge per month, or the maximum rate allowed by law, whichever is lower. If Client objects to all or any portion of any invoice, Client will so notify Geocon in writing within fourteen (14) calendar days of the invoice date, identify the cause of disagreement, and pay that portion of the invoice not in dispute. The parties will immediately make every effort to settle the disputed portion of the invoice. Payment on delinquent invoices will first be applied to accrued interest and then to the principal amount. All time spent and expenses incurred (including any attorney's fees and costs) in connection with collection of any delinquent amount will be paid by Client to Geocon per Geocon's current fee schedule.
6. Client and Geocon shall allocate certain of the risks so that, to the fullest extent permitted by law, Geocon’s (the term “Geocon” includes Geocon’s partners, officers, directors, employees, agents, affiliates, subcontractors and subconsultants) total aggregate liability to Client is limited to the greater of $60,000 or the total compensation received from Client by Geocon for services rendered on this project, for any and all of Client’s injuries, damages, claims, losses, expenses, or claim expenses arising out of this Agreement from any cause or causes, including attorneys’ fees and costs which may be awarded to the prevailing party, and Client agrees to indemnify and hold harmless Geocon from and against all liabilities in excess of the monetary limit established above.
7. Client and Geocon shall allocate certain of the other risks so that, to the fullest extent permitted by law, Client shall limit Geocon’s total aggregate liability to all third parties, including contractors, subcontractors of all tiers, materialmen, and others involved in Client’s project, as well as persons and other entities not involved in the project, to the greater of $120,000 or the total compensation received from Client by Geocon for services rendered on this project, for any and all injuries, damages, cause or causes, including attorneys’ fees and costs which may be awarded to the prevailing party, and Client agrees to indemnify and hold harmless Geocon from and against all liabilities in excess of the monetary limit established above, including all liability incurred by Geocon for acts, errors, or omissions, pursuant to entering into agreements with third parties on behalf of Client in order to obtain access or entry onto property not owned by Client. Client agrees to notify all contractors and subcontractors of any limitation of Geocon’s liability to them, and require them to abide by such limitation for damages suffered by any contractor or subcontractor arising from Geocon’s actions or inactions. Neither the contractor nor any subcontractor assumes any liability for damages to others which may arise on account of Geocon’s actions or inactions.
(Client/Name of Entity or Person)
Date: ____________________
Geocon West, Inc.
500 North Victory Boulevard
Burbank, CA 91502
Subject: GEOCON PROPOSAL NO.: ________________________________________ CLIENT PROJECT NO.: ________________________________________ PROJECT LOCATION: ________________________________________ ________________________________________
Dear Geocon West, Inc.:
________________________________________ (“Client/Entity”) has requested that Geocon West, Inc. (“Geocon”) provide professional engineering, environmental or health sciences services relative to the above project. Client/Entity has been advised by Geocon that California Business and Professions Code §6749 requires that the client execute a contract setting forth the relevant contract terms prior to Geocon commencing any work or performing any services for the benefit of Client/Entity relative to the subject project.
I hereby state that I am a duly authorized agent or representative Client/Entity and that I am fully empowered to and do knowingly waive the provisions of Business and Professions Code §6749 on behalf of Client/Entity and request that Geocon commence work and perform the professional services outlined in the subject Geocon Proposal dated ______________.
Very truly yours,
By: ________________________________________
Authorized Agent/Representative
of: ________________________________________
§ 6749 Professional engineer; written contract for services; contents (a) A professional engineer shall use a written contract when contracting to provide professional engineering services to a client pursuant to this chapter. The written contract shall be executed by the professional engineer and the client, or his or her representative, prior to the professional engineer commencing work, unless the client knowingly states in writing that work may be commenced before the contract is executed. The written contract shall include, but not be limited to, all of the following:
(1) A description of the services to be provided to the client by the professional engineer.
(2) A description of any basis of compensation applicable to the contract, and the method of payment agreed upon by the parties.
(3) The name, address, and license or certificate number of the professional engineer, and the name and address of the client.
(4) A description of the procedure that the professional engineer and the client will use to accommodate additional services.
(5) A description of the procedure to be used by any party to terminate the contract. (b) This section shall not apply to any of the following:
(1) Professional engineering services rendered by a professional engineer for which the client will not pay compensation.
(2) A professional engineer who has a current or prior contractual relationship with the client to provide engineering services, and that client has paid the professional engineer all of the fees that are due under the contract. (3) If the client knowingly states in writing after full disclosure of this section that a contract which complies with the requirements of this section is not required. (4) Professional engineering services rendered by a professional engineer to any of the following:
(A) A professional engineer licensed or registered under this chapter. (B) A land surveyor licensed under Chapter 15 (commencing with Section 8700).
(C) An architect licensed under Chapter 3 (commencing with Section 5500). (D) A contractor licensed under Chapter 9 (commencing with Section 7000). (E) A geologist or a geophysicist licensed under Chapter 12.5 (commencing with Section 7800).
(F) A manufacturing, mining, public utility, research and development, or other industrial corporation, if the services are provided in connection with or incidental to the products, systems, or services of that corporation or its affiliates.
(G) A public agency.
(c) “Written contract” as used in this section includes a contract that is in electronic form.
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Staff Report
06/04/2024 Page 1 of 3
STAFF REPORT
Date: June 4, 2024
To: Honorable Mayor and Council Members
From: Alfonso Noyola, City Manager
Prepared by: Paloma McEvoy, Assistant City Attorney
Subject: Approval of the First Amendment to the Purchase and Sale Agreement for the property located at 8420 Atlantic Avenue, in Cudahy, California
RECOMMENDATION
Staff recommends that the City Council take the following actions:
1. Approve the First Amendment to the Purchase and Sale Agreement (Attachment A) for the real property located at 8420 Atlantic Avenue, Cudahy, California (Assessor Parcel Numbers: 6224-034-014; 6224-034-032; 6224-034-040; and 6224-034-041) (“Property”), and authorize the City Manager to execute all related documents; and
2. Determine that the Project is exempt from the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15061(b)(3) (Common Sense Exemption).
BACKGROUND
1. On November 15, 2022, the City Council approved Resolution No. 22-66 declaring the City’s intent to sell the Property and setting a public hearing to approve the Purchase and Sale Agreement (“PSA”) on December 6, 2022.
2. On December 6, 2022, the City Council approved a PSA with a nonprofit public benefit corporation (“Developer”) for the purpose of developing the Property into a mixed-use development for lower-income households. Pursuant to the PSA, the Project is anticipated to include up to approximately one hundred and forty-eight (148) units of affordable housing reserved for income eligible senior citizens, pursuant to a recorded affordability covenant records against title, covenants and restrictions reasonably acceptable to the City and other public agencies, as identified in Paragraph 4.3.7(a)-(d), and mixed-use office space for medical treatment and continuum of care, including an adult care facility, public social services, and space for community non-profit organizations.
Item Number
14B
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3. As a part of the post-closing conditions, the Developer is required to:
a. enter into a development agreement with the City by July 1, 2024, that will address (i) occupancy restrictions relating to income, age, disability, homeless, and other relevant and appropriate characteristics; (ii) scope of development; (iii) schedule of performance; and (iv) other terms; and
b. receive all entitlements prior to July 1, 2024.
4. Any revenues received between the close of escrow and the construction of the Project shall be shared pursuant to the Master Compensation Agreement. Pursuant to the terms of the PSA, any revenue due to the City may be dedicated toward predevelopment costs and property maintenance, subject to the execution of a future loan agreement.
DISCUSSION/ANALYSIS
The Developer has requested an extension to meet two post-closing conditions to (a) enter into a development agreement with the City; and (b) receive all entitlements (collectively “PostClosing Conditions”) due to the prospective extension of the Metro Southeast Gateway Line project (previously West Santa Ana Branch Transit Corridor) (“Metro Project”), which will provide
14.5 miles of new light rail connecting Slauson/A Line Station in the City of Los Angeles/FlorenceFirestone unincorporated area of Los Angeles County to its southern terminus at the Pioneer Station in the City of Artesia. The Metro Project is planned to provide a light rail station north of Firestone Boulevard and east of Atlantic Boulevard in near proximity to the Project and is forecasted to be complete by 2035. Residential projects located in near proximity to mass transit, like light rail, are able to take advantage of transit-oriented development funding, such as the Affordable Housing and Sustainable Communities (“AHSC”) Program, and other funding sources.
Extending the timeline to allow the Developer to meet the Post-Closing Conditions will allow future development at the Property to take full advantage of the additional funding sources specially set aside for transit-oriented development, in addition to opportunities for affordable housing.
ENVIRONMENTAL ANALYSIS
The action(s) have been assessed in accordance with the California Environmental Quality Act (“CEQA”) (Pub. Res. Code § 21000 et seq.), CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) and the environmental regulations of the City. The Project is categorically exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15061(b)(3) (Common Sense Exemption). The execution of the PSA in 2022 was found to be categorically exempt pursuant to CEQA Guidelines Section 15532 (Class 32 – Infill Projects). Additionally, the approval of this First Amendment to the PSA would not result in any physical improvements or developments, therefore, it can be seen with certainty that this First Amendment to the PSA would not result in
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Staff Report
06/04/2024 Page 3 of 3
any direct or indirect environmental impacts beyond those already determined to be categorically exempt pursuant to the Class 32 Exemption. Further, any future development at the Property would be subject to environmental review.
CONCLUSION
Staff recommends that the City Council approve the attached First Amendment to the PSA and determine the approval to be categorially exempt from CEQA.
ATTACHMENT
A. First Amendment to the Purchase and Sale Agreement
2024
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(APNS 6224-034-900; -901; -902; -903)
THIS FIRST AMENDMENT (“First Amendment”) to the Purchase and Sale Agreement and Joint Escrow Instructions (“Agreement”) dated December 6, 2022, is hereby entered into this 1st day of June, 2024 (“Effective Date”) by and between the City of Cudahy, a municipal corporation (“City” or “Seller”) and Prima Development, a California non-profit public benefit corporation (“Developer” or “Buyer”). For purposes of this First Amendment, the capitalized term “Parties” shall be a collective reference to the City and Developer and the capitalized term “Party” shall refer to the City or Developer interchangeably, as appropriate.
RECITALS
This First Amendment is made and entered into with respect to the following facts:
WHEREAS, the real property that is the subject of the Agreement and this First Amendment is located approximately at 8420 S. Atlantic Avenue, 4819 Patata Street, and a vacant located at Patata Street (APNs 6224-034-900; -901; -902; -903), and more specifically described in Exhibit A attached to the Agreement and incorporated by reference herein (“Property” or “Site”); and WHEREAS, the Developer was selected to acquire and improve the Property in accordance with the City’s Long Range Property Management Plan (“LRPMP”), applicable Redevelopment Plan and Implementation Plan, and Master Compensation Agreement; and WHEREAS, on December 6, 2022, the City Council approved the sale of the Site to Developer at a regularly scheduled meeting through the approval of Resolution No. 22-72; and WHEREAS, on December 6, 2022, the Parties executed and entered into a purchase and sale agreement (“Agreement”) for the City to sell the Property to the Developer, attached and incorporated by reference hereto as Exhibit “A”; and
WHEREAS, pursuant to the Agreement, the Developer will develop a 148-unit affordable housing project reserved for income-eligible seniors (“Project”); and WHEREAS, since the Parties executed the Agreement, Metro has approved the Metro Southeast Gateway Line project (previously West Santa Ana Branch Transit Corridor), which includes a light rail station north of Firestone Boulevard east of Atlantic Boulevard which is in near proximity to the Site; and WHEREAS, properties located within close proximity from public transit facilities are eligible for additional funding in order to spur more transit-oriented development; and WHEREAS the purpose of the Affordable Housing and Sustainable Communities (“AHSC”) Program is to fund projects that support infill and compact development resulting in a reduction of greenhouse gas (“GHG”) emissions; and
Attachment APage 3958 of 4584
WHEREAS, the Developer has been diligently pursuing financing to support the development of the Property but requires additional time to acquire project financing and satisfy other terms of the Project requiring financing, in order to implement the Project in the manner contemplated in the Agreement; and WHEREAS, Developer and City mutually desire and agree to amend the Agreement to allow additional time to achieve Project goals, inclusive of the execution of a development agreement and acquisition of entitlements necessary to effectuate the Project.
NOW, THEREFORE, in consideration of the mutual agreement contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree to amend the Agreement as follows:
AGREEMENT
1. The recitals stated above are true and correct and incorporated by reference in full, herein.
2. Capitalized terms used in this Agreement and not otherwise defined and shall have the meanings ascribed in the Agreement.
3. Section 5.2 of the Agreement is hereby deleted in its entirety and replaced with the following:
Development Agreement. Prior to July 1, 2032, or substantial completion of the Metro Southeast Gateway South Gate light rail station, generally located north of Firestone Boulevard east of Atlantic Boulevard, whichever comes first, Buyer and Seller shall have entered into a development agreement satisfactory to each of them in their sole and absolute discretion. Such development agreement will be in the form and address the matters customary for disposition and development agreement between California governmental entities and developer of mixed-use affordable housing projects, including specifying (a) improvements to be made on the Property and the use restrictions placed thereon, including occupancy restrictions relating to income, age, disability, homelessness, or other relevant and appropriate characteristic; (b) scope of development; (c) schedule of performance; and (d) consequence for the failure to perform the requirements of the development agreement.
4. Section 5.3 of the Agreement is hereby deleted in its entirety and replaced with the following:
Approval of Land-Use Entitlements. Prior to July 1, 2032, Buyer shall have obtained all such City and agency approvals, including without limitation approvals or waivers with respect to zoning and subdivision, as may be required for implementation of the development agreement, including with respect to any adjoining property that is incorporated into the development plan for the Property.
5. Section 34 is added to the Agreement with the following:
Severability. If any part, term or provision of this Agreement is held to be illegal, in conflict with any law or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected by such determination, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provisions held to be illegal or invalid.
6. The provisions of this First Amendment shall be deemed a part of the Agreement and except otherwise provided under this First Amendment, the Agreement and all provisions contained therein shall remain binding and enforceable. In the event of any conflict or inconsistency between the provisions of this First Amendment and the provisions of the Agreement, the provisions of this First Amendment shall control, but only in so far as such provisions conflict with the Agreement and no further.
7. This Amendment is entered into under and pursuant to the laws of the State of California and shall be interpreted and enforceable in accordance therewith.
8. This Agreement may be executed simultaneously and in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. [SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective duly authorized representatives, as of the Effective Date written above.
CITY OF EL CUDAHY:
By: ________________________________
Alfonso Noyola, City Manager
Date:
APPROVED AS TO FORM:
By: ________________________________
City Attorney
PRIMA DEVELOPMENT:
By: ____________________________
Fernando Vasquez
Date:
EXHIBIT “A”
PURCHASE AND SALE AGREEMENT
MIXED-USE SENIOR CITIZEN AFFORDABLE HOUSING
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
by and between
THE CITY OF CUDAHY
PRIMA DEVELOPMENT
kcBunbq 0t),ZoL2- @
and
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I
MIXED-USE SENIOR CITIZEN AFFORDABLE HOUSING
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(CITY OF CUDAIIY: SITE 5)
THIS MXED-USE SENIOR CITIZEN AFFORDABLE HOUSING PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is dated for reference purposes only as of December 1,2A22 and is entered into by and between the CITY OF CUDAHY, a municipal corporation ("Seller" or "City") and PRIMA DEVELOPMENT, a California nonprofit public benefit corporation ("Buyer" or ffDeveloper"), collectively referred to herein as the Parties. The Seller and Buyer hereby agree as follows:
RECITALS
A. The real property that is the subject of this Agreement is located approximately at 8420 South Atlantic Avenue, 4819 Patata Street, and vacant land at Patata Sheet, with the following Los Angeles County Assessor Parcel Numbers: 6224-034-900,6224- 034-901, 6224-034-902, and6224-034-903, and more specifically described in Exhibit A attached hereto and incorporated herein by this reference ("Property" or ttsite").
B. As part of the 2011-12 State budget bill, the California Legislature enacted, and the Govemor signed AB X1 26 ("AB 26") requiring that each redevelopment agency be dissolved. On June 27,2012 the State Legislature adopted Assembly Bill 1484 ("AB 1484") amending the provisions of AB 26. AB 26 ardAB 1484 are collectively referred to herein as the "Redevelopment Dissolution Law." C. In accordance with the Redevelopment Dissolution Law, the Property was transferred to the City of Cudahy as Successor Agency to the Former Cudahy Community Development Commission, a body corporate and politic (the "Successor Agency") by the Cudahy Community Development Commission.
D. The Successor Agency has transferred the Property to the City, as authorized by the Los Angeles County Consolidated Oversight Board for the First District ("Oversight Board") by Resolution No. 08-2020-04, based on the Long Range Property Management Plan ("2015 Cirdahy LRPMP") approved by the Department of Finance ("State DOF") in 2015, allowing the Sites to be acquired by the City for future development. The City has accepted the transfer of the Property subject to the securing a Compensation Agreement with the applicable taxing entities, as set forth in City Council Resolution No. 20-37.
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s5733.00004\40830991.5
E. The State Department of Finance (the "DOF") determined, by letter dated December 17,2020 ("DOF Approval Date"), that the disposition of land contemplated in Oversight Board Resolution No. 08-2020-04 requires no action on the part of the DOF given the land transfer's consistency with the Successor Agency's approved Long-Range Property Management Plan ('(LRPMP");
F. Buyer and its officers and members have recent and relevant experience developing and managing safe, decent and affordable rental and market-rate housing in California; and
G. The Developer has submitted a written proposal dated December 3,2020 (the "Developer Proposal") to acquire the Property subject to certain conditions. The Developer Proposal set forth certain general terms on which the Developer proposed to acquire the Property and thereafter, use and improve the Property for mixed-use affordable rental housing reserved for occupancy by low-income eligible senior citizen households and persons and related commercial and/or medical care uses ("Project").
H. The scope of the project ("Project Scope") is expected to include: up to approximately one hundred and forty-eight (148) units of affordable rental housing reserved for occupancy by income eligible senior citizens, pursuant to recorded affordability conditions, covenants and restrictions reasonably acceptable to the City and each of the other public agencies identified in Paragraph 4.3.7(a)-(d), as applicable; and mixed-use office space reserved for medical treatment and continuum of care including adult care facility and public social services and/or general office space reserved for occupancy by community non-profit organizations. The Project is also expected to include service and amenity space and on-site parking for senior citizen residents and users ofthe Project.
I. The Parties are discussing the Project Scope, and as provided herein, expect to enter into a development agreement setting forth a Project Scope once agreed to. No reference herein to any preliminary expectations shall bind either Party. The Parties nonetheless have agreed it is mutually desirable for the Developer to purchase, and for the City to sell, the Property while they reach final agreement on the Project Scope and on attendant requirements.
J. The City as Seller desires to sell the Properly to Buyer, and Buyer desires to purchase the Property from Seller, all on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:
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2
AGREEMENT
1. DEFINITIONS AND SPECIAL CONDITION.
1.1 The usage of defined terms in this Agreement is generally indicated by the BOLD text and/or quotation marks where such defined term may initially appear in the text of this Agreement. In addition to the definitions of terms and phrases which appear in the Recitals or other Paragraphs of this Agreement, the following words shall have the meaning set forth below:
1.2 Compensation Agreement shall mean a compensation agreement described in California Health and Safety Code Section 34180(f) by and among the Taxing Entities and Seller for the distribution of the cash and non-cash proceeds of the sale of the Property, net of Property related sale and Escrow closing costs and other Property related management costs and dispositions.
1.3 Outside Closing Date shall mean and refer to December 31,2022. t,4 Taxing Entities shall mean those public agencies who shall be parties to the Compensation Agreement referenced in Health and Safety Code 34171(k) that received pass through payments or property taxes within the jurisdiction of the former Cudahy Community Development Commission, The City is one of the Taxing Entities.
1.5 Notwithstanding any other provision of this Agreement to the contrary this Agreement shall take effect as between Buyer and Seller following its approval by the City Council of the City by the adoption of Resolution No. on 2022, or as soon thereafter as may be practicable, when it has been fully executed by Buyer and the City as evidenced by the signature of the offrcers of each of them which appear on the page following Paragraph 36 below (the "Effective Date").
1.6 Notwithstanding any other provision of this Agreement to the contrary, in the event of any inconsistency between one or more provisions of this Agreement as relates to the Purchase Price, Escrow costs, post Escrow closing adjustments for Remedial Work Costs or the distribution of the proceeds of the Purchase Price to the Taxing Entities under the Compensation Agreement, the provisions of the Compensation Agreement shall control.
2, PURCHASE AND SALE AND PURCHASE PRICE.
2,1 Seller agrees to sell the Properly to Buyer, and Buyer agrees to purchase the Property from Seller, on the terms and conditions set forth in this Agreement.
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)) The total purchase price ("Purchase Price") for the Properfy shall be One Hundred Dollars ($100) payable by Buyer to Seller as provided in this Section 2.
2.3 Not later than one day prior to the Outside Closing Date, Buyer shall deposit with Escrow Holder by means of a confirmed wire transfer the Purchase Price plus Buyer's share of Escrow costs, fees, and prorations, and any other amounts required to be paid by Buyer pursuant to this Agreement.
3. CONDITION OF TITLE TO PROPERTY.
3.1 Title Transfer At Close of Escrow. Title to the Property shall be conveyed to Buyer upon the Close of Escrow.
3.2 Title Exceptions. Title to the Property shall be conveyed to Buyer by Quit Deed in substantially the form attached hereto as Exhibit "C", free and clear of all liens except for:
3.3 Liens securing real property taxes and assessments (which constitute liens not yet due and payable); Such other exceptions and reservations shown on a Preliminary Title Report ("Preliminary Report") issued by a title insurance company as shall be mutually designated by Seller and Buyer ("Title Company") which are approved by Buyer. (All exceptions to title permitted pursuant to this Paragraph 3.2(b) are refened to in this Agreement as "Permitted Exceptions.").
3.4 Review of Title. Seller agrees to furnish Buyer with a copy of the Preliminary Report, together with a copy of all recorded exceptions to title within five (5) days following the Opening of Escrow.
Buyer shall have three (3) Business Days following receipt of the Preliminary Report in which to notifr Seller in writing of Buyer's disapproval of any exceptions set forth in the Preliminary Report.
3.4,r
3.4.2 3.4,3
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In the event of Buyer's disapproval of the Preliminary Report, Seller, at its sole election (to be exercised by written notice to Buyer), shall have five (5) days to remove or otherwise remedy the disapproved exceptions.
If Seller cannot or chooses not to eliminate or otherwise remedy the disapproved exceptions (other than exceptions which may have been created by Buyer) within the time specified in subsection (c) above, this Agreement shall thereupon terminate and all sums and documents deposited in Escrow shall be returned to the parties who respectively deposited the same, and Buyer and Seller shall each pay one-halt (ll2) ot the Escrow costs and the parties shall be mutually released from any further obligation arising under this Agreement except as may have arisen under Paragraph 17(c). Failure of Buyer to provide written disapproval of 4
the Preliminary Report within the above time period shall be deemed approval.
3.5 Title Insurance. Title to the Real Property shall be evidenced by the commitment of the Title Company to issue a standard Califomia Land Title Association policy of title insurance with liability in the amount of the Purchase Price showing title to the Real Property vested in Buyer (or its permitted designee) , subject only to the Permitted Exceptions.
4. CONDITION OF PROPERTY, CONTINGENCIES, CONDITIONS PRECEDENT
4.1 Condition of Property. Except as provided in this Agreement, the Property shall be conveyed and delivered to Buyer in an "as-is" physical condition. BUYER
SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND TIIAT, EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 6.1 OR OTHERWISE IN THIS AGREEMENT, BUYER IS NOT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER,ITS AGENTS OR BROKER AS TO ANY MATTERS CONCERNING THE PROPERTY.
. 4.1.I City represents, to and for the benefit of Developer, to the best of its knowledge, that it is not aware of and it has not received any notice or communication from any govemmental agency having jurisdiction over the Property or City notiffing it of the presence of Hazardous Materials or Hazardous Materials Contamination (both as hereinafter defined) in, on, or under the Properly, or any portion thereof, or the violation of any Environmental Laws (hereinafter defined).
City represents that any inspection reports with respect to the Property, environmental audits, reports and studies which concern the Property, or inspection reports from applicable regulatory authorities with respect to the Property, which City has received, have been delivered to Developer.
4.1.2 Prior to the Effective Date, Developer has independently conducted all necessary and appropriate due diligence and determined that the condition of the Property and all improvements located thereon are suitable for the development and operation of the Project; and all such due diligence and Developer's investigations of the condition of the Properly were conducted independently and not in consultation with City or City's officers, employees, agents, or consultants.
4.1.3 After the Close of Escrow, and notwithstanding the obligation of Developer to indemnifu City pursuant to Section 7.1 herein or any other obligations of City pursuant to this Agreement, until the City's execution of a Post-Closing Condition Removal as defined below, if either party shall receive notice from any federal, state or local governmental agency or political subdivision or pursuant to any Environmental Laws with respect to the Properfy, of requirements or necessary Error! Unknown document property name.
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5
actions arising from the presence upon, about or beneath the Property ofany Hazardous Materials or Hazardous Materials Contamination in violation of Environmental Laws that existed on the Property prior to the Close of Escrow ("Remediation"); then in such event the parties shall promptly meet and determine a course of action. The City in its sole discretion may terminate this Agreement, unless (a) the parties can jointly agree to a plan of action that will permit the City (at its sole cost and expense) to meet its legal obligations to its satisfaction, and (b) Developer in its sole discretion agrees to (i) provide City with all rights of access and control necessary for the City to perform any immediately-required Remediation; (ii) make available to City 100% of the Income for Predevelopment (as defined below) to pay the costs of Remediation; (iii) incorporate, as a condition to the City's execution of a Post-Closing Condition Removal, to any remaining Remediation not performed by the City into its Remedial Work Plan and (iv) reimburse the City for all net costs of Remediation incurred by the City.
4.1.4 Remediation shall include, but not be limited to, an initial investigation of the environmental condition of the Properly, the preparation of any feasibility studies or reports and the performance of any cleanup, remediation, abatement, removal, or restoration work required. Following the City's execution of a Post-Closing Condition Removal, the City's obligation under the foregoing paragraph will terminate and Developer shall bear full responsibility for Remediation.
Developer shall take all actions necessary to restore promptly the Property to an environmentally sound condition for uses, ownership, and occupancy contemplated by this Agreement, notwithstanding any lesser standard of remediation allowable under applicable Environmental Laws. Developer's obligations under this Section shall survive termination of the Agreement, Developer shall at all times be responsible for Remediation the need which resulted from any act or omission of Developer.
4.1.5 Definitions. Forthe purposes of this Section 4.1 and Section 7.1 hereof, the following terms shall have the meanings herein specified:
4.1.6 As used in this Agreement, the term "Hazardous Material" or "Hazardous Materials" means and include any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a
o'hazardous waste," "acutely hazardous waste,"
"restricted hazardous waste," or "extremely hazardous waste" under Section 25175, 25117 or 25122.7, or listed pursuant to Section 25140 of the Califomia Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defrned as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a"hazardous material," "hazatdous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a"hazardous substance" under Section 25281of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Error! Unknown document property name.
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Hazardous Substances), (v) petroleum, (vi) asbestos and/or asbestos containing materials; (vii) lead-based paint or any lead based or lead products; (viii) polyctrlorinated biphenyls, (ix) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section l3l7), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act,42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903), (xi) Methyltertiary Butyl Ether; (xii) defined as !'hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act,42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601); (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any "Environmental Laws" (as defined in Paragraph (c) of this Section 308) either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or . Is as "hazardous" or harmful to the environment; and/or (xiv) lead based paint pursuant to and defined in the Lead-Based Paint Poisoning Prevention Act, Title X of the 1992 Housing and Community Development Act,42 U.S.C. $4800, et seq., specifically $$4821-4846, and the implementing regulations thereto. Notwithstanding the foregoing, "Hazardous Materials" shall not include such products in quantities as are customarily used in the construction, maintenance, rehabilitation, management, operation and residence of residential developments or associated buildings and grounds, or typically used in residential activities in a manner typical of other comparable residential developments, or substances commonly ingested by a significant population living within the Project, including without limitation alcohol, aspirin, tobacco and saccharine.
4.1.7 The term "Hazardous Materials Contamination" means the contamination (whether presently existing or hereafter occurring) of the improvements, facilities, soil, groundwater, air or other elements on, in or of the Property by Hazardous Materials, or the contamination of the buildings, facilities, soil, groundwater, air or other elements on, in or of any other property as a result of Hazardous Materials at any time (whether before or after the Effective Date) emanating from the Properly.
4.1.8 The term "Environmental Laws" as used in this Agreement means all laws, ordinances and regulations relating to Hazardous Materials, including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 74.1 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251, et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901, et seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986),42 U.S.C. Section 9601, et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601, et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, et seq., the Emergency Planning and Community Right to Know Act of 1986,42 U.S.C. Section 11001, et seq.; the Mine Safety and Health Act of 7977, as amended, 30 U.S.C.
Section 801, et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f, et seq.; all comparable state and local laws,laws of other jurisdictions or orders and regulations; and all laws, ordinances, statutes, codes, rules, regulations, orders 7 Error! Unknown document property name.
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55733.00004\4083099 1.5
and decrees of the United States, the state, the county, the city, or any other political subdivision in which the Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, Developer, or the Property.
4.L.9 The term "Environmental Claim" means (i) any judicial or administrative enforcement actions, proceedings, claims, orders (including consent orders and decrees), directives, notices (including notices ofinspection, notices of abatement, notices of noncompliance or violation and notices to comply), requests for information or investigation instituted or threatened by any govemmental authority pursuant to any Governmental Requirement; or, (ii) any suits, arbitrations, legal proceedings, actions or claims instituted, made or threatened that relate to any damage, contribution, cost recovery, compensation, loss or injury resulting from the release or tlreatened release (whether sudden or non-sudden or accidental or nonaccidental) of, or exposure to, arry Hazwdous Materials, or the violation or alleged violation of any Governmental Requirement, or the general, manufacture, use, storage, transportation, treatment, or disposal of Hazardous Materials.
Buyer's Contingencies. Buyer's obligation to purchase the Property is subject to the following contingencies described in subparagraphs 4.2.1 through 4.2.3 below (r'Contingencies"). Each and all of the following Contingencies are for the sole benefit of Buyer and may be waived by Buyer for any or no reason in Buyer's sole and absolute discretion by written notice to Escrow on or before December 75,2022 ("Contingency Removal Date").
4.2.1 Not later than the Contingency Removal Date, Buyer shall deliver to Seller and Escrow Holder written notice of Buyer's approval or disapproval of its due diligence review and the feasibility of this transaction (the "Due Diligence Examination"). Buyer shall be deemed to have disapproved its Due Diligence Exarnination and not to have removed all of its contingencies to Closing unless Buyer shall provide written notice of its approval of same to Seller and Escrow Holder prior to Contingency Removal Date. During the Due Diligence Examination, and thereafter until Close of Escrow, Buyer may perform due diligence examinations, reviews and inspections of all matters pertaining to the Property, including, the feasibility of the Property for Buyer's intended pulposes, survey and title matters, environmental and governmental compliance matters, matters pertaining to the tenants and Leases, and investigations concerning the physical and financial condition of the Property and local market conditions. All due diligence examinations, reviews and inspections conducted by Buyer shall be at Buyer's sole cost and expense. Seller shall provide Buyer with reasonable access to the Property, the tenants and to Seller's agents and employees involved in the management of the Property upon reasonable notice. Buyer shall, at all times, conduct its due diligence review, inspections and examinations in a manner so as to not cause damage to the Property and so as to not unreasonably interfere with, disturb or otherwise violate the rights of any tenant of the Property. Buyer agrees to indemnifr, defend and hold Seller and the Property harmless from and against any and all claims, loss, cost, damage, liability or expense arising from the performance by Buyer, its employees, its contractors, subcontractors, 8
brokers, agents and representatives of its due diligence reviews, inspections and examinations hereunder (the foregoing obligations surviving any termination of this Agreement). In no event shall Buyer make any intrusive physical testing (environmental, structural or otherwise) at the Property (such as soil borings or the Iike) without Seller's prior written consent (which Seller may Quit or withhold in its sole and absolute discretion), and Buyer shall in all events promptly retum the Property to its prior condition and repair thereafter.
4.2.2 Buyer's Review of Title. Buyer's review and approval of the Preliminary Report and all recorded exceptions to title in accordance with Paragraph
3.3 of this Agreement. Upon the Close of Escrow, the Title Company shall be irrevocably committed to issue the Title Policy insuring fee title to the Real Property as being vested in Buyer subject to only the Permitted Exceptions and otherwise in a condition approved by Buyer.
4.2.3 Physical lnspection of Propert]r. Buyer's inspection and examination of the physical condition of the Property. Buyer shall have access to the property upon reasonable notice to Seller at reasonable times and shall have the right to conduct, at Buyer's expense, soil tests, engineering feasibility studies, environmental investigations and such other studies with respect to the physical condition of the Properly as Buyer may desire. Buyer shall have until the Contingency Removal Date to conduct such tests and studies, and to give written notice to Seller of any conditions unacceptable to Buyer. Buyer shall hold and save Seller harmless from and against any and all loss, cost, damage, liability, injury or expense, arising out of or directly related to damage to property, injury to or death of persons, or the assertion of lien claims caused by such entry, inspection and implementation of soil tests, environmental investigations and other studies with respect to the physical condition of the Property. If Buyer elects to terminate this Agreement by reason of failure of the Contingency set forth in this subparagraph4.z.2,Buyer shall promptly upon such election deliver to Seller copies of all written reports, studies and information prepared by third parties for Buyer which pertain to the physical condition of the Property. In the event that Buyer exercises this right of inspection, Buyer shall comply with all applicable laws and obtain all permits which may be required with respect to its investigations and testing. Buyer further agrees to indemnify, defend, and hold hannless Seller and the Properly from and against any and all claims, damages, liabilities, and losses arising from such activities of Buyer or its employees or agents, and from and against all mechanics', materialmens', and other liens resulting from any such conduct. Buyer shall restore the Property as nearly as possible to its condition existing immediately prior to any such entry by or on behalf of Buyer. Prior to entry upon the Site Buyer shall obtain insurance covering Buyer's indemnity, hold harmless, and defense obligations to Seller pursuant to this paragraph. Prior to enty upon the Property for such inspection Buyer shall furnish to Seller duplicates of appropriate certificates of commercial gdneral liability insurance in the amount of at 9 Error! Unknown document property name.
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4.3 4.4
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least Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage and Three Million Dollars ($3,000,000) general aggregate limit, naming Seller as an additional insured, insuring Buyer's obligations and responsibilities under this paragraph (4). Buyer shall maintain each such policy in effect until the Close of Escrow.
4.2.4 Other Contineencies. Buyer's determination that zoning and other governmental regulations affecting the use of the Property are satisfactory for Buyer's intended use.
4.2.5 Failure of Contingency. Buyer may terminate this Agreement or disapprove any Contingency, with or without cause, at any time on or prior to the Contingency Removal Date by giving the Seller written notice of such disapproval or termination, in which event all sums and documents deposited in Escrow shall be immediately returned to the parties who respectively deposited the same without further instruction, and Buyer and Seller shall each pay one-half (ll2) of the Escrow costs. If Buyer disapproves any Contingency within the applicable time period provided above, Buyer's sole remedy shall be to terminate this Agreement and Seller shall have no obligation to remedy any Contingency which Buyer disapproves, except as provided in Paragraph 3.3(d). If Buyer fails to give written notice to Seller of its disapproval of any Contingency within the respective applicable time limit set forth above in Paragraph 4.2, it shall conclusively be deemed that Buyer has disapproved such Contingency and terminated the Agreement.
Buyer's Conditions Precedent to Close of Escrow. Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by Buyer, Buyer's obligation to purchase the Property from Seller on the Closing Date shall be conditioned upon the satisfaction or waiver (waivers must be in writing and signed by Buyer) of each of the following conditions precedent to such purchase on or before the Closing Date:
4.3.1 No Leases. Seller has represented to Buyer in writing that Seller has no knowledge of any leases or other agreements affecting the Property other than those Seller shall have delivered to Buyer.
4,3.2 Representations. All representations and warranties of Seller in this Agreement shall be true on and as of the applicable Closing as though made at that time. All covenants of Seller with respect to the Property which are required to be performed prior to the Closing shall have been performed by such date.
Seller Conditions Precedent To Close of Escrow. Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by Seller, Seller's obligation to sell the Property to Buyer on the Closing Date shall be conditioned upon the satisfaction or waiver (waivers must be in writing and signed by 10
4.5 Seller) of each of the following conditions precedent to such sale on or before the Closing Date:
4.4.I Aoproval of Title Policy. Buyer and Seller shall have approved the Title Policy;
4.4.2 Buyer Escrow Deposits. Buyer has deposited all of the items into Escrow required this Agreement.
4.4.3 Buyer Pre-Closing Oblieations. Buyer has performed all of the material obligations required to be performed by Buyer pursua4t to this Agreement prior to Close of Escrow.
4'.4.4 Compensation Agreement. Seller shall have received approval of the applicable taxing agencies of a compensation agreement described in California Health and Safety Code Section 34180(f).
Failure of Condition Precedent. In the event any Condition Precedent shall not be satisfied and true as of the Close of Escrow, then in such event the Party in whose favor the condition exists, in its sole and absolute discretion may 1) terminate this Agreement and all sums and documents deposited in Escrow shall be immediately returned to the parties who respectively deposited the same without further instruction, and Buyer and Seller shall each pay one-halt (l/2) of the Escrow costs, or 2) waive any Condition Precedent and close Escrow on or prior to the Outside Closing Date.
5. CONDITIONS TO BE SATISFIED POST CLOSING.
Seller's delivery and Buyer's acceptance of the Deed herein shall be subject to the express condition, expressed in the Deed, that Buyer shall satisff each of the following post-closing conditions (each, a "Post-Closing Condition") to the satisfaction of Seller.
5.1 Remedial Work Plan. The Parties acknowledge that Buyer's intended use of the Property will require the preparation of a Remedial Work Plan for the Remedial Work which Buyer shall undertake on the Property promptly following the Closing.
As of the time of approval of this Agreement by Seller, Buyer has informed Seller that Buyer's estimated cost of performing such Remedial Work on the Property, inclusive of the cost of preparation of the Remedial Work Plan and regulatory agency oveisight of the completion of such Remedial Work is approximately $8,992,355.
Buyer shall designate one ofthe three (3) regulatory agencies to review and approve the Remedial Work Plan: (a) Los Angeles County Fire Department: The Site Mitigation Unit (SMU) of the Health Hazardous Materials Division; or (b) California Regional Water Quality Control Board (Los Angeles Region); or (c) State Department of Toxic Substance Control. Such Remedial Work PIan shall have been approved by such regulatory agency and accepted by Buyer prior to December 31, 2025.If approval has not been received by December 31,2025, Buyer may request a Error! Unknown document property neme.
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l1
5.2 s.3
5.4 5.5
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one year extension from the City Manager. Buyer assumes responsibility for the payment of all Cost and expense associated with the preparation of the Remedial Work Plan and the performance of the Remedial Work and Seller makes no representation or warranty with respect to the accuracy of the estimated cost of the Remedial Work or to the adequacy of the Remedial Work Plan to accommodate Buyer's intended us of the Property.
Development Asreement. Prior to July 1, 2024,8rryer and Seller shall have entered into a Development Agreement satisfactory to each of them in their sole and absolute discretion. Such Development Agreement will be in the form and address the matters customary for disposition and development agreements between California govemmental entities and developers of mixed-use affordable housing projects, including speciffing (a) the improvements to be made on the property and the use restrictions to be placed thereon, including any occupancy restrictions relating to income, age, disability, homelessness, or other relevant and appropriate characteristics; (b) scope of development; (c) schedule of performance and (d) consequences for the failure to perform the requirements of the Development Agreement.
Approval of Land-Use Entitlements. Prior to July 1, 2024,Buyer shall have obtained all such City and agency approvals, including without limitation approvals or waivers with respect to zoning and subdivision, as may be required for implementation of the Development Agreement, including with respect to any adjoining property that is incorporated into the development plan for the Property.
Ouitclaim Deed. Within five (5) Business Days after the Effective Date, Buyer shall sign and acknowledge a Quitclaim Deed in the form attached hereto as Exhibit D (the "Quitclaim Deed"), with all blanks accurately completed, and shall deposit ttre original, signed and acknowledged Quitclaim Deed into the Escrow Upon Buyer's failure to meet any Post-Closing Condition by the date specified for the accomplishment of such condition, or as may be provided in the Development Agreement for any default of Buyer thereunder, Seller may in its discretion direct Escrow Holder in writing to record such Quitclaim Deed. Upon Buyer's satisfaction of all Post-Closing Conditions, Buyer may request that the Quitclaim Deed be destroyed and evidence thereof provided to Buyer, and Seller shall within five (5) days of request confirm the satisfaction and join in such written instruction (the "Post-Closing Condition Removal") unless it contests Buyer's entitlement thereto.
Escrow Holder shall have no duty to honor such instruction unless and until jointly given.
Use of Propertv Prior to Project Approval and Construction. Developer shall not commence construction on, or otherwise materially disturb the Property except following satisfaction of the Post-Closing Conditions and in accordance with the Development Agreement following its execution. Notwithstanding the foregoing, Developer may rent, lease or otherwise allow use of the Property, provided that: (i) any pre-development use of the Property does not limit or predetermine in any fashion, or have the potential to do so, as determined in the City's sole discretion, t2
with the timely development of a mixed-use affordable housing project on the Property; (ii) Developer shall obtain the City's wriffen consent, which consent the Crty may not unreasonably withhold, prior to contracting or otherwise allowing use of the Property in any manner prior to commencing construction; and (iii) preconstruction lease or use of the Property shall be subject to a written agreement in a forrn approved by the City, which agreement shall be subject to termination on ninety (90) days' notice from the City following recordation of the Quitclaim Deed. Any pre-development use shall be subject to all regulatory and permitting requirements.
Nothing in this Agreement grants any rights as to particular pre-development use.
5.6 Use of Interim Income. Developer shall utilize at least [50%) of the rental or other pre-construction income derived from the Property (the "Income for Predevelopment") for predevelopment expenses of the Project, and may retain the remainder for its internal and third-party costs of ownership including securing and maintaining the Property. All Income for Predevelopment expended by Developer for predevelopment expenses of the Project shall be deemed to have been (a) paid to the City in consideration of its activities and support provided hereunder and (b) reloaned back to Developer as a predevelopment loan, which loan may in the Parties' discretion be more specifically documented in separate predevelopment loan instruments. At such time as is provided in the Development Agreement, in connection with the closing of construction financing for the Project, such predevelopment loan will be converted to a permanent loan repayable from Project cash flow in proportion to other public subordinate debt. In the event the City causes the Quitclaim Deed to be recorded, such predevelopment loan will be forgiven.
6. REPRESENTATIONS AND WARRANTIES
6.1 Seller's Warranties. Seller makes the representations and warranties in this Paragraph 6, each and all of which shall survive any and all inquiries and investigations made by Buyer and shall survive the Close of Escrow and recordation of the Quit Deed.
6.1 .1 Seller is a municipal corporation.
6.1.2 6.1.3
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Upon the approval of this Agreement by the City and the separate approval of the Compensation Agreement applicable to the Properly by the Taxing Entities , neither the entering into this Agreement nor the performance of any of Seller's obligations under this Agreement will violate the terms of any contract, agreement or instrument to which Seller is a party.
Seller has not actually received any formal written notice that any of the easements, covenants, conditions, restrictions or agreements to which the Property is subject interferes with or is breached by the use or operation of the Property as presently used and operated as a vacant parcel. 13
6.t,4
6. 1.5
6. r.6
6.1.7 6.1.8
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Seller has not been served (by means of formal, legal service of process as required by law) (and has no knowledge o0 with any litigation, and no arbitration proceedings have been commenced, which do or will affect any aspect of the Property or Seller's ability to perform its obligations under this Agreement.
There are no leases, service contracts, or other agreements affecting the Property and represents and no written commitments to, or written agreements with, any govemmental or quasi-governmental authority or agency materially affecting the Property .
Seller hereby agrees, through and including the Close of Escrow and at the Seller's sole cost and expense, to operate the Property in the same manner as Seller has been operating the Property in the past.
After the execution of this Agreement, and except for acknowledgement as the owner of the Property that Buyer is authorized to apply for approval of the Remedial Work Plan to the applicable regulatory agency, while this Agreement is in force and effect, Seller will not enter into any contract that will be an obligation affecting the Property subsequent to the Close of Escrow, except contracts entered into in the ordinary course of business that are terminable without cause and without the payment of any termination penalty on not more than thirty (30) days prior notice, without obtaining Buyer's written consent, which shall not be unreasonably conditioned, delayed or withheld.
No Alterations. Seller will not intentionally alter the physical condition of the Property from and after the date of this Agreement, reasonable wear and tear excepted. If through no fault ofSeller, the physical condition of the Property is different on the date scheduled for the Close of Escrow than as of the date of this Agreement, then, except as provided in Paragraph 13 of this Agreement, in such event Buyer may terminate this Agreement. If Buyer elects to terminate this Agreement by written notice to Seller and Escrow Holder given within twenty (20) business days of discovery of the altered condition, Escrow shall immediately terminate upon Seller's receipt of Buyer's notice of election to terminate this Agreement and all sums and documents deposited in Escrow shall be immediately retumed without further instruction to the parties who deposited the same and Seller and Buyer shall each pay one-halt (ll2) ot Escrow costs. If Buyer fails to notifr Seller and Escrow Holder of its election to terminate this Agreement within said twenty (20) business days' time period provided above, Buyer shall be deemed to have accepted the modified condition of the Property and elected to purchase the Property.
Chaneed Conditions. [f, prior to the Close of Escrow, new events have occurred which were beyond the control of Seller and which render any 14
6.2 previously true representation or warranty untrue, Seller shall, within five (5) business days of obtaining knowledge of such new event, disclose that matter by written notice to Buyer. Buyer shall have ten (10) days after the earlier of (i) such disclosure; or (ii) Buyer's independent discovery that such representation or warranty has become untrue, to elect, in its sole and absolute discretion, and as its sole remedy, by written notice to Seller within said ten (10) day period, whether (i) to purchase the Property or (ii) terminate this Agreement by written notice to Seller and Escrow and Escrow shall immediately terminate upon Seller's receipt of Buyer's notice of election to terminate this Agreement and all sums and documents deposited in Escrow shall be immediately returned to the parties who deposited the same without further instruction and Seller and Buyer shall each pay one-half (1/2) of Escrow costs. If Buyer fails to notiff Seller and Escrow Holder of its election to terminate this Agreement within said ten (10) days' time period provided above, Buyer shall be deemed to have not accepted the modified representations and waranties and elected not to purchase the Property and this Agreement shall automatically terminate.
6.1.10 Other than those express representations and warranties contained in this Agreement, Seller makes no warranty or representation, express or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose.
6.1.i1 Except to the extent Seller has made a specific representation and warranty with respect thereto, no document or information provided by Seller to Buyer shall constitute a representation as to the completeness or accuracy of such documents or information.
Renresentations And Warranties By Buyer. Buyer makes the following representations and warranties in this Paragraph 6.2, each and all of which shall survive any and all inquiries and investigations made by Seller and shall survive the Close of Escrow and recordation of the Quit Deed.
6.2.1 Each and all of the information and any financial statement delivered by Buyer to Seller are true and correct.
6.2.2 Buyer has the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The Buyer, and the specific, individual parties signing this Agreement on behalf of Buyer represent and warrant that the parties signing this Agreement on behalf of the Buyer have the fuIl legal power, authority and right to execute and deliver this Agreement.
6.2.3 Buyer has or will make its own investigation conceming the physical condition of the Properfy, condition of title or any other matter pertaining to the Property, and, other than the specific representations and warranties made by Seller pursuant to this Agreement, Buyer is not relying on any Error! Unknown documcnt property neme.
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representations, warranties or inducements of Seller or Seller's broker with respect to the physical condition of the Property, condition of title to the Property, or any other matter pertaining to the Property. Accordingly, except for those specific representations and warranties of Seller set forth in this Agreement, Buyer is purchasing the Property and each and every aspect thereof in an "as-is" condition, and Seller makes no express or implied representation conceming (i) the status of title to the Property; (ii) any leases; (iii) the current or future real estate tax liability, assessment or valuation of the Property; (iv) the compliance of the Property in its current or future state with applicable laws or any violations thereof, including without limitation, those relating to access for the handicapped, environmental or zoning matters, or the ability to obtain a change in the zoning of the Property; (v) the nature and extent of any right-of-way, lease, lien, encumbrance, license or reservation; (vi) the availability of any financing for the purchase, alteration or operation of the Property from any source, including, without limitation, any govemmental authority or lender; (vii) the current or future use of the Property; (viii) the viability or financial condition of any tenant; and (ix) the actual or projected income or operation expenses ofthe Property.
6.3 Brokers. If either Buyer or Seller has engaged or dealt with any broker or finder in corurection with the sale contemplated by this Agreement; (a)=Buyer shall pay, and shall hold Seller harmless from and against, any commission or finder's fee payable to any party who represents or claims to represent Buyer; and (b) Seller shall pay, and shall hold Buyer harmless from and against, any commission or finder's fee payable to any party who represents or claims to represent Seller. 7, INDEMNIF'ICATION.
Seller Indemnity. Subject to any other provisions of this Agreement to the contrary, Seller as "Indemnitor" shall indemnify and hold harmless Buyer as "Indemnitee" harmless from and against any claim, loss, damage or expense, including any reasonable attorneys'fees (including attomeys'fees on appeal), asserted against or suffered by the Indemnitee resulting from: (a) Any breach by the Indemnitor of this Agreement; (b) AnV liability of the Indemnitor with respect to the Property under any lease, service contract or other agreement; or (c) The inaccuracy or breach ofany of the representations, warranties or covenants made by the Indemnitor.
7.2 Buyer Indemnity. Subject to the limitation of Paragraph I 7(b) as to Buyer, and any other provisions of this Agreement to the contrary, Buyer as Indemnitor shall indemnifi, defend and hold harmless the City, and the elected and appointed offrcials, officers, agents and employees of the City, the City as Successor Agency to the former Cudahy Community Development Commission (the "Successor Agency"), and the elected and appointed officials, officers, agents and employees of the Successor Agency, the County Oversight Board (individually or collectively, an Error! Unknown document property neme.
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7.1 T6
"Indemnified Party") against any and all losses arising out of any claim, demand or cause of action, or any action or other proceeding, whether meritorious or not, arising through activities of the Buyer with respect to The Site, or Buyer's contractors or employees which may also be brought or asserted against any Indemnified Party that relates to or arises out of: (i) property damage or bodily injury or death of any person in connection with this Agreement; (ii) entry upon The Site by Buyer, its contractors or employees; (iii) any other inspection of The Site by Buyer, its contractors or employees; or (iv) the preparation of any report or plan commissioned by Buyer; (v) any judicial challenge by a third party of the validity of this Agreement; and (vi) any claim or demand or cause of action which asserts an Indemnified Party is responsible for loss or injury or is liable to pay any cost or expense under (i) - (iv), inclusive, provided, however, that no Indemnified Parly shall be entitled to indemnification under this Section 7 arising from a matter caused by such Indemnified Party's gross negligence or willful misconduct or for any matter under (i) - (iv), inclusive, arising from the discovery by Buyer of any pre-existing condition upon The Site. [n the event any action or proceeding is brought against an Indemnifred Party by reason of a claim arising out of any loss for which Buyer is obligated to indemniff, defend or hold harmless the Indemnified Parry, and upon written notice from such Indemnified Party, Buyer shall, at Buyer's sole expense, answer and otherwise defend such action or proceeding, The provisions of this Section 7 shall survive the expiration or termination of this Agreement.
7,2,1 BUYER BNYIRONMENTAL INDEMNITY. DEVELOPER
SHALL SAVE, PROTECT, PAY FOR, DEFEND (WITH COUNSEL
ACCEPTABLE TO CITY),INDEMNIFY AND HOLD HARMLESS THE CITY,
AND THE ELECTED AND APPOINTED OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES OF TI{E CITY, THE CITY AS SUCCESSOR AGENCY TO THE FORMER CUDAHY COMMI.INITY DEVELOPMENT COMMISSION (THE ''SUCCESSOR AGENCY''), AND THE ELECTED AND APPOINTED
OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES OF THE SUCCESSOR
AGENCY, THE COUNTY OVERSIGHT BOARD (INDIVIDUALLY OR
COLLECTIVELY, THE ''INDEMNITEES") FROM AND AGAINST ANY AND
ALL LIABILITIES, SUITS, ACTIONS, CLAIMS, DEMANDS, PENALTIES,
DAMAGES (INCLUDING, WITHOUT LIMITATION, PENALTIES, FINES AND
MONETARY SANCTIONS), LOSSES, COSTS OR EXPENSES (INCLUDING,
WITHOUT LIMITATION, CONSULTANTS' FEES, INVESTIGATION AND
LABORATORY FEES, ATTORNEYS' FEES AND REMEDIAL AND RESPONSE cosTs) (FoR PURPOSES OF THIS SECTION, ET SEQ., THE FOREGOING SHALL BE COLLECTIVELY REFERRED TO AS *LIABILITIES'') WHICH
MAY NOW OR IN THE FUTURE BE INCURRED OR SUFFERED BY THE
INDEMNITEES BY REASON OF, RESULTING FROM, IN CONNECTION
WITH, OR ARISING IN ANY MANNER WHATSOEVER AS A DIRECT OR
INDIRECT RESULT OF (I) THE OWNERSHIP OF THE PROPERTY OR
OPERATION OF ALL OR ANY PART OF THE PROPERTY, (II) ANY ACT OR
OMISSION ON THE PART OF CITY, OR ITS AGENTS, EMPLOYEES,
REPRESENTATIVES, TENANTS, CONTRACTORS, OCCUPANTS, OR
INVITEES, (III) THE PRESENCE ON, UNDER, OR ABOUT, OR THE ESCAPE, Error! Unknown document property name.
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SEEPAGE, LEAKAGE, SPILLAGE, DISCHARGE, EMISSION OR RELEASE
FROM THE PROPERTY OF ANY HAZARDOUS MATERIALS OR
HAZARDOUS MATERIALS CONTAMINATION IN VIOLATION OF
ENVIRONMENTAL LAWS, (ID THE ENVIRONMENTAL CONDITION OF
THE PROPERTY, AND (V) ANY LIABILITIES INCURRED UNDER ANY ENVIRONMENTAL LAWS RELATING TO HAZARDOUS MATERIALS.
DEVELOPER'S OBLIGATIONS HEREUNDER SHALL SURVIVE THIS
AGREEMENT, AND SHALL BE A COVENANT RLINNING WITH THE LAND
IN PERPETUITY, BINDING ON ALL SUCCESSORS AND ASSIGNS OF
DEVELOPER'S INTEREST IN EITIIER THIS AGREEMENT OR ANY PART OF THE PROPERTY. DEVELOPER MAY ASSIGN ITS OBLIGATIONS
HERETINDER TO AN APPROVED OR PERMITTED SUCCESSOR OR
ASSIGNEE OF DEVELOPER'S INTEREST IN THIS AGREEMENT OR THE
PROPERTY AND DEVELOPER'S OBLIGATIONS HEREUNDER SHALL
AUTOMATICALLY TRANSFER TO A TRANSFEREE THAT ACQUIRES TITLE
TO THE PROPERTY AS A RESULT OF AN INVOLUNTARY TRANSFER, FOR
THOSE EVENTS OR CONDITIONS RELATED TO THE REQUIREMENTS IN
THIS SECTION THAT MAY OCCUR SUBSEQLIENT TO DEVELOPER'S
CONVEYANCE TO SUCH SUCCESSOR OR ASSIGN, PROVIDED THAT
DEVELOPER SHALL REMAIN LIABLE FOR ALL OF ITS OBLIGATIONS HEREUNDER TO THE EXTENT RELATED TO EVENTS OCCURRING PzuOR TO SUCH ASSIGNMENT. NOTWITHSTANDING THE FOREGOING,
DEVELOPER SHALL NOT HAVE ANY OBLIGATION TO INDEMNIFY,
DEFEND OR HOLD HARMLESS THE INDEMMTEES TO THE EXTENT THE LIABILITIES HAVE AzuSEN AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE INDEMNITEES. AT THE
REQUEST OF DEVELOPER, CITY SHALL COOPERATE WITH AND ASSIST
DEVELOPER IN ITS DEFENSE OF ANY SUCH CLAIM, ACTION, SUIT,
PROCEEDING, LOSS, COST, DAMAGE, LIABILITY, DEFICIENCY, FINE, PENALTY, PLINITIVE DAMAGE, OR EXPENSE; PROVIDE,D TIIAT CITY SF{ALL NOT BE OBLIGATED TO INCUR ANY EXPENSE IN CONNECTION WITH SUCH COOPERATION OR ASSISTANCE.
7 .2.2 Release of Citv by Developer. Developer hereby waives, releases and discharges forever City and its employees, officers, agents and representatives, from all present and future claims, demands, suits,legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any way connected with City's ownership, improvement and,/or disposition of the Properfy, any Hazardous Materials on the Property, or the existence of Hazardous Materials Contamination in any state on the Properly, however and whenever they came to be located there.
7.2.3 Civil Code 1542 Release. Developer acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code that provides as follows: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected Error! Unknown document property name.
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18
his or her settlement with the debtor or released party. As such relates to this Section Developer hereby waives and relinquishes all rights and benefits that it may have under Section 1542 of the California Civil Code.
Developer Initials: FV
Notwithstanding the foregoing, the releases provided under this Section shall not be effective to the extent the presence or release of Hazardous Materials on the Property occurs as a result of the gross negligence or willful misconduct of any of the Indemnitees.
Upon the execution of this Agreement and after the Close of Escrow, Developer shall take such actions as may be necessary or prudent to prevent the release of any Hazardous Materials into the environment in, on, under, or about the Property in violation of Environmental Laws. Such precautions shall include reasonable means to prevent or discourage dumping or other releases of Hazardous Materials on the Property in violation of Environmental Laws by third parties and trespassers, including without limitation the erection of a fence surrounding the Property, if warranted.
Claim Notification. Indemnitee/Indemnified Party shall submit any claim for indemnification under this Agreement to the Indemnitor in writing within a reasonable time after Indemnitee/Indemnified Party determines that an event has occurred which has given rise to a right of indemnification under this Paragraph 7 and shall give Indemnitor a reasonable opportunity to investigate and cure any default of Indemnitor under this Agreement and eliminate or remove any claim by a third party.
Notwithstanding the foregoing, if the natwe of Indemnitor's default or the third-party claim is such that it would be impractical or unreasonable to give Indemnitor an opportunity to investigate and cure such default and remove such claim, Indemnitee need not give Indemnitor such opportunity.
Choice of Counsel. If such claim for indemnification relates to a claim or demand presented in writing by a third party against Indemnitee/Indemnified Parry, Indemnitor shall have the right to employ counsel reasonably acceptable to Indemnitee to defend any such claim or demand, and Indemnitee/Indemnified Party shall make available to Indemnitor, or its representatives, all non-confidential or nonprivileged records and other materials in its possession or under its control reasonably required by Indemnitor for its use in contesting such liability. If Indemnitor does not elect to defend any such claim or demand, Indemnitee/Indemnified Parly may do so at its option, but shall not have any obligation to do so.
8. ASSUMPTION OF' LIABILITIES.
8.1 Buyer does not assume and shall not be liable for any of the obligations or liabilities of Seller of any kind or nature affecting or otherwise relating to Seller or the Property, including under any leases, service contracts or otherwise.
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8.2 Seller shall, prior to the Close of Escrow, timely perform and discharge all obligations and liabilities of every kind whatsoever to be discharged prior to the Close of Escrow and arising from or relating to (i) the Properfy, including, but not limited to, the use and ownership of the Property; (ii) the operation of the Property; and (iii) under any leases, service contracts or otherwise. 9, ESCROW AND CLOSING.
9.1 Opening Of Escrow. As soon as possible after the full execution of this Agreement Buyer and Seller shall open an escrow (the "Opening of Escrow") for the purpose of consummating the purchase and sale contemplated by this Agreement ("Escrow") by depositing an executed copy of this Agreement with the escrow agent designated by Buyer and Seller ("Escrow Holder") . This Agreement shall constitute escrow instructions to Escrow Holder. Seller and Buyer shall, promptly upon request by Escrow Holder, execute such additional escrow instructions as may be reasonably required by Escrow Holder, including Escrow Holder's standard printed conditions and stipulations with respect to escrows conceming the purchase and sale of real property; provided, however, that if there is any conflict between the provisions of this Agreement and the provisions of any such additional instructions, the provisions of this Agreement shall prevail. Upon delivery to Escrow of a fully executed copy of this Agreement by both parties, Escrow shall be deemed opened on the terms and conditions set forth in this Agreement.
9.2 Close Of Escrow. Subject to the provisions of Paragraph _, Escrow shall close, and the Quit Deed shall be recorded in the Office of the County Recorder of Los Angeles County, California ("Close of Escrow") after the Contingency Removal Date but not later than December 31,2022 when all Conditions Precedent have been satisfied or waived. The failure of any condition precedent or performance of due diligence by Buyer or the failure of one or more of the Taxing Entities to approve the Compensation Agreement shall not extend the Close of Escrow. 9,3 Seller Deliveries To Escrow. Within the time set forth below, or if none is specified, three (3) business days prior to the Close of Escrow, Seller shall deliver to Escrow Holder, or if so indicated, to Buyer, the following documents and items:
9.3.1 At least one (1) business day prior to the Close of Escrow, the duly executed and acknowledged Quit Deed.
9.3.2 A certificate (the "Certificate") confirming that Seller is not a foreign person as defined in Section 1445 of the Internal Revenue Code;
9.3.3 A completed California FTB Form 597;
9.3.4 At least one business (1) day prior to Close of Escrow, Seller shall deliver such certifications, declarations or other documents as may be required under Internal Revenue Code Sec. 1445 ard California Revenue and Tax Errorl Unknown document property name.
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