Agenda Item # 1.B.9.
over 23,000 acres. CalFire, reported at least 6,700 structures have been damaged or destroyed in the Palisades Fire, including over 700 within City limits.
As the City shifts from emergency response to community recovery, additional offices are needed for Building Safety, Environmental Sustainability, Planning, and Public Works contractors and staff. The Recovery Team will assist residents in a one-stop shop for permits, reviews, and rebuild questions. Access to and from Wave Enterprises will be convenient for the community and staff since it is on the City Hall Campus, across the parking lot from City Hall.
The office space for the rebuild team is estimated to be used for two years. As the City moves through the rebuilding phase, staff will review and provide the Council with the progress and determine the need and timeframe for the extra office space. The two year (24 months) lease will be approximately $371,000, for 2,947 ft2, or roughly $62.95 ft2/yr.
The commercial office can house up to 20 City employees and consultants. The office includes a reception/greeting area, waiting room with a virtual queueing system, copy room, twenty staff workstations, and three private meeting rooms to meet with residents.
In addition, there is plumbing for restrooms and sinks, ADA accessibility, heating, and air conditioning.
Staff also considered the use of portable trailers to be placed on vacant City land, and the cost, comfort, and logistics were not as favorable and practical as using office space adjacent to City Hall and with the office features described for the office space. While difficult to have a like-for-like comparison of trailers vs office space when considering electrical, water, HVAC, ADA, etc., staff nevertheless did explore a cost comparison. The quotes received were for 24’x60’ trailers (1,440 ft2 per trailer). At least two trailers, or 2,880 ft2 total, would be needed to possibly house enough staff. The best quote was for about $298,000, for two trailers with a generator for the first year. The base cost is estimated at $103.29 ft2/yr; significantly more than leasing office space.
Staff also solicited quotes to lease or purchase office furniture for the Fire Rebuild Office, and purchasing furniture offers a cost savings of $24,227 over leasing. Office furniture can be surplused and auctioned off once it is no longer required.
Staff recommends that the Council authorize the Mayor to execute the lease agreement with Wave Enterprises, Inc.
ATTACHMENTS: Lease Agreement with Wave Enterprises, Inc. 65273.00001\43200124.3
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SUMMARY LEASE INFORMATION Landlord ____ Tenant _____
08012023
OFFICE LEASE
WAVE ENTERPRISES, INC.,
a California nonprofit public benefit corporation,
as Landlord,
and
CITY OF MALIBU,
a California municipal corporation,
as Tenant
65273.00001\43200124.3
-iiSUMMARY LEASE INFORMATION Landlord ____ Tenant _____ 08012023
SUMMARY OF OFFICE LEASE INFORMATION
The undersigned agree to the following terms of this Summary of Office Lease Information (the “Summary”). This Summary will be incorporated into and made a part of the Office Lease.
TERMS OF LEASE DESCRIPTION
1. Effective Date of Lease: March 1, 2025
2. Landlord: WAVE ENTERPRISES, INC.,
a California nonprofit public benefit corporation
Landlord’s Notice Information: Wave Enterprises, Inc.
23805 Stuart Ranch Rd., Suite 130
Malibu, CA 90265
Attn: Jennifer Knauff Sanchez
[email protected]
With a concurrent copy to:
Miller Haga Law Group, LLP
23901 Calabasas Rd., Suite 2001
Calabasas, CA 91302
Attn: Janice L. Miller, Esq.
[email protected]
3. Tenant: City of Malibu
a California municipal corporation
Tenant’s Notice Information: City of Malibu
with a concurrent copy to:
Trevor Rusin
Assistant City Attorney
3.1 Permitted Use (Article 5): Operating a fire recovery office, including activities related to assisting community residents with fire rebuild matters, providing counseling, support services, and administrative functions related to fire recovery efforts and General Office use and services.
3.2 Maximum Occupancy (Article 5): 20 employees
65273.00001\43200124.3
-iiiSUMMARY LEASE INFORMATION Landlord ____ Tenant _____ 08012023
4. Premises (Article 1):
4.1 Premises Address: 23805 Stuart Ranch Rd., Suite 240 Malibu, California 90265
4.2 Rentable Area: Approximately 2,947 “rentable” square feet
5. Term (Article 2):
5.1 Length of Term: 2 years
5.2 Rent Commencement Date: March 1, 2025
5.3 Estimated Possession Date (Section 2.1): March 1, 2025
5.4 Possession Date: Actual date Tenant takes possession of Premises with Wave’s Work substantially complete on or about February 12, 2025.
5.5 Lease Expiration Date: April 30, 2027
5.6 Lease Option to Extend Term: One (1) option to extend the term by Three (3) years.
6. Base Rent (Article 3):
6.1 Monthly Rent (Section 3.2): $14,882.00 per month for months 1-12 [subject to Free Rent Periods, as applicable]
6.2 Rental Increase (Section 3.2): 3% annually
6.3 Free Rent Periods: N/A
7. Additional Rent(Article 4):
7.1 Tenant’s Share: 8.04%
7.2 Monthly CAM charge (Section 3.2): $372.00 per month for months 1-12 (increased annually by 3%)
7.3 Base Year for Expenses (Section 4.2): 2025
65273.00001\43200124.3
-ivSUMMARY LEASE INFORMATION Landlord ____ Tenant _____ 08012023
7.4 Excess Operating Expenses (Section 4.2): Tenant shall be responsible for its proportionate share of increases in Real Estate Taxes and Operating Expenses over and above those incurred in the base year of 2025
8. Security Deposit / Relocation of Suite 235
Tenant (Article 21):
$14,882.00 + $2,500.00
9. Parking Spaces (Article 28): 20 unreserved parking spaces at no cost to Tenant
10. Wave’s Work/Tenant Improvements: See attached Exhibit “C”.
11. Brokers (Section 29.18):
12. Wave’s Work (Exhibit “C”)
[PARTIES TO COORDINATE DIRECTLY TO
CONFIRM DETAILS & FINISHES]
Wave and Tenant have agreed that Wave will construct
certain improvements within the Premises referred to as the “Wave’s Work”, as more particularly described in
Exhibit “C“, attached hereto and made a part hereof.
13. Guarantor None
Except as noted herein below, the foregoing Summary is hereby incorporated into and made a part of the Office Lease. The Section references in the Summary exist solely to indicate where such reference initially appears in the Office Lease document. Except as specified herein below, each such reference in the Office Lease document shall incorporate the applicable Summary information. However, in the event of any conflict between any reference contained in the Summary and the specific wording of the Office Lease, the wording of the Office Lease shall control.
Wave and Tenant hereby agree to the foregoing terms of this Summary.
LANDLORD:
WAVE ENTERPRISES, INC.,
a California nonprofit corporation
By: _______________________
Jeffrey Rohde
Vice President & CIO
TENANT:
CITY OF MALIBU,
a California municipal corporation
By: _______________________
Name:
Title:
65273.00001\43200124.3
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OFFICE LEASE
(CITY OF MALIBU - 23805 Stuart Ranch Rd., Suite 240, Malibu, California 90265) This Office Lease (which incorporates by this reference the preceding Summary of Office Lease Information (the “Summary”) attached to this Lease (the Office Lease and Summary are sometimes collectively referred to herein as the “Lease”)), by and between WAVE ENTERPRISES, INC., a California nonprofit public benefit corporation (“Wave” or “Landlord”), and CITY OF MALIBU, a California municipal corporation (“Tenant”), is made to have effect as of the last date of execution by the parties hereto (such date, the “Effective Date”).
Landlord and Tenant may be referred to together in this Lease as the “Parties”, and individually, as a “Party”.
ARTICLE 1
PREMISES, BUILDING, PROPERTY, AND COMMON AREAS
1.1 Premises, Building, Property, and Common Areas.
1.1.1 The Premises. Wave hereby leases to Tenant and Tenant hereby leases from Wave the “Premises”, as defined in Section 4 of the Summary, for the “Term”, at the rental, and upon all terms, covenants, and conditions set forth in this Lease, which shall first be improved by Wave’s Work, [and furnished as shall be agreed by Wave and Tenant. Said furnishings shall be based on the current furniture in possession of Landlord at the Premises as of the Possession Date; noting that, said furniture is to be used by the Tenant only during the Term of the Lease and as is to remain on the Premises at the end of the Lease]. The configuration of the Premises Floor Plan is shown on Exhibit A-1 attached hereto. Tenant acknowledges that it has made its own inspection of, and inquiries regarding, the Premises.
1.1.2 The Building and the Property. The Premises are a part of the office complex known as “Malibu Professional Park,” which contains two office buildings (located at 23805 Stuart Ranch Road and 23815 Stuart Ranch Road, respectively, referred to jointly as the “Stuart Ranch Buildings”), as shown in the Property Site Plan attached to this Lease as Exhibit A-2. The term “Building” shall mean the specific building (either 23805 Stuart Ranch Road or 23815 Stuart Ranch Road) in which the Premises are located. The term “Property” shall mean collectively (i) the two buildings, and the “Common Areas”, as that term is defined in Section 1.1.3 below.
1.1.3 Common Areas. Tenant shall have the non-exclusive right to use in common with other tenants in the Property, and subject to the rules and regulations referred to in Article 5 of this Lease, those portions of the Property which are provided, from time to time, for use in common by Wave and by Tenant and any other tenants of the Property, whether or not those areas are open to the general public (such areas, together with such other portions of the Property designated by Wave in its discretion, including certain areas designated to be shared by Wave and certain tenants are collectively referred to in this Lease as the “Common Areas”).
1.1.4 Wave’s Use and Operation of the Building, Property, and Common Areas. Wave reserves the right from time to time with written notice to Tenant (i) to close temporarily any part of the Common Areas; (ii) to make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of street entrances, parking spaces, driveways, ramps, entrances, exits, passages, stairways and other ingress and egress, direction of traffic, landscaped areas, loading and unloading areas, and walkways; (iii) to expand the Stuart Ranch Buildings; (iv) to add additional buildings and improvements to the Common Areas; (v) to designate land outside the Property to be part of the Property, and in connection with such additions to add additional buildings and common areas to the Property; (vi) to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Property or to any adjacent land, or any portion thereof; and (vii) to do and perform such other 65273.00001\43200124.3
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acts and make such other changes in, to, or with respect to, the Property, Common Areas, and Building, or the expansion thereof, as Wave may, in its sole and absolute discretion, deem to be appropriate. Unless required by law or as a result of casualty or condemnation, such modifications shall not materially and adversely impact Tenant’s signage, visibility of, use of, and access to the Premises and affect Tenant’s parking rights herein. Access for Tenant and Tenant’s invitees shall not materially and adversely affected and be unreasonably restricted during any such closures, changes, expansions, additions or other performances by Wave.
1.2 Calculation of Rentable Square Feet (Area). Wave and Tenant agree that the Usable Area of the Premises has been measured using the 2020 standards, published by the Building Owners’ and Managers’ Association (BOMA) as a guideline, and that Wave is utilizing a deemed add-on factor of 20% to compute the Rentable Area of the Premises.
Tenant represents that it has inspected the Premises it is to occupy and that the Building and the Property are acceptable to Tenant and suitable for Tenant’s intended use. Wave and Tenant agree that the statement of size of the Premises set forth in this Lease is a reasonable approximation, and the Rent for the Premises is not subject to revision whether or not the actual size of the Premises is more or less.
1.3 No Light, Air, or View Easement. Any diminution or shutting of light, air, or view by any structure which is now or may hereafter be erected on lands adjacent to the Building shall in no way affect this Lease, or impose any liability on Wave. Noise, dust, or vibration or ordinary incidents to new construction of improvements on lands adjacent to the Building, whether or not by Wave, shall in no way affect this Lease, shall not affect Tenant’s use or access to the Premises, or impose any liability on Wave. [PARTIES TO COORDINATE DIRECTLY RE WAVE’S WORK & TO CONFIRM DETAILS & FINISHES]
1.4 Condition of Premises. Tenant acknowledges that it has made its own inspection of and inquiries regarding the Premises, which are already improved. Therefore, except for the improvements otherwise mentioned in this Section 1.4, the work to be performed by Wave as set forth in Exhibit “C” (such work, “Wave’s Work”), and representations and warranties made by Landlord herein, Tenant accepts the Premises in their “as-is” condition.
Tenant further acknowledges that Wave has made no representation or warranty, express or implied, except as are contained in this Lease regarding the condition, suitability or usability of the Premises or the Property for the purposes intended by Tenant. The Premises have not undergone an inspection by a Certified Access Specialist and Wave makes no warranty or representation as to whether the Premises comply with the Americans with Disabilities Act (the “ADA”) or similar legislation. In the event that Tenant’s use of the Premises requires modifications or additions to the Premises in order to be in compliance, Tenant agreesto make any such necessary modifications and/or additions at Tenant’s sole cost and expense. Notwithstanding the foregoing, Landlord warrants as of the date it delivers Tenant possession of the Premises, the Premises’ building envelope, including roof membrane is watertight and the Premises’ building systems (HVAC, plumbing, electrical, and life/safety) are in good working order and repair. Prior to delivering the Premises, Landlord shall ensure and bear all costs associated with compliance with all applicable current building codes for the Premises and common areas, including, without limitation, the Americans with Disabilities Act (“ADA”) and its associated rules and regulations and any violations predating the Possession Date shall not be passed through to Tenant as an Operating Expense.
65273.00001\43200124.3
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ARTICLE 2
COMMENCEMENT DATE AND DELIVERY OF POSSESSION
2.1 Rent Commencement Date.
(a) The terms and provisions of this Lease shall be effective as of the Effective Date of this Lease.
The length of the term of this Lease (the “Term”) is set forth in Section 5.1 of the Summary, which Term shall commence on the Rent Commencement Date set forth in Section 5.2 of the Summary (the “Rent Commencement Date”), and shall expire on the date set forth in Section 5.3 of the Summary (the “Expiration Date”).
(b) Tenant’s taking possession of the Premises and/or commencing Tenant’s normal business operations in the Premises shall be deemed conclusive evidence that, as of the Rent Commencement Date, the Premises are in good order and repair on the date Tenant accepts delivery thereof.
Except as otherwise agreed in writing by the Parties before such date, Wave shall deliver possession of the Premises to Tenant free and clear of all tenancies and debris, with all of Wave’s Work complete on or before March 1, 2025 (such date, the “Estimated Possession Date”) for Tenant to begin move in process at no cost for February. Tenant may, but shall not be obligated to, accept possession of the Premises prior to the Estimated Possession Date.
2.2 Possession Date and Delay in Possession.
(a) Notwithstanding said Rent Commencement Date, if for a reasonable cause, Wave cannot deliver possession of the Premises to Tenant on the Estimated Possession Date, Wave shall not be subject to any liability therefore, nor shall such failure affect the validity of this Lease or the obligations of Tenant hereunder or extend the term hereof.
(b) Tenant shall not be obligated to pay Base Rent (as defined in Article 3 below) until thirty (30) days after possession of the Premises is tendered to Tenant (the actual date of such delivery, the “Possession Date”); provided, however, that if Wave shall not have delivered possession of the Premises within thirty (30) days of the Estimated Possession Date, Tenant may elect, at Tenant’s option, by notice in writing to Wave within ten (10) days thereafter, to: (1) cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder. If such written notice of Tenant is not received by Wave within said ten (10) day period, Tenant’s right to cancel this Lease hereunder shall terminate and be of no further force or effect. For the avoidance of doubt, Tenant will not be required to pay Base Rent or any additional charges until the conditions for the Possession Date under this Section
2.2 are met.
65273.00001\43200124.3
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2.3 Early Possession. If Tenant occupies the Premises prior to the Rent Commencement Date, such occupancy shall be subject to all provisions hereof, such occupancy shall not advance the termination date.
ARTICLE 3
BASE RENT & TERM
3.1 Payment of Rent.
(a) Base Rent shall be payable in advance on the first day of each and every calendar month throughout the Term, by electronic funds transfer pursuant to Landlord’s ACH deposit instructions attached as Exhibit E, or at such other place as Wave may designate in writing from time to time to Tenant. Rent for any fractional month shall accrue on a daily basis at a rate per day which is equal to 1/30 of the monthly Rent. All other payments or adjustments required to be made under the terms of this Lease that require proration on a time basis shall be prorated on the same basis. Wave’s current, completed Form W-9 (Request for Taxpayer Information and Certification) is attached as Exhibit F. Upon any assignment by Landlord of this Lease, Landlord shall cause such successor landlord to deliver to Tenant new ACH deposit instructions in the form attached as Exhibit E, and a completed Form W-9 with written notice to Tenant of such assignment. (b) Wave shall deliver to Tenant an invoice for the Security Deposit in the amount of $14,882.35 with Landlord’s signed Lease, and Tenant shall arrange for payment of such Security Deposit promptly following the Parties’ mutual execution and delivery of this Lease.
3.2 Base Rent Periods.
Commencing on the Rent Commencement Date and continuing throughout the Term, the monthly installments of Base Rent and “Monthly CAM Charges” (as defined in Article 4) shall be payable by Tenant in the amounts listed below, which rates shall escalate on a yearly basis at the rate of 3%, as follows:
Initial Term Base Rent/Mo Monthly
CAM Charges
Total Monthly
Payment
March 1, 2025-
February 28, 2026
$14,882.35 $372.00 $15,254.35
March 1, 2026-
February 28, 2027
$15,328.82 $383.16 $15,711.98
3.3 Term. The first month of the Term shall be the first full calendar month after the Rent Commencement Date occurs. After the first full month of Term, Tenant shall pay all Base Rent (and certain Additional Rent as provided in Article 4) in advance on the first day of each calendar month throughout the Term, and (ii) all other Additional Rent within fifteen (15) business days (or such longer period specifically stated in this Lease). Tenant shall make all payments to Wave as provided in Section 3.1(a), in immediately available funds without any abatement, set off or deduction whatsoever, except as expressly provided in this Lease. Tenant shall pay Rent immediately upon the same becoming due and payable, without demand therefor, and shall not be affected by Wave’s failure to submit statements to Tenant. Wave shall apply any payments received from Tenant to the oldest payment due from Tenant without regard to any designation by Tenant or any prior application of other payments by Wave. The provisions of Article 25 of this Lease relating to late charges and interest shall apply to these obligations.
65273.00001\43200124.3
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3.4 Rent During Term. Tenant shall pay the Base Rent plus Additional Rent immediately upon the same becoming due and payable.
ARTICLE 4
ADDITIONAL RENT
4.1 General Terms.
(a) As set forth in this Article 4, in addition to paying the Base Rent specified in Article 3 of this Lease, Tenant shall pay Tenant’s Share of the Operating Expenses reimbursable to Landlord under this Lease as “Additional Rent” (i.e., 8.04%]).
(b) Tenant shall pay Tenant’s Share of the actual Operating Expenses for the applicable Expense Year in installments of “Monthly CAM Charges” in the amounts designated in Section 3.2. (c) Tenant shall also pay Tenant’s Share of “Excess Operating Expenses” (as defined below) for any given Expense Year after the Base Year during the Term. (d) Landlord shall calculate and reconcile reimbursable Operating Expenses annually beginning January 1st of each Expense Year immediately following the Base Year, which Landlord shall deliver to Tenant in the form of an “Operating Expense Pass-Through Statement”. Landlord shall calculate Operating Expenses in accordance with generally accepted accounting principles ("GAAP") and prudent real estate management practices, consistently applied. If Tenant’s Share of any such increase payable hereunder as shown on the Operating Expense Pass-Through Statement is greater or less than the total amounts actually billed to and paid by Tenant during the year covered by such statement, then within thirty (30) days thereafter, Tenant shall pay any sums owed Wave or, if applicable, Tenant shall either receive a credit against any Base Rent and/or Additional Rent next accruing for any sum owed Tenant. If final determination is made of the Tenant’s Share of Operating Expenses allocated to the tenants of the Property is rendered after the expiration or earlier termination of this Lease and indicates that Tenant’s estimated payments have exceeded the total amount to which Tenant was obligated, then Wave shall issue a refund to tenant within thirty (30) days after Wave’s completion of such Operating Expense PassThrough Statement, or if Tenant’s estimated payment were less than the total amount to which Tenant was obligated, Tenant shall pay within thirty (30) days to Wave the amount as calculated. The provisions of this Article 4 shall survive the expiration or earlier termination of the Term.
4.2 Definitions. The following terms shall have the meanings set forth in this paragraph:
4.2.1 “Base Year” shall mean the Expense Year designated in Section 7.3 of the Summary, above (i.e., 2025). Operating Expenses for that Expense Year serve as the benchmark to determine Excess Operating Expenses for future years during the Term.
4.2.2 “Expense Year” shall mean each calendar year in which any portion of the Term falls, through and including the calendar year in which the Term expires.
4.2.3 “Excess Operating Expenses” means the amount of Operating Expenses in a given Expense Year in excess of Base Year Expenses.
4.2.4 “Operating Expenses” meanssubject to the exclusions from Operating Expenses in Section 4.2.4(f) below, the following costs incurred and actually paid in a referenced calendar year, including the Base Year as 65273.00001\43200124.3
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hereinafter defined, calculated assuming the Stuart Ranch Buildings are at least one hundred percent (100%) occupied:
(a) Property Administration. All costs of management, operation, maintenance and repair of the Property such as water and sewer charges; license, permit and inspection fees; fees for all accounting services rendered on behalf of Wave; air conditioning (including repair of same); heat; electricity for the Common Areas; labor; annual roof inspections; cost of all supplies, materials and labor used in the operation, repair, replacement and maintenance of the Property; cost of repairs and general maintenance of the Property (excluding repairs and general maintenance paid for by proceeds of insurance or by Tenant or other third parties); repairs, overlays and resurfacing of the parking area and restriping as necessary in such event; painting, sweeping, maintenance and repair of sidewalks, fountains, curbs and signs, landscape sprinkler systems, planting and landscaping; lighting and other utilities; directional signs and other markers and bumpers; storm drainage systems, and any other utility system; personnel to implement such services; garbage, trash, rubbish and waste removal from the Common Areas; engineering and architectural services necessary in Wave’s discretion to complete Wave’s repair and maintenance obligations under this Lease; all costs with respect to repairs and maintenance of utility facilities without regard to whether such utility facilities reside within the Buildings or in the Common Areas (including pipes and conduits); painting of the Buildings (provided that the painting shall not be performed more than once every four years); cleaning and janitorial services for the Common Areas; guard services; supplies; materials; equipment; tools; and removal (when required in Wave’s determination) of telephone internet, television and similar cabling, lines and wiring, if any, in the Property. Notwithstanding the above inclusions, Operating Expenses shall not include: (a) mortgage and debt service on any debt instrument which encumbers the Stuart Ranch Buildings; (b) administrative expenses not related to management or operation of the Stuart Ranch Buildings; (c) Landlord general overhead and general administrative expenses not related to management or operation of the Stuart Ranch Buildings; (d) depreciation (except for the amortization of capital improvements and replacements); (e) any and all costs of selling, exchanging, or refinancing the Stuart Ranch Buildings including any escrow charges, documentary transfer taxes, loan fees and points; (f) costs incurred by Landlord for the repair of damage to the Stuart Ranch Buildings to the extent Landlord is reimbursed by insurance proceeds from policies paid for in total or in part by Tenant; (g) costs incurred with respect to the installation of tenant improvements made for tenants in the Stuart Ranch Buildings or incurred in renovating or otherwise decorating, painting, or redecorating vacant space for tenants of the Stuart Ranch Buildings; (h) leasing commissions, attorneys’ fees, and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants or other occupants of the Stuart Ranch Buildings not related to the Common Areas, (i) costs incurred by Landlord to enforce the provisions of any lease of space in the Stuart Ranch Buildings due to the violation by any tenant of the Stuart Ranch Buildings of the terms and conditions of any lease; (j) all items and services for which Tenant or any other tenant of the Stuart Ranch Buildings reimburses Landlord (other than the pass-through of Common Area Expenses); (k) tax penalties incurred as a result of Landlord’s negligence or inability or unwillingness to make payments when due (except to the extent such interest or penalties are attributable to the late payment of taxes by Tenant), (l) any land held or bought for future development, and (m) all items or services for which any other tenant manages and bears the cost. (b) Certain Capital Improvements. The cost of or the allocable portion of the following capital improvements over their useful life as determined by GAAP accounting rules made to the Stuart Ranch Buildings by Wave during the Term, to the extent that such capital improvements: (1) reduce other direct Operating Expenses, and are made to the Building by Wave after the Rent Commencement Date; or (2) are required under any governmental law or regulation that was not applicable to the Stuart Ranch Building as of the Rent Commencement Date.
(c) Real Estate Taxes. Operating Expenses shall also include all general and special real estate taxes, increases in assessments, or special assessments, and any other ad valorem taxes, rates, levies and 65273.00001\43200124.3
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assessments paid by Landlord during a calendar year (or portion thereof) upon or with respect to the Property and the personal property used by Wave to operate the Property, whether paid to any governmental or quasigovernmental authority, and all taxes specifically imposed in lieu of any such taxes (but excluding taxes for which Tenant or other tenants in the Stuart Ranch Buildings are liable) including fees of counsel and experts, reasonably incurred by, or reimbursable by Wave in connection with any application for a reduction in the assessed valuation of property and/or the land thereunder or for a judicial review thereof (collectively “Appeal Fees”), but solely to the extent that the Appeal Fees result directly in a reduction of taxes otherwise payable by Tenant. However, in no event shall the portion of Operating Expenses used to calculate any billing to Tenant attributable to real estate taxes and assessments for any expense year be less than the billing for real estate taxes and assessments during the base year. “Real Property Taxes” do not, however, include Landlord’s federal or state income, franchise, inheritance, estate, gift, transfer taxes in connection with the sale or transfer of all or part of the Stuart Ranch Buildings, or taxes incurred as a result of Landlord’s entity (i.e. charges assessed by the Franchise Tax Board).
(d) Insurance Expenses. Operating Expenses shall also include, but not be limited to, the premiums for the following insurance coverage: all-risk, structural, fire, boiler and machinery, liability, earthquake and for replacement of tenant improvements, and for such other coverage(s), and at such policy limit(s) as Wave deems reasonably prudent and/or is required to procure by any lender or ground lessor, which coverage and limits Wave may, in Wave’s reasonable discretion, change from time to time. (e) Wastewater Fees. Operating Expenses shall also include any costs, fees, or assessments related to the maintenance, service, improvement, or use of the centralized wastewater plant operated and maintained by the City of Malibu as used by the Property, including but not limited to the payment of Tenant’s Share of water discharge fees for the centralized waste water plant.
4.2.5 Audit. If Tenant disputes any element of any statement for the Operating Expenses and requests an audit within one (1) year after receipt of the same, Tenant shall have the right to examine, to copy and to have an audit conducted of Landlord’s books and records pertaining to Operating Expenses, taxes and other Additional Rent. Such audit shall be conducted by a national certified public accounting firm (the "auditing firm") retained by Tenant, or by an employee of Tenant; provided, however, that any auditing firmengaged by Tenant for such purpose may not be compensated in any manner based on the amount of overpayments alleged to have been made by Tenant or any actual savings to Tenant. All expenses of the audit shall be borne by Tenant unless such audit discloses an overstatement of Operating Expenses, taxes or other Additional Rent of three percent (3%) or more, in which case Landlord shall promptly reimburse Tenant for the reasonable cost of the audit. If the results of the audit reflect that Tenant has made an underpayment, Tenant shall reimburse Landlord for the amount of the underpayment within thirty (30) days following such determination. If the results of the audit reflect that Ten-ant has made an overpayment, Landlord shall reimburse Tenant for the amount of the overpayment within thirty (30) days following such determination. Landlord shall maintain all books and records for a period of not less than three (3) years following each calendar year during the Term.
ARTICLE 5
USE OF PREMISES
5.1 Permitted Use. The Premises shall be used solely for the purpose set forth in Section 3.1 of the Summary (i.e., Fire recovery services and General Office), which purpose is consistent with the character of the Property, and Tenant shall not use or permit the Premises to be used for any other purpose or purposes whatsoever without the prior written consent of Wave. Tenant further covenants and agrees that Tenant shall not use, or suffer or 65273.00001\43200124.3
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permit any person or persons to use, the Premises or any part thereof for any use or purpose contrary to the provisions of the Rules and Regulations attached to this Lease as Exhibit B (Landlord’s “Rules and Regulations”).
Tenant shall comply with all recorded covenants, conditions, and restrictions now or hereafter affecting the Property, from and after the date Wave delivers Tenant copies of same by delivery of written notice.
Tenant covenants and agrees that it shall not use, suffer or permit any person(s) to use all or any portion of the Premises for any purpose in violation of the laws of the United States of America, the State of California, or the ordinances, regulations, or requirements of the City of Malibu or County of Los Angeles, or other lawful authorities having jurisdiction over the Stuart Ranch Buildings.
Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or unreasonably interfere with the rights of other tenants or occupants of the Stuart Ranch Buildings. Tenant shall not use or allow the Premises to be used for any pornographic or violent purposes, nor shall Tenant cause, commit, maintain, or permit the continuance of any nuisance or waste in, on, or about the Premises. Tenant shall not use the Premises in any manner that in Wave’s reasonable judgment would adversely affect or interfere with any services Wave is required to furnish to Tenant or to any other tenant or occupant of the Stuart Ranch Buildings, or that would interfere with or obstruct the proper and economical rendition of any such service. Tenant shall not use the Premises in any manner that causes cancelation of or an increase in the cost of Wave’s insurance.
5.2 Occupancy Density. Tenant shall control Tenant’s employees, agents, independent contractors, assignees, and subtenants in such a manner that the number of persons occupying the Premises does not at any time exceed the number of persons set forth in Section 3.2 of the Summary.
5.3 Rules and Regulations. A copy of Wave’s Rules and Regulations for the Premises and the Property are attached hereto as Exhibit “B” to the Lease and Tenant agrees to abide by the same. Wave shall have the right to add to, delete or modify the existing Rules and Regulations as set forth in Exhibit “B”, including the right to establish from time to time such additional reasonable rules and regulations as Wave shall deem appropriate for the protection of the Premises and the Property, provided that such additional rules and regulations (i) shall not materially diminish Tenant’s rights under this Lease, (ii) be applicable to all similarly situated and similarly sized tenants of the Property, (iii) be uniformly enforced against all such similarly situated and similarly sized tenants, and (iv) not decrease Tenant’s rights hereunder nor increase Tenant’s obligations hereunder. Tenant agrees to abide by such revised Rules and Regulations after Wave’s delivery of same to Tenant by written notice.
ARTICLE 6
SERVICES AND UTILITIES
6.1 Standard Tenant Services. Wave shall provide the following services on all normal business days (Mondays through Fridays, 8:00 am until 5:00 pm) during the Term. The use of the Stuart Ranch Buildings on Saturdays and Sundays is subject to Section 6.3(b), below.
6.1.1 Wave shall provide heating and air conditioning for normal comfort (Building Standard is 72 degrees) for normal office use in the Premises, from Monday through Friday, during the hours set forth in Section
6.1, above, except for the date of observation of New Year’s Day, Washington’s Birthday, Memorial Day, Juneteenth, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and, at Wave’s reasonable discretion, other locally or nationally recognized holidays (collectively, the “Holidays”).
6.1.2 Wave shall provide adequate electrical wiring and facilities up to point of entry to the interior of the Premises, and shall provide power for normal general office use. Tenant shall bear the cost of replacement of lamps, 65273.00001\43200124.3
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starters and ballasts for lighting fixtures within the Premises if required for any reason other than normal wear and tear. Tenant shall bear the cost of any additional electrical needs or upgrades as required by Tenant’s use of the Premises.
6.1.3 Tenant shall be responsible for the cost of basic janitorial services for the interior of the Premises, which shall include ordinary trash removal and light cleaning, which janitorial service Wave shall arrange using Wave’s pre approved janitorial service. The cost of such basic janitorial services is included in Tenant’s Monthly CAM Expenses. Wave shall not be responsible for the cleaning of kitchen and storage areas, and Wave shall not be responsible for extraordinary cleaning services, including but not limited to carpet cleaning, furniture cleaning, steam cleaning, vinyl, terrazzo, concrete, and tile floor cleaning. Wave shall coordinate with Tenant to arrange any such extraordinary cleaning services at Tenant’s expense promptly upon receipt of Tenant’s written request therefor.
6.2 Electricity. Notwithstanding anything to the contrary in this Lease, Tenant’s Monthly CAM Charges include payment to Wave of Tenant’s pro rata share of all costs of electricity and electrical services. Wave shall determine in its reasonable discretion Tenant’s pro-rata share of usage of electricity and electrical service based upon Wave’s determination of Tenant’s usage compared to other tenants of the Property.
6.3 Over-Standard Tenant Use.
(a) Tenant shall not, without Wave’s prior written consent, use heat generating machines such as space heaters, machines other than normal fractional horsepower office machines, or equipment or lighting other than Building standard lights in the Premises, which may affect the temperature otherwise maintained by the air conditioning system, deemed to be 72 degrees. (b) If Tenant desires to use heat, ventilation or air conditioning during hours other than those for which Wave is obligated to supply or during Saturdays, Sundays or Holidays, such use of additional utilities shall be included in the Base Rate and not be billed separately. (c) Tenant shall not install or use machinery or equipment in or about the Premises that uses excess water, lighting or power, or suffer or permit any act that causes extra burden upon the utilities or services over standard office usage of the Property, including but not limited to the installation or use of any air conditioning or cooling system for any computer servers, electronic equipment or related service rooms. Wave shall require Tenant to reimburse Wave for any excess expenses or costs that may arise out of a breach of this Section by Tenant; provided, however, if Landlord determines Tenant is using Landlord provided services in an amount or for a period in excess of Tenant’s pro-rata share thereof, then, Landlord shall promptly notify Tenant in writing of such additional or excess use, and specify the reasonable amount which Landlord reserves the right to charge Tenant as Additional Rent as reimbursement for the direct cost thereof after the date of such notice. Wave may, in its sole and absolute discretion, or upon Tenant’s written request shall, install at Tenant’s expense, supplemental equipment and/or separate metering applicable to Tenant’s excess usage or loading.
6.4 Interruption of Use. Except in the case of Wave’s gross negligence or willful misconduct or the gross negligence or willful misconduct of Wave’s agents, contractors, directors, employees, licensees, officers, partners, or shareholders, Tenant hereby releases Wave from any liability for damages, for any failure or delay in furnishing any of the services or utilities specified in this Article 6, or for any diminution in the quality or quantity thereof. If Landlord fails to commence performance of (or cause commencement of performance), any required maintenance or make any repair or replacement of the Common Areas, which failure continues for thirty (30) days after Tenant’s notice to Landlord of the need for such repairs or maintenance (except in the case of any emergency in which event said grace 65273.00001\43200124.3
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period shall be reduced to three (3) business days after notice or such shorter time period as is reasonable under the circumstances), then Tenant has the right (but not the obligation) to make the repair or replacement for Landlord, and Landlord shall reimburse Tenant for its actual costs incurred therein, plus a 5% fee, within thirty (30) days after demand therefor, accompanied by reasonable supporting documentation. If Landlord fails to reimburse Tenant for any amounts due to Tenant under this Lease within thirty (30) days of when due, such amount shall accrue Interest from the date due until paid. Additionally, Landlord shall complete and pay for any repairs to the Premises caused by the gross negligence or willful misconduct of Lessor or its agents, contractors, or employees. Notwithstanding the above, Landlord is not responsible for any power shut offs and/or other interruptions that affect the use of the Premise not directly caused by the Landlord.
Tenant’s release of Wave’s liability shall be applicable when such failure, delay, or diminution is occasioned, in whole or in part, by repairs, replacements, or improvements, by any strike, lockout or other labor trouble, by Wave’s inability to secure electricity, water, or other fuel at the Stuart Ranch Buildings after Wave’s reasonable effort to do so, by accident or casualty whatsoever, by act or default of Tenant or parties other than Wave, or by any other cause beyond Wave’s reasonable control. Such failures, delays, or diminution shall never be deemed to constitute a constructive eviction or disturbance of Tenant’s use and possession of the Premises, or serve to relieve Tenant from paying Rent or performing any of its obligations under the Lease. Furthermore, Wave shall not be liable under any circumstances for a loss of, injury to, or interference with, Tenant’s business, including, without limitation, any loss of profits occurring or arising through or in connection with or incidental to Wave’s failure to furnish any of the services or utilities required by this Article 6.
ARTICLE 7
REPAIRS
7.1 Except as otherwise provided in Article 6, above, Tenant shall, at Tenant’s own expense, keep the Premises, including all non-structural improvements, fixtures, appliances, and furnishings therein, in good order, repair, and condition at all times during the Term, ordinary wear and tear excepted. In addition, Tenant shall, at Tenant’s own expense, but under the supervision and subject to the prior approval of Wave, which shall not be unreasonably withheld, conditioned, or delayed, and within thirty (30) days after written notice by Landlord of such failure (except that when the nature is such that more than thirty (30) days are reasonably required for its performance, then Tenant shall not be deemed in default if it commences performance within the thirty (30) day period and thereafter , promptly and adequately repair all damage to the Premises, including the fixtures, appliances, and equipment and replace or repair all damaged, broken, or worn fixtures and appurtenances; provided however, that, at Wave’s option, or if Tenant fails to make such repairs, Wave may, but need not, make such repairs and replacements, and Tenant shall pay Wave the reasonable cost thereof, including a 5% percentage of the cost thereof sufficient to reimburse Wave for all overhead, general conditions, fees and other costs or expenses arising from Wave’s involvement with such repairs and replacements forthwith upon being billed for same. Wave may, but shall not be required to, enter the Premises at all reasonable times upon reasonable written notice to Tenant (24 business hours conclusively deemed to be reasonable) and an opportunity to have Tenant representative present to make such repairs, alterations, improvements, or additions to the Premises or to the Property or to any equipment located in the Property as Wave shall desire, or deem necessary, or as Wave may be required to do by governmental or quasigovernmental authority or court order or decree.
7.2 Except to the extent otherwise provided in this Lease, Tenant hereby waives all right to make repairs at Wave’s expense under the provisions of Section 1932(1), 1941, and 1942 of the Civil Code of California. 65273.00001\43200124.3
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ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 Wave’s Consent to Alterations. Tenant may not make any improvements, alterations, additions, or changes to the Premises (collectively, “Alterations”) without first procuring the prior written consent of Wave to such Alterations, which consent shall be requested by Tenant not less than fifteen (15) days prior to the commencement thereof, and which consent shall not be unreasonably withheld, conditioned, or delayed by Wave; provided however, that Tenant may make without Wave’s consent cosmetic changes to the interior of the Premises, not requiring any structural or other substantial modifications to the Premises. If any alterations, additions or improvements are made by Tenant after the Commencement Date which result in Wave being required to make any alterations to other portions of the Building in order to comply with any applicable statutes, ordinances or regulations, then Tenant shall reimburse Wave upon demand for all costs and expenses in making such alterations.
8.2 Manner of Construction. Wave may impose, as a condition of its consent to any and all Alterations or repairs of the Premises or about the Premises, such requirements as Wave in its reasonable discretion may deem desirable, including, but not limited to, the requirement that upon Wave’s request, Tenant shall, at Tenant’s expense, remove such Alterations upon the expiration or any early termination of the Lease Term. Such Alterations shall be constructed and such repairs performed in conformance with any and all applicable federal, state, county or municipal laws, rules and regulations and pursuant to a valid building permit, issued by the City of Malibu, all in conformance with Wave’s construction rules and regulations. All work with respect to any Alterations must be done in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at all times be a complete unit except during the period of work. The work of any such Alterations shall be performed in such mannerso as not to obstruct access to the Property or any portion thereof, by any other tenant of the Property, and so as not to obstruct the business of Wave, or other tenants in the Property, or interfere with the labor force working in the Property. In addition to Tenant’s obligations under Article 9 of this Lease, if Wave so requests upon completion of any Alterations by Tenant, Tenant agrees to cause a Notice of Completion to be recorded in the office of the Recorder of the County of Los Angeles in accordance with Section 3093 of the Civil Code of the State of California or any successor statute, and Tenant shall deliver to the Property management office a reproducible copy of the “as built” drawings of the Alterations. This Notice of Completion applies solely to the Tenant’s Work performed by Tenant and its agents and/or contractors. Wave and its agents and contractors will be responsible for filing a Notice of Completion for all Wave related work.
8.3 Payment for Improvements. In the event Tenant orders any Alterations or repair work directly from Wave, or from the contractor selected by Wave, and the charges for such work are payable by Tenant hereunder, such charges shall be deemed Additional Rent under this Lease, payable within thirty (30) days of billing.
8.4 Wave’s Property. All Alterations, improvements, and/or fixtures which may be installed or placed in or about the Premises, and all signs installed in, on, or about the Premises, from time to time, shall be at the sole cost of Tenant and shall become the property of Wave at the end of the Term, except for those alterations, improvements, and/or fixtures which Wave, in its sole and absolute discretion, elects in writing not later than ninety (90) days prior to the expiration or earlier termination of the Term to remain the property of Tenant. 65273.00001\43200124.3
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ARTICLE 9
COVENANT AGAINST LIENS
Tenant has no authority or power to cause or permit any lien or encumbrance of any kind whatsoever, whether created by act of Tenant, operation of law, or otherwise, to attach to or be placed upon the Property or Premises, and any and all liens and encumbrances created by Tenant shall attach to Tenant’s interest only. Wave shall have the right at all times to post and keep posted on the Premises any notice which it deems necessary for protection from such liens. Tenant covenants and agrees not to suffer or permit any lien of mechanics or materialmen or others to be placed against the Property, the Building or the Premises, or any portion thereof, with respect to work or services claimed to have been performed for or materials claimed to have been furnished to Tenant or the Premises, and, in case of any such lien attaching or notice of any lien, Tenant covenants and agrees to cause it to be immediately released and removed of record. Notwithstanding anything to the contrary set forth in this Lease, in the event that such lien is not released and removed on or before the date occurring fifteen (15) business days after notice of such lien is delivered by Wave to Tenant, Wave, at its sole option, may immediately take all action necessary to release and remove such lien, without any duty to investigate the validity thereof, and all sums, costs and expenses, including reasonable attorneys’ fees and costs, incurred by Wave in connection with such lien shall be deemed Additional Rent under this Lease and shall be due and payable by Tenant within thirty (30) business days after notice thereof.
ARTICLE 10
INSURANCE
10.1 Indemnification and Waiver.
10.1.1 To the extent not prohibited by law, Wave, its partners, sub partners, and its and their respective officers, agents, servants, employees, and independent contractors (collectively, “Wave Parties”) shall not be liable for any damage either to person or property or resulting from the loss of use thereof, which damage is sustained by Tenant, unless said damage or loss of use is the sole and direct result of Wave’s willful misconduct or gross negligence. Tenant shall indemnify, defend, protect, and hold harmless the Wave Parties from any and all loss, cost, damage, expense, and liability (including without limitation court costs and reasonable attorneys’ fees) incurred by Wave in connection with or arising from any event or occurrence in, on or about the Premises caused by Tenant in direct violation of this Lease after the Possession Date and during the Term; provided that the terms of the foregoing indemnity shall not apply to the gross negligence or willful misconduct of Wave.
10.1.2 To the extent not prohibited by law, Tenant, its partners, sub partners, and its and their respective officers, agents, servants, employees, and independent contractors (collectively, “Tenant Parties”) shall not be liable for any damage either to person or property, or resulting from the loss of use thereof, which damage is sustained by Wave, unless said damage or loss of use is the sole and direct result of Tenant’s willful misconduct or negligence. Wave shall indemnify, defend, protect, and hold harmless the Tenant Parties from any and all loss, cost, damage, expense, and liability (including without limitation, court costs and reasonable attorneys’ fees) directly incurred by Tenant Parties in connection with or arising from any event or occurrence in, on or about the Premises caused by Wave in direct violation of this Lease after the Possession Date and during the Term; provided that the terms of the foregoing indemnity shall not apply to the negligence or willful misconduct of Tenant.
10.1.3 The provisions of this Section 10.1 shall survive the expiration or sooner termination of this Lease with respect to any claims or liability occurring prior to such expiration. 65273.00001\43200124.3
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10.2 Tenant’s Compliance with Wave’s Fire and Casualty Insurance.
10.2.1 Tenant shall, at Tenant’s expense, comply with all insurance company requirements for insurance secured by Wave pertaining to the use of the Premises that Wave shall deliver to Tenant by written notice specifying same.
10.2.2 Wave agrees to carry during the Lease Term and any Renewal Term (as defined in Article 30):
(1) “all-risk” commercial property insurance in the amount of the full replacement values of the Stuart Ranch Buildings (including coverage for earthquake, flood, and/or windstorm if the Premises is in an area where such hazards are known risks and such insurance is reasonably available); and (2) casualty and liability insurance coverage for the Property and Stuart Ranch Buildings equivalent to or in excess of the coverage typically carried by owners of other comparable office buildings in the Malibu, California area, but not less than (A) One Million ($1,000,000) Dollars for any one occurrence, and (B) Three Million ($3,000,000) Dollars in aggregate, for injury to or death of any one or more persons and property damage or destruction.
10.3 Tenant’s Insurance. Tenant shall maintain the following coverage(s) in the following amounts:
10.3.1 Commercial General Liability Insurance covering the insured against claims of bodily injury, personal injury and property damage arising out of Tenant’s operations, assumed liabilities or use of the Premises, including contractual liability for limits of liability not less than:
(a) Bodily Injury and Property: $1,000,000 each occurrence (b) Damage Liability Personal: $2,000,000 annual aggregate (c) Injury Liability: $1,000,000 each occurrence
$2,000,000 annual aggregate
(d) Insured’s participation: 0%
10.3.2 Physical Damage Insurance covering (i) all office furniture, trade fixtures, office equipment, merchandise, and all other items of Tenant’s property on the Premises installed by, for, or at the expense of Tenant, (ii) the Tenant Improvements, and (iii) all other improvements, alterations and additions to the Premises.
Such insurance shall be written on an “all risks” of physical loss or damage basis, for the full replacement cost value new without deduction for depreciation of the covered items and in amounts that meet any co-insurance clauses of the policies of insurance and shall include a vandalism and malicious mischief endorsement, sprinkler leakage coverage and earthquake sprinkler leakage coverage.
10.3.3 Tenant reserves the right to self-insure any of its obligations under this Lease or carry any insurance required by this Lease under a blanket policy, participation in a risk pool, or self-insured retention.
10.4 Form of Policies. The minimum limits of policies of insurance required of Tenant under this Lease shall in no event limit the liability of Tenant under this Lease. Such insurance shall (i) name Wave, and any other party it so specifies, as an additional insured (except not for the coverage required by Section 10.3.2); (ii) specifically cover the liability assumed by Tenant under this Lease; (iii) with the exception of any wholly-owned captive insurance coverage, be issued by an insurance company having a rating of not less than “A-VII” by AM. Best, or which is otherwise reasonable acceptable to Wave and licensed to do business in the State of California; (iv) where additional insured status applies, be primary insurance as to all claims hereunder and provide that any insurance carried by Wave is excess and is non-contributing with any insurance requirement of Tenant; (v) provide that said insurance shall not be canceled or coverage changed unless thirty (30) days’ prior written notice shall have been given to Wave and any mortgagee of Wave; and (vi) where additional insured status applies, contain a cross liability endorsement or 65273.00001\43200124.3
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severability of interest clause acceptable to Wave. Tenant shall deliver said certificates thereof to Wave on or before the Rent Commencement Date and within ten (10) days of the expiration dates thereof.
10.5 Subrogation. Wave and Tenant agree to have their respective insurance companies issuing property damage insurance waive any rights of subrogation that such companies may have against Wave or Tenant, as the case may be, so long as the insurance carried by Wave and Tenant, respectively, is not invalidated thereby. As long as such waivers of subrogation are contained in their respective insurance policies, Wave and Tenant hereby waive any right that either may have against the other on account of any loss or damage to their respective property to the extent such loss or damage is insurable under policies of insurance for fire and all risk coverage, theft, or other similar insurance.
10.6 Additional Insurance Obligations. Tenant shall carry and maintain during the entire Term, at Tenant’s sole cost and expense, increased amounts of the insurance required to be carried by Tenant pursuant to this Article 10, and such other reasonable types of insurance coverage and in such reasonable amounts covering the Premises and Tenant’s operations therein, as determined in Wave’s sole but reasonable discretion.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 Repair of Damages to Premises by Wave. Tenant shall promptly notify Wave of any damage to the Premises resulting from fire or any other casualty. If the Premises or any Common Areas serving or providing access to the Premises shall be damaged by fire or other casualty, Wave shall promptly and diligently, subject to reasonable delays for insurance adjustment or other matters beyond Wave’s reasonable control, and subject to all other terms of this Article 11, restore the base, shell, and core of the Premises and such Common Areas. Such restoration shall be to substantially the same condition (i.e. of like quality and character) of the base, shell, and core of the Premises and the Common Areas prior to the casualty, except for modifications required by zoning and building codes and other laws or by the holder of a mortgage on the Building or Property or any other modifications to the Common Areas deemed desirable by Wave, provided that access to the Premises and any common restrooms serving the Premises shall not be materially impaired. Upon the occurrence of any damage to the Premises, Tenant shall assign to Wave (or to any party designated by Wave) all insurance proceeds payable to Tenant under Tenant’s insurance which relate to Tenant Improvements, trade fixtures and all installed items of Tenant property, and Wave shall diligently repair any injury or damage to the Tenant Improvements installed in the Premises and shall return such Tenant Improvements to their original condition; provided that if the cost of such repair by Wave exceeds the amount of insurance proceeds actually received, at the commencement of repairs, by Wave from Tenant’s insurance carrier, as assigned by Tenant, the cost of such repairs shall be paid by Tenant to Wave prior to Wave’s repair of the damage. In connection with such repairs and replacements, Tenant shall, prior to the commencement of construction, submit to Wave, for Wave’s review and approval, all plans, specifications, and working drawings relating thereto, and Wave shall select the contractors to perform such improvement work. Wave shall not be liable for any inconvenience or annoyance to Tenant or its visitors, or injury to Tenant’s business resulting in any way from such damage or the repair thereof; provided however, that if such fire or other casualty shall have damaged the Premises or Common Areas necessary to Tenant’s occupancy, and if such damage is not the result of the negligence or willful misconduct of Tenant or Tenant’s employees or contractors, Wave shall allow Tenant a proportionate and equitable abatement of Rent during the time and to the extent Tenant determines the Premises are unfit for occupancy for the purposes permitted under this Lease, and not available for use by Tenant as a direct result thereof.
11.2 Wave’s Option to Repair. Notwithstanding the terms of Section 11.1 of this Lease, Wave may elect not to rebuild and/or restore the Premises, Building and/or Property or any portion thereof; and instead terminate this Lease by notifying Tenant in writing of such termination within sixty (60) days after the date of damage, such notice 65273.00001\43200124.3
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to include a termination date giving Tenant ninety (90) days to vacate the Premises (or such shorter period Tenant may request in writing), if the Building or Property shall be damaged by fire or other casualty or cause, whether or not the Premises are affected, and one or more of the following conditions is present: (i) repairs cannot reasonably be completed within one hundred twenty (120) days after the date of damage (when such repairs are made without the payment of overtime or other premiums); or (ii) the damage is not fully covered, except for deductible amounts, by Wave’s insurance policies.
11.3 Waiver of Statutory Provisions. The provisions of this Lease, including this Article 11, constitute an express agreement between Wave and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, the Building or the Property, and any statute or regulation of the State of California, including, without limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with respect to any rights or obligations concerning damage or destruction in the absence of all express agreement between the parties and any other statute or regulation now or hereafter in effectshall have no application to this Lease or any damage or destruction to all or any part of the Premises, the Building, or the Property or any portion thereof.
11.4 Damage Near End of Term. In the event that the Premises, the Building, or the Property or any portion thereof is destroyed or damaged to any substantial extent during the last eighteen (18) months of the Term, then notwithstanding anything contained in this Article 11, either Party shall have the option to terminate this Lease by giving written notice to the other of the exercise of such option within twenty (20) days after such damage or destruction, in which event this Lease shall cease and terminate as of the date of such notice, Tenant shall pay the Base Rent and Additional Rent, properly apportioned up to such date of damage, and both parties hereto shall thereafter be freed and discharged of all further obligations hereunder, except as provided for in provisions of this Lease which by their terms survive the expiration or earlier termination of the Term.
ARTICLE 12
NONWAIVER
No waiver of any provision of this Lease shall be implied by any failure to enforce any remedy on account of the violation of such provision, even if such violation shall continue or be repeated subsequently, and any waiver of any provision of this Lease may only be in writing signed by the party so waiving. Additionally, no express waiver shall affect any provision other than the one specified in such waiver and then only for the time and in the manner specifically stated in such written waiver. No receipt of monies by Wave from Tenant after the termination of this Lease shall in any way alter the length of the Term or of Tenant’s right of possession hereunder, or after the giving of any notice shall reinstate, continue or extend the Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit, or after final judgment for possession of the Premises, Wave may receive and collect any Rent due. Additionally, no surrender of possession of any part of the Premises during the Term shall release Tenant from any of its obligations hereunder unless accepted in writing by Wave.
ARTICLE 13
CONDEMNATION
If the whole or any part of the Premises, Building or Property or any portion thereof shall be taken by power of eminent domain or condemned by any competent authority for any public or quasi-public use or purpose, or if Wave shall grant a deed or other instrument in lieu of such taking by eminent domain or condemnation, either Party shall have the option to terminate this Lease upon sixty (60) days’ notice, provided such notice is given no later than one hundred eighty (180) days after the date of such taking, condemnation, reconfiguration, vacation, 65273.00001\43200124.3
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deed or other instrument. If more than twenty five percent (25%) of the rentable square feet of the Premises is taken, or if Tenant determines access to the Premises is substantially impaired, Tenant shall have the option to terminate this Lease upon ninety (90) days’ notice, provided such notice is given no later than one hundred eighty (180) days after the date of such taking. Wave shall be entitled to the entire award or payment in connection therewith, except that Tenant shall have the right to file any separate claim available to Tenant for any taking of Tenant’s personal property and fixtures belonging to Tenant and removable by Tenant upon expiration of the Term pursuant to the terms of this Lease, its leasehold interest, goodwill, loss of business, and for moving expenses, so long as such claims do not diminish the award available to Wave with respect to the Building or Property or its mortgagee, and such claim is payable separately to Tenant. All Rent shall be apportioned as of the date of such termination, or the date of such taking, whichever shall first occur. If any part of the Premises shall be taken, and this Lease shall not be terminated, the Rent shall be proportionately and equitably abated for the portion of the Premises for the part of the Premises so taken.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 Permission Required for Assignment or Sublet. Except for a Permitted Transfer, unless Wave’s prior written consent has been given, which consent shall not be unreasonably withheld, conditioned and/or delayed (subject to the express provisions of this Article 14), this Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law, nor shall Tenant:
(a) assign Tenant’s interest in this Lease; or
(b) sublet the Premises or any part thereof or permit the Premises or any part thereof to be utilized by anyone other than Tenant, whether as by a concessionaire, franchisee, licensee, permittee, or otherwise (collectively, a “sublease”).
In addition, except for Transfers under clauses (a) or (b), Tenant shall not mortgage, pledge, encumber, or otherwise transfer this Lease, the Term and/or estate hereby granted or any interest herein without Wave’s prior written consent, consent may be granted or withheld in Wave’s sole and absolute discretion.
Any assignment, mortgage, pledge, encumbrance, transfer, or sublease (collectively, any “Transfer”) without Wave’s prior written consent shall be voidable, and, in Wave’s sole election, shall constitute a material default under this Lease.
14.2 Voluntary Assignment Due to Changes in Structure of Tenant. Notwithstanding the provisions of Section 14.1, Tenant shall have the right during the Initial Lease Term and any subsequent Renewal Term, to Sublease or Assign all or any portion of the Premises to a related entity or affiliate, without Wave’s approval or consent, and shall be entitled to keep one hundred percent (100%) of any profits from such Sublease or Assignment.
In addition, Tenant shall have the right to Sublease or Assign the Premises to unrelated entities with the Wave’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any “net” profits from subleasing shall be divided equally between Wave and Tenant after all subleasing expenses have been deducted.
Wave shall not have the ability to recapture any of Tenant’s Premises during the initial Lease Term and any subsequent Renewal Term.
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14.3 Request to Assign or Sublease. If at any time during the Term, Tenant wishes to assign this Lease or any interest therein, or to sublet all or any portion of the Premisesthen at least thirty (30) days prior to the date when Tenant desires the assignment or sublease to be effective, Tenant shall give written notice to Wave setting forth the name, address, and business of the proposed assignee or sublessee, business and personal credit applications completed on Wave’s standard application forms, and information (including references and such financial documentation as Wave shall reasonably prescribe) concerning the character and financial condition of the proposed assignee or sublessee, the effective date of the assignment or sublease, and all the material terms and conditions of the proposed assignment, and with reference solely to a sublease: a detailed description of the space proposed to be sublet, together with any rights of the proposed sublessee to use Tenant’s improvements and/or ancillary services with the Premises.
14.4 Wave’s Consent. Wave shall have thirty (30) days after Tenant’s notice of assignment and/or sublease is received with the financial information reasonably requested by Wave to advise Tenant of Wave’s (i) consent to such proposed assignment or sublease, or (ii) withholding of consent to such proposed assignment or sublease. If Wave provides its consent within the time period specified, Tenant shall be free to complete the assignment and/or sublet such space to the party contained in Tenant’s notice, subject to the following conditions:
(a) The assignment and/or sublease shall be on the same terms as were set forth in the notice given to Wave;
(b) The assignment and/or sublease shall be documented in a written format that is reasonably acceptable to Wave, which form shall specifically include the assignee’s and/or sublessee’s acknowledgement and acceptance of the obligation contained in this Lease, in so far as applicable; (c) The assignment and/or sublease shall not be valid, nor shall the assignee or sublessee take possession of the Premises, or subleased portion thereof, until an executed duplicate original of such sublease and/or assignment has been delivered to Wave;
(d) The assignee and/or sublessee shall have no further right to assign this Lease and/or sublease the Premises; and
(e) In the event of any Transfer by Tenant Wave shall receive as Additional Rent hereunder (and without affecting or reducing any other obligation of Tenant under this Lease) fifty percent (50%) of Tenant’s “Net Rental Profit” derived from such Transfer. If Tenant shall elect to Transfer, Tenant shall use reasonable and good faith efforts to secure consideration from any such Transferee which would be generally equivalent to then-current market rent, but in no event shall Tenant’s monetary obligations to Wave, as set forth in this Lease, be reduced. In the event of a Transfer which is a sublease, “Net Rental Profit” shall mean all rent, Additional Rent, or other consideration actually received by Tenant during any month during the term of such sublease from such subtenant and/or actually paid by such subtenant on behalf of Tenant in connection with the subletting in excess of the rent, Additional Rent, and other sums payable by Tenant under this Lease in such month during the term of the sublease on a per square foot basis if less than all of the Premises is subleased. In the event of a Transfer other than a sublease, “Net Rental Profit” shall mean key money, bonus money, or other consideration paid by the Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant to the Transferee for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to the Transferee in connection with such Transfer. If part of the Net Rental Profit shall be payable by the Transferee other than in cash, then Wave’s share of such non-cash consideration shall be in such form as is reasonably satisfactory to Wave.
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Tenant shall deliver to Wave a statement within thirty (30) days after the end of each calendar year and/or within thirty (30) days after the expiration or earlier termination of the Term of this Lease in which any Transfer has occurred, specifying for each such Transfer:
(i) the date of its execution and delivery, the number of square feet of the Rentable Area demised thereby, and the Term thereof; and
(ii) a computation in reasonable detail showing the amounts (if any) paid and payable by Tenant to Wave pursuant to this Section 14.4 with respect to such Transfer for the period covered by such statement, and the amounts (if any) paid and payable by Tenant to Wave pursuant to this Section 14.4 with respect to any payments received from a Transferee during such period but which relate to an earlier period.
14.5 Reasonable Grounds for Denial of Assignment and/or Sublease. Wave and Tenant agree that, in addition to such other reasonable grounds as Wave may assert for withholding its consent, it shall be reasonable under this Lease and any applicable law for Wave to withhold its consent to any proposed Transfer, where any one or more of the following conditions exists:
(a) The proposed sublessee or assignee (a “Transferee”) is, in Wave’s reasonable judgment, of a character or reputation which is not consistent with those businesses customarily found in a Class A office building;
(b) The Transferee is engaged in a business or intends to use all or any portion of the Premises for purposes which are not consistent with those generally found in the Building or other Class A office buildings in the vicinity of the Building;
(c) The Transfer will result in more than fifty (50) occupants within the Premises; (d) The Transferee is not a party of reasonable financial worth and/or financial stability in light of the responsibilities involved under the sublease, if a sublessee, or the Lease, if an assignee, on the date consent is requested, or has demonstrated a prior history of credit instability or unworthiness; (e) The Transfer will cause Wave to be in violation of another lease or agreement to which Wave is a party, or would give another occupant of the Stuart Ranch Buildings a right to cancel its lease; (f) The Transferee will retain any right originally granted to Tenant to exercise a right of renewal, right of expansion, right of first offer or other similar right held by Tenant; (g) Either the proposed Transferee, or any person or entity which directly or indirectly, controls, is controlled by, or is under common control with, the proposed Transferee is a tenant in the Building at the time Tenant requests approval of the proposed Transfer, or is engaged in on-going negotiations with Wave to lease space in the Stuart Ranch Buildings at the time Tenant requests approval of the proposed Transfer; (h) The Transferee intends to use all or a portion of the Premises for medical procedures or for a primary business which is as a boiler-room type sales or marketing organization; or 65273.00001\43200124.3
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(i) In the case of a sublease, the rental rate for the proposed sublease is less than the rental rate then being obtained by Wave for comparable space in the Building.
If Wave withholds or conditions its consent and Tenant believes that Wave did so contrary to the terms of this Lease, Tenant may, as its sole remedy, prosecute an action for declaratory relief to determine if Wave properly withheld or conditioned its consent, and Tenant hereby waives all other remedies, including without limitation those set forth in California Civil Code Section 1995.310
14.6 Permitted Transfer. Tenant shall have the right to assign or sublease this Lease, in whole or in part, to any department, agency, or instrumentality of Tenant or any other governmental entity, or successor or affiliate, without the prior written consent of the Landlord, but with thirty (30) days prior notice to Landlord (“Permitted Transfer”).
14.7 Tenant’s Continued Obligation. Any consent by Wave to an assignment of this Lease and/or sublease of the Premises shall not release Tenant from any of Tenant’s obligations hereunder or be deemed to be a consent by Wave to any subsequent hypothecation, assignment, subletting, occupation or use by another person, and Tenant shall remain liable to pay the Rent and/or perform all other obligations to be performed by Tenant hereunder. Wave’s acceptance of Rent from any other person shall not be deemed to be a waiver by Wave of any provision of this Lease. Wave’s consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting.
If any assignee or sublessee of Tenant or any successor of Tenant defaults in the performance of any of the provisions of this Lease, whether or not Wave has collected Rent directly from said assignee or sublessee, Wave may proceed directly against Tenant without the necessity of exhausting remedies against such assignee, sublessee, or other successor-in interest.
Provided that in no event shall any further assignment, sublease, amendment, or modification to this Lease serve to either increase Tenant’s liability or expand Tenant’s duties or obligations hereunder, or relieve Tenant of its liability under this Lease, then Wave may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with any assignee, without notifying Tenant or any successor of Tenant, and without obtaining their consent thereto.
14.8 Successors and Assigns. Subject to the provisions contained herein, the covenants and agreements contained in this Lease shall bind and inure to the benefit of Wave and Tenant, their respective successors and assigns, and all persons claiming by, through, or under them.
ARTICLE 15
SURRENDER OF PREMISES, REMOVAL OF TRADE FIXTURES
15.1 Surrender of Premises. No act or thing done by Wave or any agent or employee of Wave during the Term shall be deemed to constitute an acceptance by Wave of a surrender of the Premises unless such intent is specifically acknowledged in a writing signed by Wave. The delivery of keys to the Premises to Wave or any agent or employee of Wave shall not constitute a surrender of the Premises or effect a termination of this Lease. Tenant shall be entitled to the return of such keys at any reasonable time upon request until this Lease shall have been properly terminated.
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15.2 Removal of Tenant Property by Tenant. Upon the expiration of the Term, or upon any earlier termination of this Lease, Tenant shall, subject to the provisions of this Article 15, quit and surrender possession of the Premises to Wave in as good order and condition as when Tenant took possession and as thereafter improved by Wave and/or Tenant, reasonable wear and tear and repairs which are specifically made the responsibility of Wave hereunder excepted. “Reasonable wear and tear” shall not include any damage or deterioration that would have been prevented by good maintenance practice. Upon such expiration or termination, Tenant shall, without expense to Wave, remove or cause to be removed from the Premises all debris and rubbish, and such items of personal property, including furniture, equipment, free standing cabinet work, and other articles of personal property owned by Tenant and all alternations, improvements, and/or fixtures which remain the property of Tenant upon such expiration or termination of the Term under Article 8, Section 8.4, above, and such similar articles of any other persons claiming under Tenant, as Wave may, in its sole and absolute discretion, require to be removed, and Tenant shall repair at its own expense all damage to the Premises, the Building, and the Property resulting from such removal by Tenant. Notwithstanding the foregoing, Wave shall be responsible for the removal of all telephone, internet, television, and similar cabling, lines, and wiring in the Premises and in the Building.
ARTICLE 16
HOLDING OVER
16.1 If Tenant fails to deliver possession of the Premises on the Termination Date, but holds over after the expiration or earlier termination of this Lease without the express prior written consent of Wave, such tenancy shall be construed as a tenancy from month-to-month on the same terms and conditions as are contained herein, except that the Base Rent payable by Tenant during such period of holding over shall automatically increase as of the Termination Date to an amount equal to one hundred fifty percent (150%) of the Base Rent payable by Tenant the calendar month immediately prior to the date when Tenant commences holding over (the “Holdover Rent”).
Such Holdover Rent shall be paid during such period as Tenant retains possession of the Premises. However, Tenant’s payment of such Holdover Rent and Wave’s acceptance thereof, shall not constitute a waiver by Wave of any of Wave’s rights or remedies with respect to such holding over, nor shall it be deemed to be a consent by Wave to Tenant’s continued occupancy or possession of the Premises past the time period covered Tenant’s payment of the Holdover Rent.
ARTICLE 17
ESTOPPEL CERTIFICATES
17.1 Tenant shall, within twenty (20) business days after receipt of Wave’s written request therefor, execute, acknowledge, and deliver to Wave an Estoppel Certificate, which may be conclusively relied upon by any prospective purchaser, mortgagee, or beneficiary under any deed of trust covering the Property or any part thereof. Said Estoppel Certificate shall certify the following:
(a) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect, as modified, and stating the date and nature of each modification); (b) the date, if any, to which rental and other sums payable hereunder have been paid; (c) that no notice has been received by Tenant of any default which has not been cured, except as to defaults specified in the certificate;
(d) that Wave is not in default under this Lease or, if so, specifying such default; and 65273.00001\43200124.3
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(e) such other factual matters related to this Lease as may be commercially reasonably requested by Wave.
Tenant’s failure to deliver the Estoppel Certificate within the time period specified above shall constitute a material default under the Lease, and Wave shall have the option, but not the obligation, to enforce the remedies contained in Article 19.
ARTICLE 18
SUBORDINATION; ATTORNMENT
18.1 Subordination. This Lease, the Term and estate hereby granted, are and shall be subject and subordinate to the lien of each mortgage which may now or at any time hereafter affect Wave’s interest in the real property, the Property, the Building, the Stuart Ranch Buildings, parking facilities, common areas or portions thereof and/or the land thereunder (an “underlying mortgage”), regardless of the interest rate, the terms of repayment, the use of the proceeds or any other provision of any such mortgage. Tenant shall from time to time execute and deliver such instruments as Wave or the holder of any such mortgage may reasonably request containing commercially reasonable terms to confirm the subordination provided in this Section 18.1. However, if the holder or holders of any such mortgage shall require that this Lease be prior and superior thereto, Tenant shall, within twenty (20) business days after written request from Wave, execute, have acknowledged and deliver any and all reasonable documents or instruments, which Wave or the holder of any such mortgage deems necessary or desirable for such purposes.
18.2 Attornment. Tenant confirms that if by reason of a default under an underlying mortgage the interest of Wave in the Premises is terminated, provided Tenant is ·granted in writing continued quiet enjoyment of the Premises pursuant to the terms and provisions of this Lease, and provided such terms and conditions do not increase the Base Rent, materially increase Tenant’s obligations, or materially and adversely affect Tenant’s rights under this Lease, Tenant shall attorn to the holder of the reversionary interest in the Premises and shall recognize such holder as Tenant’s landlord under this Lease, but in no event shall such holder be bound by any payment of Rent paid more than one month in advance of the date due under this Lease. Tenant shall, within twenty (20) days after written request therefor, execute and deliver, at any time and from time to time, upon the request of Wave or of the holder of an underlying mortgage any instrument which may be necessary or appropriate to evidence such attornment. If Tenant fails to so execute and deliver any such instrument, then Tenant hereby irrevocably appoints Wave or such holder as its attorney-in-fact to execute and deliver for and on behalf of Tenant any such instrument.
18.3 Modification of Lease; Notice of Default. If any current or prospective mortgagee or ground lessor for the Building requires a modification or modifications of this Lease, which modification or modifications will not cause an increased cost or expense to Tenant or in any other way materially and adversely change the rights and obligations of Tenant hereunder, then in such event, Tenant agrees that this Lease may be so modified. Tenant agrees to execute and deliver to Wave within twenty (20) business days following the request therefor whatever documents are required to effectuate said modification. Should Wave or any such current or prospective mortgagee or ground lessor require execution of a short form of Lease for recording, containing, among other customary provisions, the names of the parties, a description of the Premises and the Term, Tenant agrees to execute and deliver to Wave such short form of Lease within twenty (20) business days following the request therefor. Further, Tenant shall give written notice of any default by Wave under this Lease to any mortgagee and ground lessor of the Property for which Wave has delivered to Tenant a written request for concurrent notice, and Tenant shall afford such mortgagee and ground lessor a reasonable opportunity to cure such Landlord default prior to exercising any remedy under this Lease other than self-help. 65273.00001\43200124.3
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ARTICLE 19
DEFAULTS; REMEDIES
19.1 Tenant Defaults. The occurrence of any of the following shall constitute an Event of Default of this Lease by Tenant (or a “Tenant Default”).
19.1.1 Any failure by Tenant to pay any Rent or any other charge required to be paid under this Lease, or any part thereof, and such Rent remains due and unpaid for ten (10) days after delivery of written notice of such default by Wave to Tenant; or
19.1.2 Any failure by Tenant to observe or perform any other provision, covenant or condition of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Wave to Tenant (unless such default is not reasonably capable of being cured within such thirty (30) day period and Tenant is diligently prosecuting such cure to completion); or
19.1.3 Abandonment or vacation of the Premises by Tenant or
19.1.4 To the extent permitted by law, a general assignment by Tenant or any guarantor of the Lease for the benefit of creditors, or the filing by or against Tenant or any guarantor of any proceeding under an insolvency or bankruptcy law, unless in the case of a proceeding filed against Tenant or any guarantor the same is dismissed within sixty (60) days, or the appointment of a trustee or receiver to take possession of all or substantially all of the assets of Tenant or any guarantor, unless possession is restored to Tenant orsuch guarantor within thirty (30) days, or execution or other judicially authorized seizure of all or substantially all of Tenant’s assets located upon the Premises or of Tenant’s interest in this Lease, unless such seizure is discharged within thirty (30) days; or
19.1.5 The hypothecation or assignment of this Lease or subletting of the Premises, or attempts at such actions by Tenant in violation of Article 14 hereof.
19.2 Remedies Upon Default. Upon the occurrence of any Event of Default by Tenant as set forth in Section 19.1 of this Lease, and provided Tenant has not cured such default within the applicable grace period set forth in Section 19.1, above, Wave shall have, in addition to any other remedies available to Wave at law or in equity, the option to pursue any one or more of the following remedies in this Section 19.2, each and all of which shall be cumulative and nonexclusive; provided, however, notwithstanding anything to the contrary in this Lease, (i) whether or not this Lease is terminated by Landlord or by operation of law, Tenant has no obligation to pay Base Rent or Additional Rent until the date it would otherwise have become due in the absence of any Event of Default; and (ii) Landlord agrees Landlord shall make commercially reasonable efforts to mitigate any damages Landlord incurs as a result of Tenant’s Event of Default.
19.2.1 Terminate this Lease, in which event Tenant shall have thirty (30) days to surrender the Premises to Wave, and if Tenant fails to do so, Wave may, without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and take possession of the Premises in Landlord; to expel or remove Tenant and any other person who may be occupying the Premises or any part thereof; and to recover from Tenant the following:
(i) The worth at the time of award of any unpaid rent which has been earned at the time of such termination; plus
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(ii) The worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iv) Any other amount necessary to compensate Wave for all the detriment caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom; and
(v) At Wave’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law.
19.2.2 The “worth at the time of award” as used in Section 19.2.1 is computed:
(a) in paragraphs (i) and (ii) above, by allowing interest at the rate of ten percent (10%) per annum (but in no event in excess of the maximum rate permitted by law) (such rate, the “Default Rate”); and
(b) in paragraph (iii) above, by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). (c) For purposes of computing unpaid rental which would have accrued and become payable under this Lease, unpaid rental shall consist of the sum of:
(i) The total Base Rent for the balance of the Term, plus (ii) A computation of Tenant’s Share of Additional Rent due under the Lease for the balance of the Term, calculated using Tenant’s Monthly CAM Charges as provided in Section 3.2(b) of this Lease (annual increases by 3% for each year of the Lease Term), and Tenant’s Share of any then known Additional Rent payable by tenants at the Building in excess of the Base Year.
19.2.3 Wave shall have the remedy described in California Civil Code Section 1951.4 (which provides that lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has the right to sublet or assign, subject only to reasonable limitations). Accordingly, if Wave does not elect to terminate this Lease on account of any default by Tenant, Wave may, from time to time, without terminating this Lease, enforce all of its rights and remedies under this Lease, including the right to recover all Rent as it becomes due.
19.2.4 The remedies of Wave provided for in this Lease are cumulative and are not intended to be exclusive of any other remedies to which Wave may be lawfully entitled. The exercise by Wave of any remedy to which it is entitled shall not preclude or hinder the exercise of any other such remedy.
19.3 Notices. Any notice required or permitted by this Article 19 shall be in lieu of, and not in addition to, any notice required under any California statute providing for notice and any cure period. Wave may serve a statutory notice to quit, a statutory notice to pay rent or quit, a statutory notice to cure covenant or quit, or a statutory notice 65273.00001\43200124.3
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of default, as the case may be, to effect the giving of any notice required by this Article 19. Notices shall be made to in accordance with Section 29.24.
19.4 Sublessees of Tenant. Whether or not Wave elects to terminate this Lease on account of any default by Tenant as set forth in this Article 19, Wave shall have the right to terminate any and all subleases, licenses, concessions or other consensual arrangements for possession entered into by Tenant and affecting the Premises or may, in Wave’s sole discretion, succeed to Tenant’s interest in such subleases, licenses, concessions, or arrangements. In the event of Wave’s election to succeed to Tenant’s interest in any such subleases, licenses, concessions or arrangements, Tenant shall, as of the date of notice by Wave of such election, have no further right to or interest in the rent or other consideration receivable thereunder.
19.5 Wave Default. If the Premises are untenantable or unusable by Tenant, and such condition relates to (i) the nonfunctioning of the heating, ventilation, and air conditioning system in the Premises, (ii) the electricity available to the Premises, or (iii) a total failure to provide access to all the Premises; or such failure to perform by Wave shall be a “Wave Default”. Tenant shall give Wave notice (the “Initial Notice”), specifying such Wave Default.
If Wave has not cured such Wave Default within five (5) business days after the receipt of the Initial Notice, Tenant shall deliver an additional notice to Wave (the “Additional Notice”), specifying such Wave Default and intention to abate the payment of rent under this Lease. If Wave does not cure such Wave Default within three (3) business days of receipt of the Additional Notice (the “Abatement Date”), Tenant shall have the option in Tenant’s discretion, to (a) remedy such Wave Default and incur expenses for the account of Wave; or (b) abate the payment of rent under this Lease for the Premises rendered untenantable, for the period beginning on the date of nonuse of the Premises by Tenant to the earlier of the date Wave cures such Wave Default or the date Tenant recommences the use of the Premises. All such sums expended or obligations incurred by Tenant in connection therewith shall be paid by Landlord to Tenant upon demand. In the event of an emergency, Tenant shall have the right to remedy any Wave Default without prior notice, so long as Tenant delivers written notice to Wave within a reasonable period of time along with related invoices and request for payment. If Landlord fails to promptly reimburse and pay Tenant for same, Tenant may deduct such amount from subsequent installments of Rent as they become due and payable by Tenant until Tenant is reimbursed in full.
Except as provided in this Section 19.5, nothing contained herein shall be interpreted to mean that Tenant is excused from paying Rent due hereunder.
ARTICLE 20
ATTORNEYS’ FEES
If either party commences litigation against the other for the specific performance of this Lease, for damages for the breach hereof, or otherwise for enforcement of any remedy hereunder, in the event of any such commencement of litigation, the prevailing party shall be entitled to recover from the other party such costs, including expert witness fees and reasonable attorneys’ fees, as may have been incurred.
ARTICLE 21
SECURITY DEPOSIT
Concurrent with Tenant’s execution of this Lease, Tenant shall deposit with Wave a security deposit (the “Security Deposit”) in the amount set forth in Section 8 of the Summary. The Security Deposit shall be held by Wave as security for the faithful performance by Tenant of all the terms, covenants, and conditions of this Lease to be kept and performed by Tenant during the Term. If Tenant defaults with respect to any provision of this Lease, Wave may apply all or any part of the Security Deposit for the payment of any Rent or other sum unpaid and owing in 65273.00001\43200124.3
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such Tenant Default, the repair of such damage to the Premises or the payment of any other amount which Wave may spend or become obligated to spend by reason of Tenant’s Default, or to compensate Wave for any other loss or damage which Wave may suffer by reason of Tenant’s Default,to the full extent permitted by law. If any portion of the Security Deposit is so applied, Tenant shall, within ten (10) business days after written demand therefor, deposit cash with Wave in an amount sufficient to restore the Security Deposit to its original amount. If Tenant is not otherwise in default, the Security Deposit or any balance thereof shall be returned to Tenant within thirty (30) days after the expiration of the Term, with a written explanation for the portion of the Security Deposit withheld by Wave, if any. Tenant shall not be entitled to any interest on the Security Deposit. Tenant hereby waives the provisions of Section 1950.7 of the California Civil Code, or any successor statute, and agrees that Wave may hold and apply the Security Deposit to future damages. In addition, Tenant has agreed to and shall pay to Wave the sum of $2,500 for the fee associated with relocating the current tenant in Suite 235 at the property so that Suite 240 is one contiguous space.
ARTICLE 22
SUBSTITUTION OF OTHER PREMISES
Wave shall have the right at any time, except during the last six (6) months of the Term, and after giving Tenant a minimum of sixty (60) days prior written notice, to:
(a) Provide and furnish Tenant with space elsewhere in the Stuart Ranch Buildings of approximately the same size as the Premises (the “Substitute Premises”); and (b) Relocate Tenant to such Substitute Premises.
Wave shall pay all reasonable costs and expenses incurred as a result of such relocation. If Wave moves Tenant to the Substitute Premises, each and every term, covenant, and condition of this Lease shall remain in full force and effect and be deemed applicable to the Substitute Premises, as though Wave and Tenant had entered into an express written amendment of this Lease with respect thereto, except that if the approximate rentable square footage of the Substitute Premises is less than that of the Premises, the Base Rent and Tenant’s Share of Operating Expenses increases shall be appropriately reduced.
If Tenant refuses to permit Wave to relocate Tenant as specified above, Wave shall have the right to terminate this Lease effective ninety (90) days from the date Wave provided Tenant with the original notification of intent to relocate.
ARTICLE 23
SIGNS
Tenant shall have the right, at Tenant’s sole cost, to include its name on the exterior directory on the Building only. All signage shall be subject to the codes, ordinances, and regulations of the City of Malibu, and shall also be subject to Wave’s approval, which shall not be unreasonably withheld, conditioned, and delayed.
ARTICLE 24
COMPLIANCE WITH LAW
24.1 Tenant’s Covenants. Tenant shall not do anything or suffer anything to be done in or about the Premises which will in any way conflict with any applicable law, statute, ordinance or other governmental rule, regulation or requirement now in force or which may hereafter be enacted or promulgated. At its sole cost and expense, Tenant 65273.00001\43200124.3
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shall promptly comply with all such governmental measures, other than the making of structural changes or changes to the Building’s life safety systems. Should any standard or regulation now or hereafter be imposed on Wave or Tenant in connection with Tenant’s use of the Premises by a state, federal, or local governmental body charged with the establishment, regulation, and enforcement of occupational, health, or safety standards or employers, employees, landlords, or tenants, then Tenant agrees, at its sole cost and expense, to comply promptly with such standards or regulations which are applicable to Tenant’s use as a lessee of the Premises.
24.2 Hazardous Materials; Duty to Inform Wave. Tenant specifically agrees that, except for such limited quantities of office materials and supplies as are customarily used in Tenant’s normal business operations (all of which are hereby expressly excluded from the definition of Hazardous Materials for purposes of this Article 24), Tenant shall not engage or permit at any time, any operations or activities upon, or any use or occupancy of the Premises, or any portion thereof, for the purpose of or in any way involving the handling, manufacturing, treatment, storage, use, transportation, spillage, leakage, dumping, discharge, or disposal (whether legal or illegal, accidental or intentional) of any hazardous substances, materials, or wastes, or any wastes regulated under any local, state, or federal law (“Hazardous Material”). If Tenant knows, or has reasonable cause to believe, that a Hazardous Material, or a condition involving or resulting from same, has come to be located in, on, under, or about the Premises, other than as previously consented to in writing by Wave, Tenant shall promptly give written notice of such fact to Wave. Tenant also shall promptly give Wave a copy of any statement, report, notice, registration, application, permit, business plan, license, claim, action, or proceeding given to Tenant, or received by Tenant from, any governmental authority or private party, or persons entering or occupying the Premises, concerning the presence, spill, release, discharge of, or exposure to, any Hazardous Material or contamination in, on, or about the Property or the Premises, including but not limited to all such documents as may be involved in any Hazardous Material or contamination involving the Premises. Tenant shall not be required to remediate or pay for the removal of any Hazardous Materials to the extent such Hazardous Materials (i) were present in or under the Premises prior to the Possession Date; (ii) migrate to or under the Premises during the Term through no action or fault of Tenant or (iii) caused by unrelated third parties not hired or controlled by Tenant.
24.3 Special Indemnification. Each Party shall indemnify, protect, defend, and hold the other and Wave’s lenders if any, and the Property and the Premises, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, costs, claims, liens, expenses, penalties, permits, and attorneys’ and consultant’s fees arising out of or involving any Hazardous Material or storage tank brought onto the Property or the Premises by or for such Party or under such Party’s control. The indemnifying Party’s obligations shall include, but not be limited to, the effects of any contamination or injury to person, property, or the environment created or suffered by the indemnifying Party, and the cost of investigation (including consultant’s and attorney’s fees and testing), removal, remediation, restoration and/or abatement thereof, or of any contamination therein involved, and shall survive the expiration or earlier termination of this Lease. No termination, cancellation, or release agreement entered into by Wave and Tenant shall release the indemnifying Party from its obligations under this Lease with respect to Hazardous Material or storage tanks, unless specifically so agreed by the non-indemnifying Party in writing at the time of such agreement.
ARTICLE 25
LATE CHARGES.
Tenant acknowledges that late payment by Tenant to Wave of Base Rent or Additional Rent will cause Wave to incur costs not contemplated by this Lease, the exact amount of which are extremely difficult and impracticable to fix in advance. Such costs include, without limitation, processing and accounting charges and late charges that may be imposed on Wave by the terms of any encumbrance and note secured by any encumbrance covering the Premises.
Therefore, if any installment of Rent or any other sum due from Tenant shall not be received by Wave or Wave’s 65273.00001\43200124.3
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designee within five (5) business days after said amount is due, then Tenant shall pay to Wave a late charge equal to five percent (5%) of the overdue amount(such amount, a “Late Charge”). In addition to the Late Charge described above, any Rent or other amounts owing hereunder which are not paid within five (5) business days after the date they are due shall bear interest from the date when due until paid at a rate per annum equal to the lesser of (i) ten percent (10%) per annum; or (ii) the maximum rate allowed by law.
ARTICLE 26
WAVE’S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1 Wave’s Cure. All covenants and agreements to be kept or performed by Tenant under this Lease shall be performed by Tenant at Tenant’s sole cost and expense and with any reduction of Rent. If Tenant shall fail to perform any of its obligations under this Lease, within a reasonable time after such performance is required by the terms of this Lease, Wave may, but shall not be obligated to, after reasonable prior notice to Tenant in accordance with this Lease (except in the case of an emergency), make any such payment or perform any such act on Tenant’s part without waiving its rights based upon any default of Tenant and without releasing Tenant from any obligations hereunder.
26.2 Tenant’s Reimbursement. Except as may be specifically provided to the contrary in this Lease, Tenant shall pay to Wave, within fifteen (15) business days after delivery by Wave to Tenant of statements therefore: (i) sums equal to expenditures reasonably made and obligations incurred by Wave in connection with the remedying by Wave of Tenant’s Defaults pursuant to the provisions of Section 26.1; (ii) sums equal to all losses, costs, liabilities, damages and reasonable expenses referred to in Article 10 of this Lease; and (iii) sums equal to all expenditures made and obligations incurred by Wave in collecting or attempting to collect the Rent or in enforcing or attempting to enforce any rights of Wave under this Lease or pursuant to law, including, without limitation, all reasonable third party attorneys’ fees and other amounts so expended. Tenant’s obligations under this Section 26.2 shall survive the expiration or sooner termination of the Term.
ARTICLE 27
ENTRY BY WAVE
Subject to Section 31.1(c)(iii), Wave reserves the right at all reasonable times and upon reasonable notice (twenty four (24) hours conclusively deemed to be reasonable) and an opportunity for Tenant to have a representative present, to Tenant (except in the case of an emergency) to enter the Premises to (i) inspect them; (ii) show the Premises to prospective tenants; (iii) post notices of non-responsibility; or (iv) alter, improve or repair the Premises or the Building in which the Premises are located if necessary to comply with current building codes or other applicable laws, or for structural alterations, repairs or improvements to the Building in which the Premises are located. Notwithstanding anything to the contrary contained in this Article 27, but subject to Section 31.1(c)(iii), Wave may enter the Premises to (A) perform services required of Wave; (B) take possession due to any Event of Default as defined in Section 19.1 of this Lease, in the manner provided herein; and (C) perform any covenants of Tenant which Tenant fails to perform. For each of the above purposes, Wave shall at all times have a key with which to unlock all the doors in the Premises, excluding Tenant’s vaults, safes and special “Secure Areas” which are designated in advance by Tenant. In an emergency, Wave shall have the right to use any reasonable means that Wave may deem proper to open the doors in and to the Premises. Any entry into the Premises by Wave in accordance with this Article 27 shall not be deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an actual or constructive eviction of Tenant from any portion of the Premises. 65273.00001\43200124.3
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ARTICLE 28
PARKING
28.1 Tenant’s Parking Rights. Tenant is hereby allocated by Wave, commencing on the Rent Commencement Date, the amount of unreserved parking spaces set forth in Section 9 of the Summary, on a monthly basis throughout the Term. Except as otherwise permitted by Wave under this Article 28, in no event shall Tenant be entitled to more unreserved parking spaces. Wave may establish from time to time a reasonable fee for the unreserved parking spaces allotted to Tenant under Section 9 of the Summary. If additional parking is available, which determination shall be in the sole discretion and absolute discretion of Wave, Tenant shall be permitted to purchase one or more unreserved parking spaces on a first-come, first-served basis, at a price determined by Wave in its sole and absolute discretion.
In the event Tenant, or its employees, agents, representatives or invitees, repeatedly use parking spaces in a number exceeding the number of parking spaces allotted to Tenant in Section 9 of the Summary, after written notice thereof and the opportunity to cure, without the advance permission of Wave as set forth in this Section 28.1, in addition to any other remedies that Wave may have under this Lease and California law, Tenant shall pay to Wave the price for all such documented excess parking at a price determined by Wave in its commercially reasonable discretion. Wave specifically reserves the right to change the size, configuration, design, layout and all other aspects of the Property parking facility at any time and Tenant acknowledges and agrees that Wave may, without incurring any liability to Tenant and without any abatement of Rent under this Lease, from time to time, close off or restrict access to the Property parking facility for purposes of permitting or facilitating any such construction, alteration, improvements, or rental. Tenant’s continued use of said parking shall be contingent upon Tenant’s continued compliance with the reasonable and non-discriminatory rules and regulations adopted by Wave, which rules and regulations may change at any time or from time to time during the Term hereof in Wave’s sole discretion.
28.2 Parking Management. Tenant shall fully comply with all present or future programs intended to manage parking, transportation or traffic in and around the Stuart Ranch Buildings, when the same have been determined to be necessary in Wave’s sole and absolute discretion, or when mandated by an outside governmental authority having jurisdiction therefor. Tenant shall pay the reasonable costs for any such management programs instituted by Wave pro rata based upon Tenant’s Share of parking spaces allocated to Tenant.
In connection therewith, Tenant shall be responsible for the transportation planning and management for all of Tenant’s employees while located at the Premises, by working directly with Wave, any governmental transportation management organization or any other transportation-related committees or entities reasonably designated by Wave. Such programs may include, without limitation:
(a) instituting restrictions on the number of peak-hour vehicle trips generated by Tenant; (b) instituting requirements for increased vehicle occupancy; (c) implementing an in-house ride-sharing program and/or appointing an employee transportation coordinator;
(d) working with employees of any Building (or area-wide) ridesharing program manager; (e) instituting employer-sponsored incentives (financial or in-kind) to encourage employees to ridesharing;
(f) utilizing flexible work shifts for employees; and
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(g) instituting a gate or security key-card enforced system for parking management.
28.3 Wave Not Responsible for Damages. Except in connection with Wave’s gross negligence or willful misconduct, Wave shall not be responsible, and Tenant hereby assumes all responsibility for any damage, theft, or loss occurring in the parking facilities of the Property at any time suffered by Tenant and its employees, agents, guests and invitees.
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 Entire Agreement. This Lease, including the Exhibits and guaranty of Lease, if any, attachments annexed hereto, contains all of the agreements and understandings relating to the leasing of the Premises and the obligations of Wave and Tenant in connection therewith, and neither Party and no agent or representative thereof has made or is making, and neither Party in executing and delivering this Lease is relying upon, any warranties or representations, except to the extent set forth in this Lease. All understandings and agreements heretofore had between Wave and Tenant relating to the leasing of the Premises are merged in this Lease, which alone fully and completely expresses their agreement. The Exhibits annexed to this Lease are hereby incorporated herein and made a part hereof.
29.2 No Waiver or Modification. No waiver or modification by either Wave or Tenant of any covenant or agreement contained in this Lease shall be deemed to have been made unless the same is in writing executed by the Party whose rights are being waived or modified. The receipt and retention by Wave, and the payment by Tenant, of Base Rent or Additional Rent with knowledge of the breach of any covenant or agreement contained in this Lease shall not be deemed a waiver of such breach by either Wave or Tenant.
29.3 Time of the Essence. Time is of the essence of this Lease and of all provisions hereof.
29.4 Force Majeure. For the purposes of this Lease, “Force Majeure” shall be defined as any or all prevention, delays or stoppages and/or the inability to obtain services, labor, materials or reasonable substitutes therefor, when such prevention, delay, stoppage or failure is due to strikes, lockouts, labor disputes, acts of God, governmental orders or actions, states of emergency, civil commotion, fire or other casualty, and/or other causes beyond the reasonable control of the Party obligated to perform, except that Force Majeure may not be raised as a defense for Tenant’s nonperformance of any obligations imposed by the Lease with regard to the payment of Base Rent and/or Additional Rent.
Notwithstanding anything to the contrary contained in this Lease, Force Majeure shall excuse the performance of such party for a period equal to any such prevention, delay, stoppage or inability. Therefore, if this Lease specifies a time period for performance of an obligation by either party, that time period shall be extended by the period of any delay in such party’s performance caused by a Force Majeure.
29.5 Broker. Wave and Tenant represent to one another that each has dealt with no broker in connection with this Lease other than the brokers set forth in Section 11 of the Summary. Wave and Tenant shall hold one another harmless from and against any and all liability, loss, damage, expense, claim, action, demand, suit, or obligation arising out of or relating to a breach by the indemnifying party of such representation. Wave agrees to pay all commissions due to the brokers listed above, if any, created by Tenant’s execution of this Lease, pursuant to a separate agreement with the brokers.
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29.6 Disclosures Regarding The Nature of a Real Estate Agency Relationship.
29.6.1 When entering into a discussion with a real estate agent regarding a real estate transaction, a Landlord or Tenant should from the outset understand what type of agency relationship or representation it has with the agent or agents in the transaction. Wave and Tenant acknowledge being advised by the Brokers in this transaction, as follows:
29.6.2 Landlord’s Agent. A landlord’s agent under a listing agreement with Wave acts as the agent for Wave only.
29.6.3 Tenant's Agent. An agent can agree to act as agent for the Tenant only.
29.6.4 Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Effective Date and that the liability (including court costs and attorneys' fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitation on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker.
29.6.5 Wave and Tenant agree to request their Brokers treat as "Confidential" any communication or information pertaining to the terms of this Lease.
29.7 Governing Law. This Lease shall be governed by and construed in accordance with the laws of the State of California.
29.8 Submission of Lease. Whether or not rental deposits have been received by Wave from Tenant, and whether or not Wave has delivered to Tenant an unexecuted draft version of this Lease for Tenant’s review and/or signature, no contractual or other rights shall exist between Wave and Tenant with respect to the Premises, nor shall this Lease be valid and/or in effect until this Lease has been fully executed by both Parties, and a duplicate original of said fully-executed Lease has been delivered to both Wave and Tenant.
The submission of this Lease to Tenant shall be for examination purposes only, and does not and shall not constitute a reservation of or an option for Tenant to lease, or otherwise create any interest by Tenant in the Premises or any other offices or space situated in the Building. Execution of this Lease by Tenant and its return to Wave shall not be binding upon Wave, notwithstanding any time interval, until Wave has in fact executed and delivered a fullyexecuted duplicate original of this Lease to Tenant. Wave and Tenant agree and hereby authorize transmission of all or portions of documents, including signature lines thereon, by facsimile machines and electronic mail, and further authorize the other party to rely conclusively upon such facsimile transmissions or pdf copies as if the original had been received.
29.9 Captions. The captions in this Lease are for convenience only and shall not in any way limit or be deemed to construe or interpret the terms and provisions hereof.
29.10 Singular and Plural, Etc. The words “Landlord” and “Tenant”, as used herein shall be construed to include all persons comprising such Party, jointly and severally. Words used in the masculine gender include the feminine and neuter, and terms used in plural include the singular. 65273.00001\43200124.3
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29.11 Independent Covenants.
Except where the covenants contained in any Article of this Lease are clearly affected by or contingent upon fulfillment by either Party of another Article or Section of this Lease, this Lease shall be construed as though the covenants herein between Wave and Tenant are independent and not dependent and Tenant hereby expressly waives the benefit of any statute to the contrary and agrees that if Wave fails to perform its obligations set forth herein, Tenant shall not be entitled to make any repairs or perform any actions hereunder at Wave’s expense or to any set-off of the Rent or other amounts owing hereunder against Wave; provided, however, that the foregoing shall in no way impair the right of Tenant to commence a separate action against Wave for the violation by Wave of the provisions hereof so long as notice is first given to Wave and any holder of a mortgage or deed of trust covering the Building, the Property or any portion thereof, of whose address Tenant has theretofore been notified, and an opportunity is granted to Wave and such holder to correct such violations as provided above.
29.12 Severability. If any covenant or agreement of this Lease or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, then and in each such event the remainder of this Lease or the application of such covenant or agreement to any other person or any other circumstance shall not be thereby affected, and each covenant and agreement hereof shall remain valid and enforceable to the fullest extent permitted by law.
29.13 Warranty of Authority. If Wave or Tenant signs as a corporation, a limited liability company, or a partnership, each of the persons executing this Lease on behalf of Wave or Tenant hereby covenant and warrant that each is a duly authorized and existing entity, that each has and is qualified to do business in California, that the persons signing on behalf of Wave or Tenant have full right and authority to enter into this Lease, and that each and every person signing on behalf of either Wave or Tenant is authorized to do so.
29.14 No Representations or Warranties. Neither Wave nor Wave’s agents or attorneys have made any representations or warranties with respect to the Premises, the Building, the Property or this Lease, except as expressly set forth herein, and no rights, easements or licenses are or shall be acquired by Tenant by implication or otherwise.
29.15 No Joint Venture or Partnership. This Lease shall not be deemed or construed to create or establish any relationship of partnership or joint venture or similar relationship or arrangement between Wave and Tenant hereunder.
29.16 Tenant’s Obligations At Its Sole Expense. Notwithstanding the fact that certain references in this Lease to acts required to be performed by Tenant hereunder, or to breaches or defaults of this Lease by Tenant, omit to state that such acts shall be performed at Tenant’s sole expense, or omit to state that such breaches or defaults by Tenant are material, unless the context clearly implies to the contrary each and every act to be performed or obligation to be fulfilled by Tenant pursuant to this Lease shall be performed or fulfilled at Tenant’s sole expense, and all breaches or defaults by Tenant hereunder shall be deemed material.
29.17 OFAC Compliance. Tenant hereby represents, warrants and covenants, that it is either regulated by the SEC, FINRA or the Federal Reserve (a “Regulated Entity”), or is a wholly-owned subsidiary or wholly owned affiliate of a Regulated Entity. The Parties each warrant that neither it nor any person or entity (a) that directly or indirectly controls it, or (b) that has a direct or indirect ownership interest in it of twenty-five percent (25%) or more, or (c) for which it is acting as an agent in this transaction, either appears on any list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or has 65273.00001\43200124.3
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been named by any Executive Order of the United States Treasury Department as a person with whom transactions are prohibited by law.
29.18 Civil Code Section 1938 Disclosure. Pursuant to Section 1938 of the California Civil Code, Wave hereby advises Tenant that as of the date of this Lease neither the Premises, the Building nor the Real Property have undergone inspection by a Certified Access Specialist. Further, pursuant to Section 1938 of the California Civil Code, Wave notifies Tenant of the following:
“A Certified Access Specialist (CASp) can inspect the Premises and determine whether the Premises comply with all of the applicable construction-related accessibility standards under state law. Although California state law does not require a CASp inspection of the Premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the Premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of any such CASp inspection, the payment of the costs and fees for the CASp inspection and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Premises.” Therefore, Wave and Tenant agree that (i)Tenant shall at its option and at its sole cost, cause a CASp to inspect the Premises and determine whether the Premises complies with all of the applicable construction-related accessibility standards under California law as provided in Section 1.4, and (ii) Tenant shall be solely responsible for the cost of any repairs necessary to correct violations of construction-related accessibility standards within the Premises or in the Building in existence prior to the Possession Date as it relates to Tenant’s Permitted Use.
29.19 Waiver of Trial by Jury. To the extent allowed by law, Wave and Tenant hereby consent to trial without a jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other or their successor-in-interest in respect to any matters arising out of or relating to this Lease.
29.20 No Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of Wave terminate all or any existing subleases or subtenancies, or may, at the option of Wave, operate as an assignment to it of any or all such subleases or subtenancies.
29.21 Prohibition Against Recording. Neither this Lease, nor any memorandum, affidavit or other writing with respect thereto, shall be recorded by Tenant or by anyone acting through, under or on behalf of Tenant without the prior written consent of Wave. Any recording thereof in violation of this provision shall make this Lease null and void at Wave’s election.
29.22 Counterparts. This Lease may be executed in counterparts, each of which shall be deemed an original, all of which, when taken together shall constitute one instrument. The parties agree that the delivery of a counterpart bearing a pdf or other electronic signature of any party shall be binding on such party as fully as a counterpart bearing an original signature.
29.23 Confidentiality. Wave and Tenant agree that the covenants and provisions of this Lease shall not be divulged to anyone not directly involved in the management, administration, ownership, lending against, or subleasing of the Premises, which permitted disclosure shall include, but not be limited to, the board members, legal counsel and/or accountants of either Wave or Tenant. 65273.00001\43200124.3
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29.24 Notices. Any notice, demand, or request required or permitted to be given pursuant to this Lease must be in writing and given by: (a) personal delivery, (b) United States Postal Service registered or certified mail, with postage prepaid and return receipt required, or (c) a reputable overnight courier. Notices shall be deemed to have been given on the first to occur of the following: (i) the third business day after deposit with the United States Postal Service, if sent by registered or certified mail, return receipt requested; (2) the date hand delivered, if by personal delivery; and (3) the next business day after pick up by reputable overnight courier.
Notices shall be delivered to the addresses of Landlord and Tenant in Sections 2 and 3 in the Summary, or at such other place as Landlord or Tenant may from time to time designate in written notice to the other.
29.25 Public Records Act. Landlord acknowledges Tenant is subject to the California Public Records Act (Gov. Code, Section 6250, et. seq.). If Tenant receives a request for records related to information obtained from Landlord pursuant to this Lease, Tenant, to the extent permissible under applicable law, agrees to provide Landlord with written notice of such request within five (5) business days of its receipt of the records request. Landlord shall then have the time period specified in Tenant’s notice to determine whether it considers any of the information confidential proprietary information and whether it will take legal action to prevent disclosure of the requested information. Landlord acknowledges a request for records under the California Public Records Act will require prompt response from Landlord given Tenant’s obligation to respond to such request within ten (10) days of its receipt of such request for records. Absent a timely response, Tenant shall release all of the requested records.
Tenant shall have no monetary liability whatsoever to Landlord for release of information pursuant to a request under the California Public Records Act or any subpoena; nor shall Tenant be obligated to defend against any challenge related to a California Public Records Act request or a subpoena for records that Landlord asserts are confidential. Landlord further agrees to indemnify, hold Tenant harmless from and against any and all claims, causes of action, damages, and judgments, as well as attorney fees and costs, resulting from a challenge related to a records request or subpoena for records that Landlord asserts are confidential. Landlord’s indemnity obligations under this Section shall survive the expiration or earlier termination of this Lease.
29.26 Effectiveness/City Council Approval. This Lease shall become effective upon approval or ratification by Tenant’s City Council, or upon execution by the City Manager as permitted by an emergency proclamation, the Malibu Municipal Code or State Law.
ARTICLE 30
OPTION TO EXTEND LEASE TERM
30.1 General. Provided that (i) both at the time of the exercise of the option hereinafter set forth below and at the time of the commencement of the Renewal Term (as defined below) this Lease is in full force and effect, and provided further that Tenant is not then in an ongoing uncured Event of Default hereunder beyond the expiration of any applicable notice and cure period provided for in this Lease; and (ii) Tenant has not subleased any portion of the Premisesin contravention of this Lease; and (iii) Tenant is in occupancy of the Premises for the purpose of conducting its own business, Tenant is hereby granted One (1) option to renew the Lease Term for a period of Three (3) years (the “Renewal Term”, and such option, the “Option to Renew”), such Renewal Term to commence immediately upon the expiration of the then expiring Term. Once Tenant has delivered the Renewal Notice (as defined below) upon Wave, Tenant shall be bound for the entire Renewal Term by the terms and conditions of this Lease, as the same are modified pursuant to this Article 30, or in any separate agreement that reconciles the Option to Renew. Tenant shall exercise its Option to Renew only by delivering irrevocable and unequivocal written notice of such election (the “Renewal Notice”) to Wave not more than six (6) months prior to the expiration of the existing Term. In the event that Wave does not receive the Renewal Notice within such period (time being of the essence with respect thereto), then such Option to Renew (and any subsequent option(s) to renew) shall, upon the expiration of such time period, 65273.00001\43200124.3
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become null and void and be of no further force or effect and Tenant shall, at the request of Wave, execute an instrument in form and substance acceptable to Wave confirming such facts.
30.2 Terms. The Term and Renewal Term shall be upon the same terms and conditions of this Lease, except for the following:
30.2.1 Tenant shall have no further option to renew this Lease beyond the expiration of the Renewal Term (after following the service of the Renewal Notice);
30.2.2 Tenant shall be a tenant in possession, and except for the representations and warranties expressed by Landlord in this Lease, the Premises shall be delivered in their existing condition (on an “AS IS” basis) at the time the Renewal Term commences;
30.2.4 The Base Rental during the Renewal Term shall be the then prevailing fair market rate, terms and conditions (including rent concessions) for comparable buildings in Malibu, California;
30.2.5 The Base Year for purposes of calculating the AdditionalRent under Article 4, above, for the (each) Renewal Term will continue to be the Base Year set forth in Section 7.3 of the Summary.
30.3 New Lease After Renewal Term. In furtherance of the foregoing Option to Renew and except as provided in this Article 30, this Lease may only be extended beyond the Expiration Date upon: (a) Tenant exercising the Option to Renew as contemplated in Section 30.1 of this Lease; and (b) the Parties executing a lease extension signed by both Parties making specific reference to this Lease. No proposals, offers, correspondence or the like shall be legally binding upon Wave or Tenant until and unless the terms are incorporated in writing and executed by both Parties.
[Signature Page Follows]
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IN WITNESS WHEREOF, Wave and Tenant have caused this Lease to be executed as of the Effective Date.
LANDLORD:
WAVE ENTERPRISES, INC.,
a California nonprofit corporation
By: _______________________
Jeffrey Rohde
Vice President & CIO
Date: ____________________________
TENANT:
City of Malibu
A California Municipal Corporation
By: _______________________
Name:
Title:
Date: ____________________________
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EXHIBIT A-1
PREMISES FLOOR PLAN
23805 STUART RANCH RD., SUITE 240], MALIBU, CALIFORNIA 90265 [LANDLORD TO PROVIDE]
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EXHIBIT A-2
PROPERTY SITE PLAN
[INSERT]
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EXHIBIT “B”
MALIBU PROFESSIONAL PARK
RULES AND REGULATIONS
Tenant and Tenant’s employees shall observe and comply with the following Rules and Regulations.
Wave shall not be responsible to Tenant for the nonperformance of any of these Rules and Regulations by or otherwise with respect to the acts or omissions of any other tenants or occupants of the Building. Tenant agrees to provide Tenant’s employees with a copy of Rules and Regulations for their information and awareness of all requirements.
1. Tenant shall not alter any lock or install any new or additional locks or bolts on any doors or windows of the Premises without obtaining Wave’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. Tenant shall bear the cost of any lock changes or repairs required by Tenant. Two keys will be furnished by Wave for the Premises, and any additional keys required by Tenant must be obtained from Wave at a reasonable cost established by Wave.
2. All doors opening to public corridors shall be kept closed at all times except for normal ingress and egress to the Premises.
3. Wave reserves the right to close and keep locked all entrance and exit doors of the common area of the Building during such hours as are customary for comparable buildings in the Malibu/Santa Monica area. Tenant, its employees and agents must be sure that the doors to the common area of the Building are securely closed and locked when leaving the Premises if it is after such hours of business. Access to the Building via the entrance and exit doors of the common area of the Building may be refused unless the person seeking access has proper identification or has a previously arranged pass for access to the Building. Wave and its agents shall in no case be liable for damages for any error with regard to the admission to or exclusion from the Building of any person. In case of invasion, mob, riot, public excitement, or other commotion, Wave reserves the right to prevent access to the Building during the continuance thereof by any means it deems appropriate for the safety and protection of life and property.
4. All moving activity into or out of the Building shall be scheduled with Wave and done only at such time and in such manner as Wave designates. Wave shall have the right to prescribe the weight, size and position of all safes and other heavy property brought into the Building and also the times and manner of moving the same in and out of the Building. Safes and other heavy objects shall, if considered necessary by Wave, stand on supports of such thickness as is necessary to properly distribute the weight. Wave will not be responsible for loss of or damage to any such safe or property in any case. Any damage to any part of the Building, its contents, occupants or visitors by moving or maintaining any such safe or other property shall be the sole responsibility and expense of Tenant.
5. No furniture, major supplies or equipment may be received through the common areas of the Building except during times reasonably determined in advance by Wave, in order to avoid obstruction to the common areas and inconvenience to other tenants.
6. Any requests of Tenant shall be directed to the management office for the Property.
Employees of Wave shall not perform any work or do anything outside their regular duties unless under special instructions from Wave.
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7. Tenant shall not disturb, solicit, or canvass any occupant of the Property and shall cooperate with Wave and its agents to prevent such activities.
8. The toilet rooms, urinals, wash bowls, and other apparatus shall not be used for any purpose other than that for which they were constructed, and no foreign substance of any kind whatsoever shall be thrown therein. The expense of any breakage, stoppage, or damage resulting from the violation of this rule shall be borne by the tenant who, or whose employees or agents, shall have caused it.
9. Tenant shall not overload the floor of the premises, nor mark, drive nails or screws, or drill into the partitions, woodwork or plaster, except in the course of hanging standard sized pictures, frames and objects of art, or in any way deface the Premises or any part thereof without Wave’s consent first had and obtained. Tenant shall be permitted to bolt all file cabinets to walls.
10. Tenant shall not use or keep in or on the Premises, the Building, or the Property any kerosene, propane, gasoline, or other flammable or combustible fluid or material, including any type of cooking equipment.
11. Tenant shall not, without the prior written consent of Wave, use any method of heating, including any type of space heater or other type of heating equipment or air conditioning equipment, other than that supplied by Wave.
12. Tenant shall not use, keep or permit to be used or kept, any foul or noxious gas or substance in or on the Premises, or permit or allow the Premises to be occupied or used in a manner offensive or objectionable to Wave or other occupants of the Property by reason of noise, odors, or vibrations, or interfere in any way with other tenants or those having business therein.
13. Tenant shall not bring into or keep within the Building or the Premises any bicycles or other vehicles.
14. No cooking or food preparation shall be done or permitted on the Premises, nor shall the Premises be used for the storage of any food preparation equipment, or of merchandise for lodging or manufacturing or for any improper, objectionable, or immoral purposes. Notwithstanding the foregoing, Underwriters’ Laboratory approved equipment and microwave ovens may be used in the Premises for heating food and brewing coffee, tea, hot chocolate, and similar beverages for employees and visitors, provided that such use is in accordance with all applicable federal, state, and city laws, codes, ordinances, rules, and regulations. Tenant will pay for dedicated circuits to be installed by Wave’s electrician should this become necessary.
15. Wave will approve where and how telephone, telegraph, cable, satellite dishes, or other wires can be introduced into the Premises. No boring or cutting for wires shall be allowed without the consent of Wave. The location of telephone, call boxes, and other office equipment affixed to the Premises shall be subject to the approval of Wave not to be unreasonably withheld.
16. Wave reserves the right to exclude or expel from the property any person who, in the reasonable judgment of Wave, shall in any manner disturb or threaten to disturb the peace or quiet enjoyment of any person or tenant.
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17. Tenant, its employees, and agents shall not loiter in the entrances or corridors, nor in any way obstruct the sidewalks, lobby, halls, stairways, or elevators, and shall use them only as a means of ingress and egress for the Premises.
18. Tenant shall not waste air conditioning and agrees to cooperate fully with Wave to ensure the effective operation of and avoid damage to the Building’s heating and air conditioning system.
19. Tenant shall store all its trash and garbage within the interior of the Tenant’s Premises. No material shall be placed in the trash boxes or receptacles if such material is of such nature that it may not be disposed of in the ordinary and customary manner of removing and disposing of trash and garbage in Malibu, California without violation of any law or ordinance governing such disposal. All trash, garbage, and refuse disposal shall be made only through entry ways and elevators provided for such purposes at such times as Wave shall designate.
20. Tenant shall comply with all safety, fire protection and evacuation procedures and regulations established and produced in writing by Wave or any governmental agency.
21. Except for Wave’s willful misconduct or gross negligence, Wave shall not be responsible for theft, robbery, and pilferage from the Premises, and Tenant shall take all reasonable means and measures to protect itself from the same. Tenant acknowledges that Wave does not maintain a security guard and does not maintain any type of surveillance or electronic security system for the Building and common areas.
22. Subject to the terms of Article 23, no awnings, signs, or coverings shall be attached to the outside walls of the Building without the prior written consent of Wave, which shall not be unreasonably withheld, conditioned, or delayed. No curtains, blinds, shades or screens shall be attached to or hung in, or used in connection with, any window or door of the Premises without the prior written consent of Wave.
23. The sashes, sash doors, skylights, windows, and doors that reflect or admit light and air into the halls, passageways, or other public places in the Building shall not be covered or obstructed by Tenant, nor shall any bottles, parcels or other articles be placed on the windowsills.
24. Common Area balconies under any condition cannot be used for conducting Tenant’s business.
No furniture of any kind, including patio furniture, tables and chairs, etc. can be placed outdoors in any Common Area. The use of exterior surveillance cameras or any other monitoring equipment such as security cameras, cannot be installed on any exterior portion of the building or in Common Area hallways, except as provided by Wave. No cooking, no barbeques, no towels, exercise equipment, etc., can be placed, stored, or operated in any Common Area.
25. No Tenant employee or invitee shall go upon the roof of the Building.
26. Tenant shall not permit smoking, vaping or the carrying of lighted cigarettes or cigars in areas designated as no smoking, such as offices and corridors.
27. Wave will not be responsible for any damage to vehicles, injury to persons or loss of property occurring in the parking area except if such loss arises from Wave’s gross negligence or willful misconduct; these risks are assumed by the party using the parking area. No vehicles, without express permission from Wave, shall be left overnight, on weekends or at any other time. 65273.00001\43200124.3
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Any unauthorized vehicle or vehicle parked in violation of the law, this Lease, or any applicable rules and regulations may be towed in accordance with applicable law.
28. Tenant shall not permit its agents, clients, contractors, directors, employees, invitees, licensees, officers, partners, members, or shareholders to bring or keep within the Property or the Premises any animal, except for qualified “service animals” as strictly defined in the American with Disabilities Act and any supporting regulations and/or successor statute, or as may be permitted under the requirements of any statutes or ordinances having jurisdiction therefor.
29. Wave reserves the right at any time to change or rescind any one or more of these Rules and Regulations, or to make such other and further reasonable Rules and Regulations as in Wave’s judgment may from time to time be necessary for the management, safety, care and cleanliness of the Premises, Building, the common areas and the Property, and for the preservation of good order therein, as well as for the convenience of other occupants and tenants therein, provided that (i) Wave shall promptly provide Tenant with a copy of such amended Rules and Regulations, (ii) they are applicable to all similarly situated and similarly sized tenants of the Center, (iii) be uniformly enforced against all such similarly situated and similarly sized tenants, and (iv) not decrease Tenant’s rights hereunder nor increase Tenant’s obligations hereunder. Tenant shall be deemed to have read these Rules and Regulations and to have agreed to abide by them as a condition of its occupancy of the Premises. Wave may waive any one or more of these Rules and Regulations for the benefit of any particular tenants, but no such waiver by Wave shall be construed as a waiver of such Rules and Regulations in favor of any other tenant, nor prevent Wave from thereafter enforcing any such Rules or Regulations against any or all tenants of the Property.
***
65273.00001\43200124.3
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EXHIBIT C
LANDLORD’S ACH DEPOSIT INSTRUCTIONS
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EXHIBIT D
LANDLORD’S FORM W-9
Agenda Item # 1.B.10.
Council Agenda Report
To: Mayor Stewart and the Honorable Members of the City Council Prepared by: Kate Manisco, Recreation Manager
Approved by: Joseph D. Toney, Acting City Manager
Date prepared: February 4, 2025 Meeting date: February 10, 2025 Subject: Professional Services Agreement with Ultimate Maintenance Services RECOMMENDED ACTION: 1) Authorize the Mayor to execute a Professional Services Agreement with Ultimate Maintenance Service Inc. for custodial services at the Fire Rebuild Office at 23805 Stuart Ranch Road, Malibu; and 2) Authorize the City Manager or designee to amend the approved agreements if necessary to receive reimbursement from FEMA or any other governmental agency.
FISCAL IMPACT: Funding for these services was not included in the Adopted Budget for FY 2024-25. These services are requested in response to Local Emergency enacted on January 10, 2025, related to the Palisades Fire recovery efforts. The annual cost is $22,800 and the contract amount is not to exceed $45,600 and will be charged to account 102-3101-5100-00 (Palisades Fire Professional Services) STRATEGIC PRIORITY: This item supports the Public Safety and day-to-day operations identified in the Adopted FY 2024-25 Strategic Priority Project List. Responding to disasters like the Palisades Fire and supporting community recovery is the City’s most immediate and top priority as part of the city's fundamental operations.
DISCUSSION: On January 7, 2025, a fire broke out in Pacific Palisades, north of Pacific Coast Highway (PCH) between Temescal Canyon Road and Palisades Drive. The fire spread west, affecting areas within the jurisdiction of the City of Los Angeles, the County of Los Angeles, and the City of Malibu. As of the date of this report, the fire has burned over 23,000 acres. CalFire, reported at least 6,700 structures have been damaged or destroyed in the Palisades Fire, including over 700 within City limits.
As the City shifts from emergency response to community recovery, additional offices are needed for Building Safety, Environmental Sustainability, Planning, and Public Works City Council Meeting
02-10-25
Item
1.B.10.
Agenda Item # 1.B.10.
contractors and staff. The Recovery Team will assist residents in a one-stop shop for permits, reviews, and rebuild questions.
Ultimate Maintenance Service Inc. (UMS) is the current custodial service contractor that provides janitorial services at Malibu City Hall and City parks. UMS has demonstrated outstanding professionalism, experience, and reliable communication.
Staff contacted UMS to request an extension of janitorial services at 23805 Stuart Ranch Road, Malibu, and they agreed to complete the work. The estimated cost for services from March 1, 2025, to February 28, 2027, is $45,600.
Staff recommends that the Council authorize the Mayor to execute the Professional Services Agreement with Ultimate Maintenance Services Inc.
ATTACHMENTS: Professional Services Agreement with Ultimate Maintenance Services Inc.
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of February 10, 2025 by and between the City of Malibu, a California municipal corporation (hereinafter referred to as the "City"), and Ultimate Maintenance Services, Inc., a California corporation (hereinafter referred to as "Consultant").
The City and the Consultant agree as follows:
R E C I T A L S
A. The City does not have the personnel able and/or available to perform the services required under this Agreement.
B. The City desires to contract out for consulting services for certain projects relating to custodial services at the Malibu Rebuild Center, 23805 Stuart Ranch Road, Malibu, CA.
C. The Consultant warrants to the City that it has the qualifications, experience, and facilities to perform properly and timely the services under this Agreement.
D. The City desires to contract with the Consultant to perform the services as described in Exhibit A of this Agreement.
NOW, THEREFORE, the City and the Consultant agree as follows:
1.0 SCOPE OF THE CONSULTANTS SERVICES. The Consultant agrees to provide the services and perform the tasks set forth in the Scope of Work (Exhibit A), attached to and made part of this Agreement, except that, to the extent that if any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The Scope of Work may be amended from time to time by way of a written directive from the City.
2.0 TERM OF AGREEMENT. This Agreement will become effective on March 1, 2025, and will remain in effect for a period of two years from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.
3.0 CITY AGENT. The City Manager, or his or her designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Consultant understands that the City Manager, or her designee, has the authority to provide that approval or authorization.
4.0 COMPENSATION FOR SERVICES. The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Works fee and cost schedule. The cost of services shall be $1,900 per month, for a total amount not to exceed $22,800 annually. No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or his or her designee.
Agreement for Professional Services
Ultimate Maintenance Services, Inc.
4.1 The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month.
The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
5.0 CONFLICT OF INTEREST. The Consultant represents that it presently has no interest and shall not acquire any interest, direct or indirect, in any real property located in the City which may be affected by the services to be performed by the Consultant under this Agreement. The Consultant further represents that in performance of this Agreement, no person having any such interest shall be employed by it.
5.1 The Consultant represents that no City employee or official has a material financial interest in the Consultants business. During the term of this Agreement and/or as a result of being awarded this contract, the Consultant shall not offer, encourage or accept any financial interest in the Consultants business by any City employee or official.
5.2 If a portion of the Consultants services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within the City or with a City franchisee, the Consultant warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.
6.0 GENERAL TERMS AND CONDITIONS.
6.1 Termination. Either the City or the Consultant may terminate this Agreement, without cause, by giving the other party ten (10) days written notice of such termination and the effective date thereof.
6.1.1 In the event of such termination, all finished or unfinished documents, reports, photographs, films, charts, data, studies, surveys, drawings, models, maps, or other documentation prepared by or in the possession of the Consultant under this Agreement shall be returned to the City. If the City terminates this Agreement without cause, the Consultant shall prepare and shall be entitled to receive compensation pursuant to a close-out bill for services rendered and fees incurred pursuant to this Agreement through the notice of termination.
If the Consultant terminates this Agreement without cause, the Consultant shall be paid only for those services completed in a manner satisfactory to the City.
6.1.2 If the Consultant or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Consultant or the City violate any of the covenants, agreements, or stipulations of this Agreement, the Consultant or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. The Consultant shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder. Notwithstanding the foregoing, the Consultants shall not be relieved of liability for damage sustained by virtue of any breach of this Agreement and any payments due under this Agreement may be withheld to off-set anticipated damages.
Agreement for Professional Services
Ultimate Maintenance Services, Inc.
6.2 Non-Assignability. The Consultant shall not assign or transfer any interest in this Agreement without the express prior written consent of the City.
6.3 Non-Discrimination. The Consultant shall not discriminate as to race, creed, gender, color, national origin or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances and codes of the Federal, State, County and City governments.
6.4 Insurance. The Consultant shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than one (1) day prior to beginning of performance under this Agreement:
(a) Workers Compensation Insurance as required by law. The Consultant shall require all subcontractors similarly to provide such compensation insurance for their respective employees.
(b) Comprehensive general and automobile liability insurance protecting the Consultant in amounts not less than $1,000,000 for personal injury to any one person, $1,000,000 for injuries arising out of one occurrence, and $500,000 for property damages or a combined single limit of $1,000,000. Each such policy of insurance shall:
1) Be issued by a financially responsible insurance company or companies admitted and authorized to do business in the State of California or which is approved in writing by City.
2) Name and list as additional insured the City, its officers and employees.
3) Specify its acts as primary insurance.
4) Contain a clause substantially in the following words: "It is hereby understood and agreed that this policy shall not be canceled nor materially changed except upon thirty (30) days prior written notice to the City of such cancellation or material change."
5) Cover the operations of the Consultant pursuant to the terms of this Agreement.
6.5 Indemnification. Consultant shall indemnify, defend with counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers 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 Consultants performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, regardless of Citys passive negligence, but excepting such loss or damage which is caused by the sole active negligence or willful misconduct of the City. Should City in its sole discretion find Consultants legal counsel unacceptable, then Consultant shall reimburse the City its costs of defense, including without Agreement for Professional Services
Ultimate Maintenance Services, Inc.
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation. The Consultant shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) covered by this indemnity obligation. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
6.6 Compliance with Applicable Law. The Consultant and the City shall comply with all applicable laws, ordinances and codes of the federal, state, county and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.
6.7 Independent Contractor. This Agreement is by and between the City and the Consultant and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture or association, as between the City and the Consultant.
6.7.1. The Consultant shall be an independent contractor, and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of the Consultant, or any of the Consultants employees, except as herein set forth, and the Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that the Consultant is and shall at all times remain to the City a wholly independent contractor and the Consultant's obligations to the City are solely such as are prescribed by this Agreement.
6.8 Copyright. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of the Consultant.
6.9 Legal Construction.
(a) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.
(b) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(c) The article and section, captions and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
(d) Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the Agreement for Professional Services
Ultimate Maintenance Services, Inc.
singular shall refer to and include the plural.
6.10 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.
6.11 Final Payment Acceptance Constitutes Release. The acceptance by the Consultant of the final payment made under this Agreement shall operate as and be a release of the City from all claims and liabilities for compensation to the Consultant for anything done, furnished, or relating to the Consultants work or services. Acceptance of payment shall be any negotiation of the Citys check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by the City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, sub-consultants and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by the City for any defect or error in the work prepared by the Consultant, its employees, sub-consultants and agents.
6.12 Corrections. In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work which may be disclosed during the Citys review of the Consultants report or plans. Should the Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by the City, and the cost thereof shall be charged to the Consultant.
6.13 Files. All files of the Consultant pertaining to the City shall be and remain the property of the City. The Consultant will control the physical location of such files during the term of this Agreement and shall be entitled to retain copies of such files upon termination of this Agreement.
6.14 Waiver; Remedies Cumulative. Failure by a party to insist upon the performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
6.15 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
6.16 Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will Agreement for Professional Services
Ultimate Maintenance Services, Inc.
nevertheless continue in full force without being impaired or invalidated in any way.
6.17 Attorneys Fees. The parties hereto acknowledge and agree that each will bear his/her or its own costs, expenses and attorneys fees arising out of and/or connected with the negotiation, drafting and execution of the Agreement, and all matters arising out of or connected therewith except that, in the event any action is brought by any party hereto to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys fees and costs in addition to all other relief to which that party or those parties may be entitled.
6.18 Entire Agreement. This Agreement constitutes the whole agreement between the City and the Consultant, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City and the Consultant.
6.19 Notices. Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
CITY:
Joe Toney
CONSULTANT:
Paul Marmol
Acting City Manager CEO, Director of Operations
City of Malibu Ultimate Maintenance Services, Inc.
23825 Stuart Ranch Road 4237 Redondo Beach Blvd
Malibu, CA 90265-4861 Lawndale, CA 90260
TEL (310) 456-2489 x 224 TEL (310) 542-1474
FAX (310) 456-2760
6.20 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
7.0 GENERAL TERMS AND CONDITIONS. (City and Consultant initials required at EITHER 7.1 or 7.2)
7.1 Disclosure Required. By their respective initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is a consultant for the purposes of the California Political Reform Act because Consultants duties would require him or her to make one or more of the governmental decisions set forth in Fair Political Practices Commission Regulation 18700.3(a) or otherwise serves in a staff capacity for which disclosure would Agreement for Professional Services
Ultimate Maintenance Services, Inc.
otherwise be required were Consultant employed by the City. Consultant hereby acknowledges his or her assuming-office, annual, and leaving-office financial reporting obligations under the California Political Reform Act and the Citys Conflict of Interest Code and agrees to comply with those obligations at his or her expense. Prior to consultant commencing services hereunder, the Citys Manager shall prepare and deliver to consultant a memorandum detailing the extent of Consultants disclosure obligations in accordance with the Citys Conflict of Interest Code.
City Initials ______
Consultant Initials ______
7.2 Disclosure not Required. By their initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is not a consultant for the purpose of the California Political Reform Act because Consultants duties and responsibilities are not within the scope of the definition of consultant in Fair Political Practice Commission Regulation 18700.3(a) and is otherwise not serving in staff capacity in accordance with the Citys Conflict of Interest Code.
City Initials ______
Consultant Initials ______
This Agreement is executed on _______________, 2025, at Malibu, California, and effective as of March 1, 2025.
CITY OF MALIBU: ___________________________________ DOUG STEWART, Mayor ATTEST: ___________________________________ KELSEY PETTIJOHN, City Clerk (seal)
CONSULTANT: _______________________________ By: PAUL MARMOL, CEO, Director of Operations
APPROVED AS TO FORM: ___________________________________ TREVOR RUSIN, Interim City Attorney Custodial Services
Scope of Work 2025
Ultimate Maintenance Services Inc.
Custodial Services - Scope of Work
The custodial services include but are not limited to cleaning, washing, emptying trash, and other services necessary to maintain and secure facilities in operational condition.
The services shall be implemented in accordance with a mixture of daily, weekly, monthly, quarterly, and seasonal cleaning and maintenance schedules. In addition, the Ultimate Maintenance Services Inc.shall assist with preventive and miscellaneous maintenance work by promptly reporting broken, malfunctioning, or vandalized equipment, fixtures, or structures.
Ultimate Maintenance Services Inc. shall provide all management, tools, equipment, in a manner that will maintain a satisfactory condition and present a clean, neat, and professional appearance.
City Leased Facilities
Malibu Rebuild Center – 23805 Stuart Ranch Road, Suite 240 A 2,947 square foot (approximate) leased commercial office building including offices, one kitchen, conference rooms, and common areas.
General Description of the Work to be Performed
Carpeted Areas
After vacuuming, the carpeted areas shall be free of all visible dirt, debris, litter, and other foreign matter. Any spots shall be removed by carpet manufacturer's approved methods as soon as noticed. Area and throw rugs are included to receive this service. All carpets shall be cleaned in accordance with standard commercial practices. No bonnet cleaning machines shall be used. A portable water extractor spot remover should be on hand during every shift. A heavy-duty spot remover may be required in heavily soiled areas. After shampooing, the carpeted area will be uniform in appearance and free of stains and discoloration.
All cleaning solutions shall be removed from baseboards, furniture, trash receptacles, chairs, and other similar items. Chairs, trash receptacles, and other items shall be moved to clean carpets beneath them, then returned to their original location.
Dusting
All horizontal surfaces, including sign surfaces, pictures, ledges, pot shelves, light fixtures (removal of dead insects), must be dusted or cleaned to eliminate dust collection.
Custodial Services
Scope of Work 2025
Ultimate Maintenance Services Inc.
Floors
All floors, except carpeted areas or area/throw rugs, shall be swept, dust mopped, damp mopped, wet mopped, and buffed, as needed and, depending on the material, to ensure they have a uniform, glossy appearance and are free from dirt, debris, dust, scuff marks, heels marks, other stains and discoloration, and other foreign matter. Baseboards, corners, and wall/floor edges shall also be clean. All floor maintenance solutions shall be removed from baseboards, furniture, trash receptacles, etc. Chairs, trash receptacles, and other moveable items shall be moved to maintain floors beneath them. All moved items shall be returned to their original and proper position.
Green Cleaning Supplies
Third-party certified green cleaning supplies such as Simple Green and Green Works or equal must be used for all cleaning purposes. Acceptable certifications include Green Seal, EPA Safer Choice, and Ecologo.
Hard Floors
Strip, scrub, seal, and wax floors in the common areas as scheduled to maintain a uniform, glossy appearance. A non-skid wax is required. A uniform glossy appearance is free of scuff marks, heel marks, wax buildup, and other stains and discoloration.
Interior Glass/Mirrors
Clean all interior glass, including glass on doors, partitions, walls, display cases, directory boards, etc. After glass cleaning, there shall be no traces of film, dirt, smudges, water, or other foreign matter.
Interior Windows/Doors
Clean glass surfaces. After surfaces have been cleaned, all traces of film, dirt, smudges, water, and other foreign matter shall be removed from frames, casings, sills, glass, and door kick-plates.
Landfill Trash, Recycling, and Compost
At facilities with color-coded waste streams, receptacle liners must also be colorcoded: blue (for recycling), green (for compost) and black (for landfill). Alternate color combinations may include clear for recycling, clear or green for compost, and black for landfill. All three waste streams (recycling, compost, and landfill) containers shall be emptied and returned to their initial location. After servicing any dual and triple waste stream sorting stations, the top of the sorting stations must be wiped clean. Boxes, cans, or papers placed near a trash receptacle and Custodial Services
Scope of Work 2025
Ultimate Maintenance Services Inc.
marked "Trash" or “Recycling” shall be removed and placed in the correct colorcoded bins. Boxes shall be broken down to minimize bulk. Any obviously soiled or torn plastic receptacle liners shall be replaced. Recycling, compost and landfill bags must be deposited in the appropriate color-coded bins located in the parking lot. Bin lids shall be closed at all times to prevent access to rodents and other animals. Receptacles, bins and the surrounding areas shall be left clean, free of foreign matter, and free of odors. No trash should be placed on bin lids.
Sinks
Descaling shall be performed to keep areas free of scale, soap films, and other deposits. After descaling, surfaces shall be free from streaks, stains, scale, scum, and rust stains.
Spot Cleaning
Perform spot cleaning continually. Spot cleaning includes, but is not limited to removing or cleaning smudges, fingerprints, marks, streaks, spills, etc., from washable surfaces of all walls, partitions, vents, grillwork, doors, door handles, push-bars, kick-plates, light switches, temperature controls, fixtures, and dual and triple waste stream sorting stations. After spot cleaning, the surface shall have a clean, uniform appearance, free of streaks, spots, and other evidence of soil.
Schedule of Work to be Performed
All work shall be performed between 6:00 PM and 11:00 PM, Monday through Friday, excluding observed holidays.
Ultimate Maintenance Services Inc. will be responsible for providing necessary supplies and equipment to perform the scheduled work.
Daily Schedule
1. Pick up litter, empty all waste and recycling containers, and replace container liners with appropriate color liners. Discard recycling, compost and landfill materials into appropriate bins. Wipe down the tops and sides of the dual and triple waste stream sorting stations, and walls behind all receptacles.
2. Vacuum all carpeted floors and entry mats including exterior mats.
3. Sweep and wet mop floors, as needed, using a cleaning solution.
4. Spot clean carpets by hand, where needed, using appropriate carpet cleaner solution or power extractor.
Custodial Services
Scope of Work 2025
Ultimate Maintenance Services Inc.
5. Sweep entrance approaches.
6. Dust all exposed horizontal surfaces.
7. Remove cobwebs.
8. Straighten magazines in reception areas.
9. Clean reception glass.
10. Wash walls and doors, including kick plates, where needed, with wet sponge and cleaning solution.
11. Clean all interior glass, including glass in doors, with window cleaning solution.
12. Wipe down exterior railings on the entrances and decks.
13. Clean trophy case and exterior posting board. Necessary keys will be provided.
14. Remove exterior and interior cobwebs especially around the high light fixtures and cable rails.
Weekly Schedule
1. Polish furniture.
2. Perform high dusting of ceilings and other high cabinets.
3. Clean all door panic bar hardware with cleaning solution.
Monthly Schedule
1. Dust air vents and window blinds with a clean dry towel or as needed.
Six Times Per Year
1. Clean the carpets per Shaw Floors’ instructions, remove carpet stains, and apply stain repellent product, such as ScotchGard™ or equal.
Quarterly Schedule
1. Strip, wax, and buff floors tile floors per manufacturing standards.
2. Dust building fixtures, including but not limited to florescent lights, wall clocks, fire extinguishers and air vent ducts.
3. Clean and scrub all door thresholds.
Security
Key Control
The Ultimate Maintenance Services Inc. shall be responsible for all keys issued by the City. Ultimate Maintenance Services Inc. shall not duplicate any keys issued by the City. In the event keys are lost, stolen, or duplicated, the City may have the option to rekey the affected areas and deduct the cost from the monthly payment due to the selected firm. Ultimate Maintenance Services Inc.
Custodial Services
Scope of Work 2025
Ultimate Maintenance Services Inc.
shall prohibit the use of keys by any persons other than their employees or permit entrance of persons other than selected firms employees engaged in the performance of contract work requirements. Ultimate Maintenance Services Inc. agrees that failure to fully secure the facility can result in liquidated damages.
Security Requirements
Ultimate Maintenance Services Inc. must secure all doors and windows at the end of each work shift. All personnel employed by the Ultimate Maintenance Services Inc. in the performance of this agreement, or any representative of Ultimate Maintenance Services Inc. entering the City facilities, shall abide by all security regulations of the City.
Physical Security
Ultimate Maintenance Services Inc. shall be responsible for safeguarding all City property. At the end of each work shift, all City facilities, equipment, and materials shall be secured.
Quality Control
Ultimate Maintenance Services Inc. shall develop and maintain a quality program to ensure custodial services are performed in accordance with commonly accepted commercial practices. Ultimate Maintenance Services Inc. shall develop and implement procedures to identify, prevent, and ensure nonrecurrence of defective services. Ultimate Maintenance Services Inc. shall maintain Material Safety Data Sheets Logbooks and fill out a “Completed Task Log” Both documents shall be submitted to the City as needed. Ultimate Maintenance Services Inc. shall provide adequate staffing to achieve expectations and quality of services and cleaning schedules. In addition, a representative from the City and Ultimate Maintenance Services Inc. will meet periodically to review the expectations and quality of services being performed.
Agenda Item # 1.B.11.
Council Agenda Report
To: Mayor Stewart and the Honorable Members of the City Council Prepared by: Cynthia Alba, Executive Assistant
Reviewed by: Alexis Brown, Deputy City Manager
Approved by: Joseph D. Toney, Acting City Manager
Date prepared: February 6, 2025 Meeting date: February 10, 2025 Subject: Amendment to Professional Services Agreement with Tripepi Smith & Associates, Inc.
RECOMMENDED ACTION: 1) Authorize the Mayor to execute Amendment No. 1 to the Professional Services Agreement with Tripepi Smith, Inc. (Tripepi Smith) in the amount of $120,000 for a total not to exceed $250,000. This proposed amendment includes oncall communication services to support communication needs pertaining to the Franklin Fire 2024 and Palisades Fire 2025; and 2) Authorize the City Manager or designee to amend the approved agreements if necessary to receive reimbursement from FEMA or any other governmental agency.
FISCAL IMPACT: Funding for these services was not included in the Adopted Budget for FY 2024-25. The contract amount is $120,000 and will be charged to account 102-3101- 5100-00 (Palisades Fire Professional Services) and 102-3101-5100-00 (Franklin Fire Professional Services). The existence of the local emergency may qualify the City for reimbursement of certain expenditures associated with disaster response.
STRATEGIC PRIORITY: This item supports the Public Safety and day-to-day operations identified in the Adopted FY 2024-25 Strategic Priority Project List. Responding to disasters like the Palisades Fire and the Franklin Fire is the City’s most immediate and top priority as part of the city's fundamental operations.
DISCUSSION: On February 12, 2024, the City entered into an agreement with Tripepi Smith to provide community outreach and engagement consulting for community owned vacant lands.
City Council Meeting
02-10-25
Item
1.B.11.
Agenda Item # 1.B.11.
On December 9, 2024, the Franklin Fire broke out and was contained on December 19, 2024, with 20 structures destroyed and 28 structures damaged.
On January 7, 2025, at approximately 10:33 a.m. PST the Palisades Fire broke out in Pacific Palisades, north of Pacific Coast Highway (PCH) in between Temescal Canyon Road and Palisades Drive. The Acting Director of Emergency Services (Acting City Manager) proclaimed the existence of a local emergency on January 8, 2025, and the proclamation was ratified by the City Council on January 15, 2025. As of the date of this report, the fire has burned over 23,000 acres and is now 100% contained. According to CalFire, at least 6700 structures have been damaged or destroyed in the Palisades Fire.
During the period since January 8, the City has operated its Emergency Operations Center (EOC), with daily and nightly shifts covered by a combination of City staff, staff from other cities in the Los Angeles region through mutual aid requests, and consultants such as Tripepi Smith. The continued operation of the EOC will be necessary for a period of time to build a foundation stemming from EOC work to effectively transition to a recovery phase. The EOC is tasked with tracking, communicating, and addressing ongoing emergency conditions such as upcoming rain events and including regained access to power, gas, electricity, safe drinking water, internet, and reliable cell phone reception.
Tripepi Smith offers a comprehensive range of ad hoc communication services to the City of Malibu to support EOC operations, ensuring flexible and effective public engagement. These services include website creation, content creation, photography and video production, social media management, newsletter development, graphic design, speechwriting, press conference coordination, and marketing campaigns to ensure customized solutions tailored to the City's evolving needs. Tripepi Smith has assisted the city in launching a fire recovery website, social media management, press release coordination, and short term and long-term communication strategy building.
Staff recommends Council approve Amendment No. 1 to Agreement with Tripepi Smith.
ATTACHMENTS: Amendment No. 1 to Agreement with Tripepi Smith.
AMENDMENT NO. 1 TO AGREEMENT
THIS AMENDMENT NO. 1 TO AGREEMENT is made and entered in the City of Malibu on December 10, 2024 by and between the CITY OF MALIBU, hereinafter referred to as City, and Tripepi Smith and Associates, Inc., hereinafter referred to as Consultant.
The City and the Consultant agree as follows:
R E C I T A L S
A. On February 12, 2024, the City entered into an Agreement with Consultant for consulting services for certain projects relating to City-Owned Vacant Lots ).
B. The City desires to amend the Agreement to modify the scope of work to include on call communication services as needed and increase the not to exceed amount to two hundred fifty thousand dollars ($250,000) for the term of the agreement. The City experienced the Franklin and Palisades Fire incident increasing the need for on call communication services and Consultant has submitted a proposal for this purpose that is acceptable to the City.
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:
1. Section 1.0
forth in Exhibit A attached hereto.
2. Section 4.0 Compensation for Services, of the Agreement, is hereby amended as set forth in Exhibit A attached hereto.
3. The Parties agree that this Amendment will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
4. All terms and conditions of the Agreement not amended by this Amendment No. 1 remain in full force and effect.
This Agreement is executed on ______________________, at Malibu, California, and effective as of December 7, 2024.
CITY OF MALIBU: ____________________________________ DOUG STEWART, Mayor ATTEST: ____________________________________ KELSEY PETTIJOHN, City Clerk (seal)
Amendment No. 1 to Agreement
Tripepi Smith and Associates, Inc.
_____________________
255-2
APPROVED AS TO FORM: CONSULTANT: _____________________________________ ____________________________________ TREVOR RUSIN, Interim City Attorney By: Ryder Todd Smith Title: Cofounder & Principal
Amendment No. 1 to Agreement
Tripepi Smith and Associates, Inc.
_____________________
255-3
Exhibit A
ON-CALL COMMUNICATIONS
SERVICES
City of Malibu
December 4, 2024
By: Ryder Todd Smith
Co-founder & Principal
Tripepi Smith & Associates
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Table of Contents
COVER LETTER................................................................................3 PROJECT UNDERSTANDING..........................................................4 COST PROPOSAL ............................................................................7 Single Source Communications
Tripepi Smith & Associates 3
COVER LETTER
Thank you for the opportunity to expand Tripepi Smith’s partnership with the City of Malibu. This proposal offers all requested information, including Tripepi Smith’s understanding of your needs regarding on-call communications services.
Tripepi Smith is currently working with the City of Malibu on its Malibu Community Lands Project.
Through this engagement, we have gained valuable insights into the City’s external communication practices and the needs of the Malibu community. To that end, we are confident in our ability to effectively support your ongoing communication needs – we offer a wide range of expertise that we can leverage to support Malibu, including graphic design, website support, strategic communications, stock photography, videography, animation, public relations, social media management, editorial content and promotional materials.
Tripepi Smith anticipates that the project team currently working on the Malibu Community Lands Project will also be involved in this proposed engagement. We are confident that our dedication and proven track record continue to make us the right partner for Malibu. Thank you for considering us in this endeavor. We eagerly anticipate the chance to discuss our proposal in more detail.
Authorization
I affirm that I have the legal authorization to bind Tripepi Smith into agreements with the City of Malibu and to make the statements below on behalf of the firm. This proposal is valid for 60 days from the date of submission.
Regards,
Ryder Todd Smith
Co-Founder & President, Tripepi Smith & Associates, Inc.
[email protected] • (626) 536-2173 • PO Box 52152, Irvine, CA 92619 [email protected] is our preferred point of contact throughout the evaluation process.
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PROJECT UNDERSTANDING
Prospect Needs
The City of Malibu is seeking a partner to assist staff in reaching and engaging its community through sustained communications. Simultaneously, the City would benefit from a flexible arrangement that allows you to “ramp up” or “ramp down” services according to budget and priorities.
Tripepi Smith’s Approach
Tripepi Smith has experience in all facets of the City’s request. We’re confident that we can adapt to Malibu’s evolving needs.
Project Management
Tripepi Smith begins all engagements with a kickoff meeting with the client to: introduce personnel to one another, define Key Performance Indicators (metrics, goals and timelines); review project management processes; and ensure each stakeholder has a full understanding of their responsibilities.
Tripepi Smith primarily uses the following tools to manage projects:
• Google Workspace for email, creating real-time collaborative documents and instant messaging • Zoom or Google Meet for conference calls
• Sprout Social for social media management: posting and monitoring comments/messages • Meltwater for media intelligence and media relations
• Kantata for project/task management, internal project status updates and time entry These tools enable project managers to quickly determine a project’s budget status, review the schedule of tasks, send rapid notifications to the whole team if issues arise and, generally, sustain momentum on our efforts.
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Potential Services
Tripepi Smith is ready to provide ad hoc services to the City of Malibu. Our hourly rates for a full range of communication support services are included in the Cost Proposal section. Examples of these ad hoc requests include but are not limited to: photography services; video production services; newsletter development and assembly; graphic design support; writing speeches; writing Letters to the Editor; presentation preparation; media training sessions; drafting or reviewing policies and procedures; organizing press conferences; writing articles for Malibu’s websites or other publications; marketing campaigns; and other strategies, tactics and resources necessary to support your communications.
Below are details pertaining to potential service area needs identified by the City of Malibu.
Graphic Design
In today’s age of information saturation, it’s more important than ever for local governments to cut through the noise by designing materials that are attractive, interesting and reflective of the message.
Our diverse design team, from seasoned creative directors to detail-oriented technicians, illustrators, color experts and data visualization specialists, ensures we can tackle projects of every scale.
Moreover, we’ve honed an expertise in inspiring action among residents through daily collaboration with a wide range of public agencies. This translates to impactful visuals that grab attention, effectively communicate your message in a clear and engaging way and also inform the public. As public agency engagement specialists, accessibility is a cornerstone of every project that we undertake.
Our graphic design work spans:
• Logos, sub-logos, branding, campaigns
• Brochures, guides, newsletters, reports
• Animated visuals for social media,
video and web
• PDF, accessibility, ADA compliance
• PPT, presentations, meeting materials
• Stationery, business cards, templates
• Social media, web banners, email
• Infographics, financials, instructions
• Posters, banners, signage
• Conference materials, booths, swag
Media Intelligence
Our media intelligence services blend our in-house expertise with the advanced software of Meltwater, an enterprise-class comprehensive media monitoring solution that streamlines media monitoring, reporting, analytics and more for a number of benefits:
• Powerful Monitoring: Tracks everything being said about your agency online. • Stay Ahead of Crises: Identify and address potential issues before they snowball, protecting your reputation and minimizing disruption.
• Tailored to You: Receive insights tailored to your goals.
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• Smarter Decisions: Make informed choices based on data, not guesswork.
We understand that no two communities are the same. That's why we take a collaborative approach to tailor a solution that perfectly meets your needs. We’ll work closely with you to identify relevant keywords for tracking media coverage specific to your agency. You'll then begin to receive regular reports on media mentions, sentiment analysis, location data and top sources.
Please note that each variable is highly customizable, which can impact the scope of work and therefore the cost of this service. Based on our current assessment of your needs, we recommend our base package consisting of up to five queries, a monthly dashboard and weekly media mention digest sent via email.
Press Release Creation
Our team is seasoned in crafting compelling press releases and news articles, typically up to 500 words, to amplify Malibu's story and establish thought leadership. We tailor our work to your desired tone and direction, ensuring consistent execution. Collaboration with your staff might be necessary to ensure subject matter expertise and obtain quote approvals. You can lean on us to manage the entire content creation cycle, from crafting key messages and conducting interviews to drafting content and distributing it to your platforms or the media.
On-Call Strategic Communications Advice & Crisis Communications There may be cases where Malibu may need advice on stakeholder outreach, communication efforts and public engagement initiatives. Additionally, there may be instances when a serious, emergency issue arises, warranting collaboration among the proposed project team throughout the crisis management period. This includes responding to emergencies through coordinated communications efforts with key external stakeholders. Tripepi Smith will remain available 24/7 to support you through such instances, typically kicking discussions off in a virtual meeting, collaborating in a living workspace (as noted above) and emailing, texting or calling with updates as progress happens.
Social Media Management
• Content Creation: Social media content creation involves: planning, fact-checking, sourcing graphics, grammar checking and scheduling the post. Our team has experience producing content across Meta (Facebook and Instagram), Twitter/X, LinkedIn, Nextdoor and others. • Monitoring: Tripepi Smith will monitor Malibu’s social media site inboxes seven days a week for customer service opportunities, mainly responding to questions. When we identify an opportunity to respond, we will aim to do so within 24 hours of the comment post time or message receipt time.
We will occasionally require fact-checking and guidance from the City for more nuanced responses.
Additional: Our work also includes optimizing social media accounts to enhance performance and/or take advantage of useful features. "Boosted Posts" and other targeted advertisements are also helpful in disseminating information to community members. Tripepi Smith is fully capable of running and tracking these paid campaigns (fees to be agreed upon and paid by the City).
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Webpage Management
Tripepi Smith can supplement ongoing website content maintenance through content creation, content organization, copywriting and maintenance services. Our team has built websites from scratch as well as managed website content for dozens of public agencies. Our breadth of experience spans content management systems, including CivicPlus, Revize, WordPress, Vision, Civica and OpenCities, plus analytics software, such as Piwik and Google Analytics. We combine data on how constituents use the City website, technical knowhow and writing skills to inform how website content may be better organized.
COST PROPOSAL
We recommend a Time & Materials (T&M) model that allows you the flexibility to “ramp up” or “ramp down” efforts according to budget and priorities. Tripepi Smith is prepared to provide these services and other requests at the following approximate costs. We only begin work with your written consent.
Service/Deliverable Scope Estimated Cost
Graphic Design Up to 10 hours of graphic design work $1,245/month Media Intelligence Base package (5 queries, monthly dashboard and weekly media mention digest)
$525/month
Press Release Creation Researching and drafting one press release $580/release On-Call Strategic
Communications Advice &
Crisis Communications
1-hour phone calls $785/call
Social Media Management
& Monitoring
Development of up to 2 social media posts per
week and monitoring services
$320/week
Webpage Management Up to 3 hours of website updates $415/week Single Source Communications
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As-Needed Services
Tripepi Smith will apply the following standard hourly rates and related fees for any authorized asneeded (Time & Materials) work. Such work must be clearly authorized in writing before proceeding.
As the City currently has an open contract with Tripepi Smith through February 12, 2025, Tripepi Smith will continue using our current rates:
2023-24 Hourly Rates Hourly - Standard
Principal $350
Director $240
Art/Creative Director $240
Senior Business Analyst $190
Business Analyst $130
Junior Business Analyst $105
Senior Videographer/Animator $190
Senior Photographer/Graphic Designer $175
Photographer/Videographer $120
Graphic Designer $120
Junior Graphic Designer $105
Web Developer $195
Drone Operator $195
Council Chamber A/V Operator $105
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Beginning February 13, 2025, the following standard hourly rates and related fees will apply for the specified scope of work and any additional work desired:
2024-25 Hourly Rates Standard Reduced Retainer
Principal $370 $295
Director $255 $215
Art/Creative Director $255 $215
Senior Business Analyst $195 $165
Business Analyst $140 $115
Junior Business Analyst $115 $95
Senior Videographer/Animator $195 $165
Senior Photographer $170 $145
Videographer/Photographer $130 $110
Junior Videographer/Photographer $110 $95
Senior Graphic Designer $185 $155
Graphic Designer $130 $110
Junior Graphic Designer $110 $95
Web Developer $195 $175
Junior Web Developer $110 $95
Drone Operator $195 $170
Council Chamber A/V Operator $110 $95
Invoicing & Payment Terms
At Tripepi Smith, we bill on either a Retainer, Fixed Fee or Time & Materials basis, with each billing type following its own payment schedule. Regardless, terms are Net 30 days. • Fixed Fee work is billed upon defined milestones listed above. • Time & Materials work is billed in 15-minute increments (i.e. 4.0, 1.25, 6.5 or 0.75 hours) at the end of the month in which work is done.
• Retainer work is billed on the 15th of each month.
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Other Cost Information
Tripepi Smith has related service fees that may come up during our engagement that we want to tell you about.
Annual Increase
Tripepi Smith will increase the hourly rates and retainer fees for all resources by 5% or the national CPI index–whichever is higher–each year on the anniversary of the contract, starting on the first anniversary of any contract when the contract duration is longer than one year. Otherwise, new rates will be negotiated with each new contract.
Retainer Discount
When a client’s retainer exceeds $7,150 per month, they gain access to our reduced retainer rates.
Travel Costs
Travel costs must be pre-authorized and then will be reimbursed by the client for any requested travel to complete a requested scope of work. Travel costs may include airfare, lodging, car rentals and gas.
Additionally, when client work requires that we be onsite, we will invoice for a resource’s travel time at 50% of the resource’s hourly rate.
Equipment Costs
Tripepi Smith offers some services that require equipment, such as drone operations and video production. As such, in those cases, the following rates apply:
Half Day (Under 4 Hours) Full Day (4+ Hours)
Video $400 $600
Drone $500 – Flat Fee
Service Fees
Tripepi Smith prefers that clients pay service providers directly to avoid unnecessary administrative costs. You should also know, however, that we have no economic interest in service providers, unless otherwise specified in this proposal.
If a client asks Tripepi Smith to pay for a service provider bill, we will apply a 10% agency fee to the reimbursement expense. Typical service fees include, but are not limited to: print, mailing, digital advertising, media placements, voiceovers, translations and closed captions.
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Exclusive Access
Tripepi Smith has access to entities that may be relevant to our engagement. These partnerships allow Tripepi Smith to offer clients extra media reach or additional services at partner pricing.
Local Information Network of Knowledge (LINK): www.LocalInfoNetwork.com – A community forum for local government professionals in California to discover and share resources, policies, sample work products, best practices and more.
PublicCEO: www.PublicCEO.com – Digital news about public affairs, reaching over 17,500 California government executives through a daily podcast, job board, video podcast and more.
Civic Business Journal: www.CivicBusinessJournal.com – Digital interest stories on the people, companies and solutions that make local government in California more effective.
FlashVote: www.FlashVote.com – Statistically valid surveying that helps leaders make decisions. • Disclaimer: Tripepi Smith President Ryder Todd Smith is an investor in FlashVote.
Tripepi Smith Talent Solutions: www.TSTalentSolutions.com – A multifaceted recruitment consultancy service, combining local government access with communications to advance talent quests and build culture warriors.
Meltwater: www.TripepiSmith.com/Media-Intelligence – An enterprise-class, comprehensive media monitoring solution that is best combined with Tripepi Smith’s analytics team.
Agenda Item # 1.B.12.
Council Agenda Report
To: Mayor Stewart and the Honorable Members of the City Council Prepared by: Cynthia Alba, Executive Assistant
Reviewed by: Alexis Brown, Deputy City Manager
Approved by: Joseph D. Toney, Acting City Manager
Date prepared: February 6, 2025 Meeting date: February 10, 2025 Subject: Professional Services Agreement with Tripepi Smith & Associates, Inc. for On-Call Communication Services
RECOMMENDED ACTION: 1) Receive and file a report on on-call communication services with Tripepi Smith & Associates Inc. (Tripepi Smith) pertaining to Palisades Fire communications; and 2) Authorize the City Manager or designee to amend the approved agreements if necessary to receive reimbursement from FEMA or any other governmental agency.
FISCAL IMPACT: Funding for these services was not included in the Adopted Budget for FY 2024-25. The contract amount is $200,000 and will be charged to account 102- 3101-5100-00, Palisades Fire Professional Services. The existence of the local emergency may qualify the City for reimbursement of certain expenditures associated with disaster response.
STRATEGIC PRIORITY: This item supports the Public Safety and day-to-day operations identified in the Adopted FY 2024-25 Strategic Priority Project List. Responding to disasters like the Palisades Fire is the City’s most immediate and top priority as part of the city's fundamental operations.
DISCUSSION: On Tuesday, January 7, 2025, at approximately 10:33 a.m. PST a fire broke out in Pacific Palisades, north of Pacific Coast Highway (PCH) in between Temescal Canyon Road and Palisades Drive. The fire spread west, affecting areas within the jurisdiction of the City of Los Angeles, the County of Los Angeles, and the City of Malibu. The fire combined with a historic Santa Ana Wind event and power outages created conditions of extreme peril to the safety of persons and property. The Acting City Council Meeting
02-10-25
Item
1.B.12.
Agenda Item # 1.B.12.
Director of Emergency Services (Acting City Manager) proclaimed the existence of a local emergency on January 8, 2025, and the proclamation was ratified by the City Council on January 15, 2025. As of the date of this report, the fire has burned over 23,000 acres and is now 100% contained. According to CalFire, at least 6700 structures have been damaged or destroyed in the Palisades Fire.
During the period since January 8, the City has activated its Emergency Operations Center (EOC), with daily and nightly shifts covered by a combination of City staff, staff from other cities in the Los Angeles region through mutual aid requests, and consultants such as Tripepi Smith. The continued operation of the EOC will be necessary for a period of time to build a foundation stemming from EOC work to effectively transition to a recovery phase. The EOC is tasked with tracking, communicating, and addressing ongoing emergency conditions such as upcoming rain events and including regained access to power, gas, electricity, safe drinking water, internet, and reliable cell phone reception.
Tripepi Smith offers a comprehensive range of ad hoc communication services to the City of Malibu to support EOC operations and ensuring flexible and effective public engagement. These services include website creation, content creation, photography and video production, social media management, newsletter development, graphic design, speechwriting, press conference coordination, and marketing campaigns to ensure customized solutions tailored to the City's evolving needs. Tripepi Smith has assisted the city in launching a fire recovery website, social media management, press release coordination, and short term and long-term communication strategy building.
These services will be essential support for recovery efforts over the next six months. If additional services are needed after the six-month term, staff will return to the City Council at a future date for any additional requests prior to executing extended professional services agreements.
ATTACHMENTS: Agreement with Tripepi Smith
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of February 3, 2025 by and between the City of Malibu (hereinafter referred to as the "City"), and Tripepi Smith and Associates, Inc. (hereinafter referred to as "Consultant").
The City and the Consultant agree as follows:
R E C I T A L S
A. The City does not have the personnel able and/or available to perform the services required under this Agreement.
B. The City desires to contract out for consulting services for certain projects relating to on-call communication services.
C. The Consultant warrants to the City that it has the qualifications, experience and facilities to perform properly and timely the services under this Agreement.
D. The City desires to contract with the Consultant to perform the services as described in Exhibit A of this Agreement.
NOW, THEREFORE, the City and the Consultant agree as follows:
1.0 SCOPE OF THE CONSULTANT’S SERVICES. The Consultant agrees to provide the services and perform the tasks set forth in the Scope of Work, attached to and made part of this Agreement, except that, to the extent that any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The Scope of Work may be amended from time to time by way of a written directive from the City.
2.0 TERM OF AGREEMENT. This Agreement will become effective on February 3, 2025, and will remain in effect for a period of six months from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.
3.0 CITY AGENT. The City Manager, or his or her designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Consultant understands that the City Manager, or his or her designee, has the authority to provide that approval or authorization.
4.0 COMPENSATION FOR SERVICES. The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule. The cost of services shall not exceed a total amount not to exceed $200,000 for the term of the agreement. No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or his or her designee.
Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947 Agreement for Professional Services
Tripepi Smith and Associates, Inc.
4.1 The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month. The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
5.0 CONFLICT OF INTEREST. The Consultant represents that it presently has no interest and shall not acquire any interest, direct or indirect, in any real property located in the City which may be affected by the services to be performed by the Consultant under this Agreement.
The Consultant further represents that in performance of this Agreement, no person having any such interest shall be employed by it.
5.1 The Consultant represents that no City employee or official has a material financial interest in the Consultant’s business. During the term of this Agreement and/or as a result of being awarded this contract, the Consultant shall not offer, encourage or accept any financial interest in the Consultant’s business by any City employee or official.
5.2 If a portion of the Consultant’s services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within the City or with a City franchisee, the Consultant warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.
6.0 GENERAL TERMS AND CONDITIONS.
6.1 Termination. Either the City Manager or the Consultant may terminate this Agreement, without cause, by giving the other party ten (10) days written notice of such termination and the effective date thereof.
6.1.1 In the event of such termination, all finished or unfinished documents, reports, photographs, films, charts, data, studies, surveys, drawings, models, maps, or other documentation prepared by or in the possession of the Consultant under this Agreement shall be returned to the City. If the City terminates this Agreement without cause, the Consultant shall prepare and shall be entitled to receive compensation pursuant to a close-out bill for services rendered and fees incurred pursuant to this Agreement through the notice of termination. If the Consultant terminates this Agreement without cause, the Consultant shall be paid only for those services completed in a manner satisfactory to the City.
6.1.2 If the Consultant or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Consultant or the City violate any of the covenants, agreements, or stipulations of this Agreement, the Consultant or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. The Consultant shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder. Notwithstanding the foregoing, the Consultants shall not be relieved of Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947 Agreement for Professional Services
Tripepi Smith and Associates, Inc.
liability for damage sustained by virtue of any breach of this Agreement and any payments due under this Agreement may be withheld to off-set anticipated damages.
6.2 Non-Assignability. The Consultant shall not assign or transfer any interest in this Agreement without the express prior written consent of the City.
6.3 Non-Discrimination. The Consultant shall not discriminate as to race, creed, gender, color, national origin, or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances and codes of the Federal, State, County and City governments.
6.4 Insurance. The Consultant shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than one (1) day prior to beginning of performance under this Agreement. Consultant further agrees to comply with all provisions in the attached Exhibit B which is incorporated herein.
6.5 Indemnification.
To the fullest extent permitted by law, Consultant shall indemnify and hold harmless City and any and all of its officials, employees, agents, and/or volunteers (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs, and expenses, including attorney’s fees and costs, caused in whole or in part by the negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any agency or individual that Consultant shall bear the legal liability thereof) in the performance of services under this Agreement. Consultant’s duty to indemnify and hold harmless City shall not extend to the City’s sole or active negligence or willful misconduct.
6.5.1. Duty to defend:
In the event the Indemnified Parties, individually or collectively, are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the services encompassed by this Agreement, and upon demand by City, Consultant shall defend the Indemnified Parties at Consultant’s cost or at City’s option, to reimburse City for its costs of defense, including reasonable attorney’s fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by Consultant’s negligent acts, errors or omissions. Payment by City is not a condition precedent to enforcement of this provision. In the event of any dispute between Consultant and City, as to whether liability arises from the sole or active negligence or willful misconduct of the City or its officers, employees, or agents, Consultant will be obligated to pay for City’s defense until such time as a final judgment has been entered adjudicating the Indemnified Parties as solely or actively negligent or to have acted with willful misconduct.
Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees, and costs of litigation.
6.5 Indemnification.
To the fullest extent permitted by law, Consultant shall indemnify, defend, and hold harmless City and any and all of its officials, employees, agents, and volunteers (“Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, costs, and expenses, including Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947 Agreement for Professional Services
Tripepi Smith and Associates, Inc.
attorney’s fees and costs, to the extent they arise out of, pertain to or relate to the negligence, recklessness, or willful misconduct of the Consultant.
6.6 Compliance with Applicable Law. The Consultant and the City shall comply with all applicable laws, ordinances, and codes of the federal, state, county, and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.
6.7 Independent Contractor. This Agreement is by and between the City and the Consultant and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture, or association, as between the City and the Consultant.
6.7.1. The Consultant shall be an independent contractor and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of the Consultant, or any of the Consultant’s employees, except as herein set forth, and the Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that the Consultant is and shall at all times remain to the City a wholly independent contractor and the Consultant's obligations to the City are solely such as are prescribed by this Agreement.
6.8 Copyright. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of the Consultant.
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6.9 Legal Construction.
(a) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.
(b) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(c) The article and section, captions and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
(d) Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural.
6.10 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.
6.11 Final Payment Acceptance Constitutes Release. The acceptance by the Consultant of the final payment made under this Agreement shall operate as and be a release of the City from all claims and liabilities for compensation to the Consultant for anything done, furnished or relating to the Consultant’s work or services. Acceptance of payment shall be any negotiation of the City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by the City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, sub-consultants and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by the City for any defect or error in the work prepared by the Consultant, its employees, sub-consultants and agents.
6.12 Corrections. In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work which may be disclosed during the City’s review of the Consultant’s report or plans. Should the Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by the City, and the cost thereof shall be charged to the Consultant.
6.13 Files. All files of the Consultant pertaining to the City shall be and remain the property of the City. The Consultant will control the physical location of such files during the term of this Agreement and shall be entitled to retain copies of such files upon termination of this Agreement.
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6.14 Waiver; Remedies Cumulative. Failure by a party to insist upon the performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
6.15 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
6.16 Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
6.17 Attorneys' Fees. The parties hereto acknowledge and agree that each will bear his/her or its own costs, expenses and attorneys' fees arising out of and/or connected with the negotiation, drafting and execution of the Agreement, and all matters arising out of or connected therewith except that, in the event any action is brought by any party hereto to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which that party or those parties may be entitled.
6.18 Entire Agreement. This Agreement constitutes the whole agreement between the City and the Consultant, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City and the Consultant.
6.19 Notices. Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
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CITY: Joseph Toney CONSULTANT: Ryder Todd Smith
Acting City Manager Co-Founder & Principal
City of Malibu Tripepi Smith and Associates
23825 Stuart Ranch Road PO Box 52152
Malibu, CA 90265-4861 Irvine, CA 92619
TEL (310) 456-2489 x 226 TEL (626) 536-2173
FAX (310) 456-2760
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6.20 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
7.0 GENERAL TERMS AND CONDITIONS. (City and Consultant initials required at EITHER 7.1 or 7.2)
7.1 Disclosure Required. By their respective initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is a “consultant” for the purposes of the California Political Reform Act because Consultant’s duties would require him or her to make one or more of the governmental decisions set forth in Fair Political Practices Commission Regulation 18700.3(a) or otherwise serves in a staff capacity for which disclosure would otherwise be required were Consultant employed by the City. Consultant hereby acknowledges his or her assumingoffice, annual, and leaving-office financial reporting obligations under the California Political Reform Act and the City’s Conflict of Interest Code and agrees to comply with those obligations at his or her expense. Prior to consultant commencing services hereunder, the City’s Manager shall prepare and deliver to consultant a memorandum detailing the extent of Consultant’s disclosure obligations in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
7.2 Disclosure not Required. By their initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is not a “consultant” for the purpose of the California Political Reform Act because Consultant’s duties and responsibilities are not within the scope of the definition of consultant in Fair Political Practice Commission Regulation 18700.3(a) and is otherwise not serving in staff capacity in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
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This Agreement is executed on February 3, 2025, at Malibu, California, and effective as of February 3, 2025.
CONSULTANT:
_______________________________
By: Ryder Todd Smith, Co-Founder & Principal
CITY OF MALIBU:
___________________________________
JOSEPH TONEY, Acting City Manager
ATTEST:
___________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
___________________________________
TREVOR RUSIN, Interim City Attorney
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EXHIBIT A
SCOPE OF WORK
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ON-CALL COMMUNICATIONS
SERVICES
City of Malibu
December 4, 2024
By: Ryder Todd Smith
Co-founder & Principal
Tripepi Smith & Associates
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Table of Contents
COVER LETTER................................................................................3 PROJECT UNDERSTANDING..........................................................4 COST PROPOSAL ............................................................................7 Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947 Single Source Communications
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COVER LETTER
Thank you for the opportunity to expand Tripepi Smith’s partnership with the City of Malibu. This proposal offers all requested information, including Tripepi Smith’s understanding of your needs regarding on-call communications services.
Tripepi Smith is currently working with the City of Malibu on its Malibu Community Lands Project.
Through this engagement, we have gained valuable insights into the City’s external communication practices and the needs of the Malibu community. To that end, we are confident in our ability to effectively support your ongoing communication needs – we offer a wide range of expertise that we can leverage to support Malibu, including graphic design, website support, strategic communications, stock photography, videography, animation, public relations, social media management, editorial content and promotional materials.
Tripepi Smith anticipates that the project team currently working on the Malibu Community Lands Project will also be involved in this proposed engagement. We are confident that our dedication and proven track record continue to make us the right partner for Malibu. Thank you for considering us in this endeavor. We eagerly anticipate the chance to discuss our proposal in more detail.
Authorization
I affirm that I have the legal authorization to bind Tripepi Smith into agreements with the City of Malibu and to make the statements below on behalf of the firm. This proposal is valid for 60 days from the date of submission.
Regards,
Ryder Todd Smith
Co-Founder & President, Tripepi Smith & Associates, Inc.
[email protected] • (626) 536-2173 • PO Box 52152, Irvine, CA 92619 [email protected] is our preferred point of contact throughout the evaluation process.
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PROJECT UNDERSTANDING
Prospect Needs
The City of Malibu is seeking a partner to assist staff in reaching and engaging its community through sustained communications. Simultaneously, the City would benefit from a flexible arrangement that allows you to “ramp up” or “ramp down” services according to budget and priorities.
Tripepi Smith’s Approach
Tripepi Smith has experience in all facets of the City’s request. We’re confident that we can adapt to Malibu’s evolving needs.
Project Management
Tripepi Smith begins all engagements with a kickoff meeting with the client to: introduce personnel to one another, define Key Performance Indicators (metrics, goals and timelines); review project management processes; and ensure each stakeholder has a full understanding of their responsibilities.
Tripepi Smith primarily uses the following tools to manage projects:
• Google Workspace for email, creating real-time collaborative documents and instant messaging • Zoom or Google Meet for conference calls
• Sprout Social for social media management: posting and monitoring comments/messages • Meltwater for media intelligence and media relations
• Kantata for project/task management, internal project status updates and time entry These tools enable project managers to quickly determine a project’s budget status, review the schedule of tasks, send rapid notifications to the whole team if issues arise and, generally, sustain momentum on our efforts.
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Potential Services
Tripepi Smith is ready to provide ad hoc services to the City of Malibu. Our hourly rates for a full range of communication support services are included in the Cost Proposal section. Examples of these ad hoc requests include but are not limited to: photography services; video production services; newsletter development and assembly; graphic design support; writing speeches; writing Letters to the Editor; presentation preparation; media training sessions; drafting or reviewing policies and procedures; organizing press conferences; writing articles for Malibu’s websites or other publications; marketing campaigns; and other strategies, tactics and resources necessary to support your communications.
Below are details pertaining to potential service area needs identified by the City of Malibu.
Graphic Design
In today’s age of information saturation, it’s more important than ever for local governments to cut through the noise by designing materials that are attractive, interesting and reflective of the message.
Our diverse design team, from seasoned creative directors to detail-oriented technicians, illustrators, color experts and data visualization specialists, ensures we can tackle projects of every scale.
Moreover, we’ve honed an expertise in inspiring action among residents through daily collaboration with a wide range of public agencies. This translates to impactful visuals that grab attention, effectively communicate your message in a clear and engaging way and also inform the public. As public agency engagement specialists, accessibility is a cornerstone of every project that we undertake.
Our graphic design work spans:
• Logos, sub-logos, branding, campaigns
• Brochures, guides, newsletters, reports
• Animated visuals for social media,
video and web
• PDF, accessibility, ADA compliance
• PPT, presentations, meeting materials
• Stationery, business cards, templates
• Social media, web banners, email
• Infographics, financials, instructions
• Posters, banners, signage
• Conference materials, booths, swag
Media Intelligence
Our media intelligence services blend our in-house expertise with the advanced software of Meltwater, an enterprise-class comprehensive media monitoring solution that streamlines media monitoring, reporting, analytics and more for a number of benefits:
• Powerful Monitoring: Tracks everything being said about your agency online. • Stay Ahead of Crises: Identify and address potential issues before they snowball, protecting your reputation and minimizing disruption.
• Tailored to You: Receive insights tailored to your goals.
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• Smarter Decisions: Make informed choices based on data, not guesswork.
We understand that no two communities are the same. That's why we take a collaborative approach to tailor a solution that perfectly meets your needs. We’ll work closely with you to identify relevant keywords for tracking media coverage specific to your agency. You'll then begin to receive regular reports on media mentions, sentiment analysis, location data and top sources.
Please note that each variable is highly customizable, which can impact the scope of work and therefore the cost of this service. Based on our current assessment of your needs, we recommend our base package consisting of up to five queries, a monthly dashboard and weekly media mention digest sent via email.
Press Release Creation
Our team is seasoned in crafting compelling press releases and news articles, typically up to 500 words, to amplify Malibu's story and establish thought leadership. We tailor our work to your desired tone and direction, ensuring consistent execution. Collaboration with your staff might be necessary to ensure subject matter expertise and obtain quote approvals. You can lean on us to manage the entire content creation cycle, from crafting key messages and conducting interviews to drafting content and distributing it to your platforms or the media.
On-Call Strategic Communications Advice & Crisis Communications There may be cases where Malibu may need advice on stakeholder outreach, communication efforts and public engagement initiatives. Additionally, there may be instances when a serious, emergency issue arises, warranting collaboration among the proposed project team throughout the crisis management period. This includes responding to emergencies through coordinated communications efforts with key external stakeholders. Tripepi Smith will remain available 24/7 to support you through such instances, typically kicking discussions off in a virtual meeting, collaborating in a living workspace (as noted above) and emailing, texting or calling with updates as progress happens.
Social Media Management
• Content Creation: Social media content creation involves: planning, fact-checking, sourcing graphics, grammar checking and scheduling the post. Our team has experience producing content across Meta (Facebook and Instagram), Twitter/X, LinkedIn, Nextdoor and others. • Monitoring: Tripepi Smith will monitor Malibu’s social media site inboxes seven days a week for customer service opportunities, mainly responding to questions. When we identify an opportunity to respond, we will aim to do so within 24 hours of the comment post time or message receipt time.
We will occasionally require fact-checking and guidance from the City for more nuanced responses.
Additional: Our work also includes optimizing social media accounts to enhance performance and/or take advantage of useful features. "Boosted Posts" and other targeted advertisements are also helpful in disseminating information to community members. Tripepi Smith is fully capable of running and tracking these paid campaigns (fees to be agreed upon and paid by the City).
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Webpage Management
Tripepi Smith can supplement ongoing website content maintenance through content creation, content organization, copywriting and maintenance services. Our team has built websites from scratch as well as managed website content for dozens of public agencies. Our breadth of experience spans content management systems, including CivicPlus, Revize, WordPress, Vision, Civica and OpenCities, plus analytics software, such as Piwik and Google Analytics. We combine data on how constituents use the City website, technical knowhow and writing skills to inform how website content may be better organized.
COST PROPOSAL
We recommend a Time & Materials (T&M) model that allows you the flexibility to “ramp up” or “ramp down” efforts according to budget and priorities. Tripepi Smith is prepared to provide these services and other requests at the following approximate costs. We only begin work with your written consent.
Service/Deliverable Scope Estimated Cost
Graphic Design Up to 10 hours of graphic design work $1,245/month Media Intelligence Base package (5 queries, monthly dashboard and weekly media mention digest)
$525/month
Press Release Creation Researching and drafting one press release $580/release On-Call Strategic
Communications Advice &
Crisis Communications
1-hour phone calls $785/call
Social Media Management
& Monitoring
Development of up to 2 social media posts per
week and monitoring services
$320/week
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As-Needed Services
Tripepi Smith will apply the following standard hourly rates and related fees for any authorized asneeded (Time & Materials) work. Such work must be clearly authorized in writing before proceeding.
As the City currently has an open contract with Tripepi Smith through February 12, 2025, Tripepi Smith will continue using our current rates:
2023-24 Hourly Rates Hourly - Standard
Principal $350
Director $240
Art/Creative Director $240
Senior Business Analyst $190
Business Analyst $130
Junior Business Analyst $105
Senior Videographer/Animator $190
Senior Photographer/Graphic Designer $175
Photographer/Videographer $120
Graphic Designer $120
Junior Graphic Designer $105
Web Developer $195
Drone Operator $195
Council Chamber A/V Operator $105
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Beginning February 13, 2025, the following standard hourly rates and related fees will apply for the specified scope of work and any additional work desired:
2024-25 Hourly Rates Standard Reduced Retainer
Principal $370 $295
Director $255 $215
Art/Creative Director $255 $215
Senior Business Analyst $195 $165
Business Analyst $140 $115
Junior Business Analyst $115 $95
Senior Videographer/Animator $195 $165
Senior Photographer $170 $145
Videographer/Photographer $130 $110
Junior Videographer/Photographer $110 $95
Senior Graphic Designer $185 $155
Graphic Designer $130 $110
Junior Graphic Designer $110 $95
Web Developer $195 $175
Junior Web Developer $110 $95
Drone Operator $195 $170
Council Chamber A/V Operator $110 $95
Invoicing & Payment Terms
At Tripepi Smith, we bill on either a Retainer, Fixed Fee or Time & Materials basis, with each billing type following its own payment schedule. Regardless, terms are Net 30 days. • Fixed Fee work is billed upon defined milestones listed above. • Time & Materials work is billed in 15-minute increments (i.e. 4.0, 1.25, 6.5 or 0.75 hours) at the end of the month in which work is done.
• Retainer work is billed on the 15th of each month.
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Other Cost Information
Tripepi Smith has related service fees that may come up during our engagement that we want to tell you about.
Annual Increase
Tripepi Smith will increase the hourly rates and retainer fees for all resources by 5% or the national CPI index–whichever is higher–each year on the anniversary of the contract, starting on the first anniversary of any contract when the contract duration is longer than one year. Otherwise, new rates will be negotiated with each new contract.
Retainer Discount
When a client’s retainer exceeds $7,150 per month, they gain access to our reduced retainer rates.
Travel Costs
Travel costs must be pre-authorized and then will be reimbursed by the client for any requested travel to complete a requested scope of work. Travel costs may include airfare, lodging, car rentals and gas.
Additionally, when client work requires that we be onsite, we will invoice for a resource’s travel time at 50% of the resource’s hourly rate.
Equipment Costs
Tripepi Smith offers some services that require equipment, such as drone operations and video production. As such, in those cases, the following rates apply:
Half Day (Under 4 Hours) Full Day (4+ Hours)
Video $400 $600
Drone $500 – Flat Fee
Service Fees
Tripepi Smith prefers that clients pay service providers directly to avoid unnecessary administrative costs. You should also know, however, that we have no economic interest in service providers, unless otherwise specified in this proposal.
If a client asks Tripepi Smith to pay for a service provider bill, we will apply a 10% agency fee to the reimbursement expense. Typical service fees include, but are not limited to: print, mailing, digital advertising, media placements, voiceovers, translations and closed captions.
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Exclusive Access
Tripepi Smith has access to entities that may be relevant to our engagement. These partnerships allow Tripepi Smith to offer clients extra media reach or additional services at partner pricing.
Local Information Network of Knowledge (LINK): www.LocalInfoNetwork.com – A community forum for local government professionals in California to discover and share resources, policies, sample work products, best practices and more.
PublicCEO: www.PublicCEO.com – Digital news about public affairs, reaching over 17,500 California government executives through a daily podcast, job board, video podcast and more.
Civic Business Journal: www.CivicBusinessJournal.com – Digital interest stories on the people, companies and solutions that make local government in California more effective.
FlashVote: www.FlashVote.com – Statistically valid surveying that helps leaders make decisions. • Disclaimer: Tripepi Smith President Ryder Todd Smith is an investor in FlashVote.
Tripepi Smith Talent Solutions: www.TSTalentSolutions.com – A multifaceted recruitment consultancy service, combining local government access with communications to advance talent quests and build culture warriors.
Meltwater: www.TripepiSmith.com/Media-Intelligence – An enterprise-class, comprehensive media monitoring solution that is best combined with Tripepi Smith’s analytics team.
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EXHIBIT B
INSURANCE LANGUAGE
Without limiting Consultant’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Consultant shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
Workers’ Compensation Insurance. Consultant shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
OTHER PROVISIONS OR REQUIREMENTS
Proof of Insurance. Consultant shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance.
Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of Coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Consultant, their agents, representatives, employees, or subconsultants.
Primary/Noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947 Agreement for Professional Services
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limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.
City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of Contract Provisions (Non Estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant’s insurers are unwilling to provide such notice, then Consultant shall have the Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947 Agreement for Professional Services
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responsibility of notifying the City immediately in the event of Consultant’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
Additional Insured Status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Prohibition Of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
Separation of Insureds. A severability of interests’ provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass Through Clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant’s Subcontractor cannot comply with this requirement, which proof must be submitted to the City, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant’s requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor. Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to City for review.
City’s Right to Revise Specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days’ advance written notice of such change. If such a change results in substantial additional costs to the Consultant, the City and Consultant may renegotiate the Consultant’s compensation.
Self-Insured Retentions. Any self-insured retentions must be declared to and approved by the City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947 Agreement for Professional Services
Tripepi Smith and Associates, Inc.
administration, and defense expenses within the retention through confirmation from the underwriter.
Timely Notice Of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional Insurance. The consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
Docusign Envelope ID: 3E5ABE34-81E5-4406-981F-D020B4A95947
Agenda Item # 1.B.13.
Council Agenda Report
To: Mayor Stewart and the Honorable Members of the City Council Prepared by: Kate Manisco, Recreation Manager
Approved by: Joseph D. Toney, Acting City Manager
Date prepared: February 7, 2025 Meeting date: February 10, 2025 Subject: Professional Services Agreement with American Global Security, Inc.
RECOMMENDED ACTION: 1) Authorize the Mayor to execute a Professional Services Agreement with American Global Security, Inc. for security services at Malibu City Hall, City workshops, and rebuild recovery events; and 2) Authorize the City Manager or designee to amend the approved agreements if necessary to receive reimbursement from FEMA or any other governmental agency.
FISCAL IMPACT: Funding for these services was not included in the Adopted Budget for FY 2024-25. These services are requested in response to Local Emergency enacted on January 10, 2025, related to the Palisades Fire recovery efforts. The contract amount is not to exceed $100,000, and will be charged to account 102-3101-5100-00 (Palisades Fire Professional Services)
STRATEGIC PRIORITY: This item supports the Public Safety and day-to-day operations identified in the Adopted FY 2024-25 Strategic Priority Project List. Responding to disasters like the Palisades Fire and supporting community recovery is the City’s most immediate and top priority as part of the city's fundamental operations.
DISCUSSION: On January 7, 2025, a fire broke out in Pacific Palisades, north of Pacific Coast Highway (PCH) between Temescal Canyon Road and Palisades Drive. The fire spread west, affecting areas within the jurisdiction of the City of Los Angeles, the County of Los Angeles, and the City of Malibu.
As the City shifts from emergency response to community recovery, the City plans to provide meetings, programs, and workshops for Malibu residents. These meetings will require additional safety measures, including security personnel services.
City Council Meeting
02-10-25
Item
1.B.13.
Agenda Item # 1.B.13.
American Global Security (AGS) is the City’s current provider for security services at City parks, special events, and facility rentals. AGS has excellent has demonstrated outstanding professionalism, reliability, and an understanding of the City’s needs for security services.
Staff recommends that the Council authorize the Mayor to execute the Professional Services Agreement with American Global Security, Inc.
ATTACHMENTS: Professional Services Agreement with American Global Security, Inc.
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of February 10, 2025 by and between the City of Malibu, a California municipal corporation (hereinafter referred to as the "City"), and American Global Security, Inc. a California corporation (hereinafter referred to as "Consultant").
The City and the Consultant agree as follows:
R E C I T A L S
A. The City does not have the personnel able and/or available to perform the services required under this Agreement.
B. The City desires to contract out services to monitor Malibu City Hall as needed during regular business hours and public meetings. Additional security services include community workshops as needed.
C. The Consultant warrants to the City that it has the qualifications, experience and facilities to perform properly and timely the services under this Agreement.
D. The City desires to contract with the Consultant to perform the services as described in Exhibit A of this Agreement.
NOW, THEREFORE, the City and the Consultant agree as follows:
1.0 SCOPE OF THE CONSULTANT’S SERVICES. The Consultant agrees to provide the services and perform the tasks set forth in the Scope of Work, attached to and made part of this Agreement, except that, to the extent that any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The Scope of Work may be amended from time to time by way of a written directive from the City.
2.0 TERM OF AGREEMENT. This Agreement will become effective on February 10, 2025, and will remain in effect for a period of three years from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.
3.0 CITY AGENT. The City Manager, or his or her designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Consultant understands that the City Manager, or his or her designee, has the authority to provide that approval or authorization.
4.0 COMPENSATION FOR SERVICES. The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule. The cost of hourly services shall be $45.99 per security guard, overtime after eight hours, for a total amount not to exceed $100,000 annually.
No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or his or her designee.
Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3 Agreement for Professional Services
American Global Security, Inc.
4.1 The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month.
The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
5.0 CONFLICT OF INTEREST. The Consultant represents that it presently has no interest and shall not acquire any interest, direct or indirect, in any real property located in the City which may be affected by the services to be performed by the Consultant under this Agreement. The Consultant further represents that in performance of this Agreement, no person having any such interest shall be employed by it.
5.1 The Consultant represents that no City employee or official has a material financial interest in the Consultant’s business. During the term of this Agreement and/or as a result of being awarded this contract, the Consultant shall not offer, encourage or accept any financial interest in the Consultant’s business by any City employee or official.
5.2 If a portion of the Consultant’s services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within the City or with a City franchisee, the Consultant warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.
6.0 GENERAL TERMS AND CONDITIONS.
6.1 Termination. Either the City Manager or the Consultant may terminate this Agreement, without cause, by giving the other party ten (10) days written notice of such termination and the effective date thereof.
6.1.1 In the event of such termination, all finished or unfinished documents, reports, photographs, films, charts, data, studies, surveys, drawings, models, maps, or other documentation prepared by or in the possession of the Consultant under this Agreement shall be returned to the City. If the City terminates this Agreement without cause, the Consultant shall prepare and shall be entitled to receive compensation pursuant to a close-out bill for services rendered and fees incurred pursuant to this Agreement through the notice of termination.
If the Consultant terminates this Agreement without cause, the Consultant shall be paid only for those services completed in a manner satisfactory to the City.
6.1.2 If the Consultant or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Consultant or the City violate any of the covenants, agreements, or stipulations of this Agreement, the Consultant or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. The Consultant shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder. Notwithstanding the foregoing, the Consultants shall not be relieved of liability for damage sustained by virtue of any breach of this Agreement and any payments due under this Agreement may be withheld to off-set anticipated damages.
Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3 Agreement for Professional Services
American Global Security, Inc.
6.2 Non-Assignability. The Consultant shall not assign or transfer any interest in this Agreement without the express prior written consent of the City.
6.3 Non-Discrimination. The Consultant shall not discriminate as to race, creed, gender, color, national origin or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances and codes of the Federal, State, County and City governments.
6.4 Insurance. The Consultant shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than one (1) day prior to beginning of performance under this Agreement:
(a) Workers Compensation Insurance as required by law. The Consultant shall require all subcontractors similarly to provide such compensation insurance for their respective employees.
(b) Comprehensive general and automobile liability insurance protecting the Consultant in amounts not less than $1,000,000 for personal injury to any one person, $1,000,000 for injuries arising out of one occurrence, and $500,000 for property damages or a combined single limit of $1,000,000. Each such policy of insurance shall:
1) Be issued by a financially responsible insurance company or companies admitted and authorized to do business in the State of California or which is approved in writing by City.
2) Name and list as additional insured the City, its officers and employees.
3) Specify its acts as primary insurance.
4) Contain a clause substantially in the following words: "It is hereby understood and agreed that this policy shall not be canceled nor materially changed except upon thirty (30) days prior written notice to the City of such cancellation or material change."
5) Cover the operations of the Consultant pursuant to the terms of this Agreement.
6.5 Indemnification. Consultant shall indemnify, defend with counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers 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, regardless of City’s passive negligence, but excepting such loss or damage which is caused by the sole active negligence or willful misconduct of the City. Should City in its sole discretion find Consultant’s legal counsel unacceptable, then Consultant shall reimburse the City its costs of defense, including without Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3 Agreement for Professional Services
American Global Security, Inc.
limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation. The Consultant shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) covered by this indemnity obligation. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
6.6 Compliance with Applicable Law. The Consultant and the City shall comply with all applicable laws, ordinances and codes of the federal, state, county and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.
6.7 Independent Contractor. This Agreement is by and between the City and the Consultant and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture or association, as between the City and the Consultant.
6.7.1. The Consultant shall be an independent contractor, and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of the Consultant, or any of the Consultant’s employees, except as herein set forth, and the Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that the Consultant is and shall at all times remain to the City a wholly independent contractor and the Consultant's obligations to the City are solely such as are prescribed by this Agreement.
6.8 Copyright. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of the Consultant.
6.9 Legal Construction.
(a) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced and governed under the laws of the State of California.
(b) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(c) The article and section, captions and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
(d) Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3 Agreement for Professional Services
American Global Security, Inc.
singular shall refer to and include the plural.
6.10 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.
6.11 Final Payment Acceptance Constitutes Release. The acceptance by the Consultant of the final payment made under this Agreement shall operate as and be a release of the City from all claims and liabilities for compensation to the Consultant for anything done, furnished or relating to the Consultant’s work or services. Acceptance of payment shall be any negotiation of the City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by the City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, sub-consultants and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by the City for any defect or error in the work prepared by the Consultant, its employees, sub-consultants and agents.
6.12 Corrections. In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work which may be disclosed during the City’s review of the Consultant’s report or plans. Should the Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by the City, and the cost thereof shall be charged to the Consultant.
6.13 Files. All files of the Consultant pertaining to the City shall be and remain the property of the City. The Consultant will control the physical location of such files during the term of this Agreement and shall be entitled to retain copies of such files upon termination of this Agreement.
6.14 Waiver; Remedies Cumulative. Failure by a party to insist upon the performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
6.15 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
6.16 Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3 Agreement for Professional Services
American Global Security, Inc.
nevertheless continue in full force without being impaired or invalidated in any way.
6.17 Attorneys' Fees. The parties hereto acknowledge and agree that each will bear his/her or its own costs, expenses and attorneys' fees arising out of and/or connected with the negotiation, drafting and execution of the Agreement, and all matters arising out of or connected therewith except that, in the event any action is brought by any party hereto to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which that party or those parties may be entitled.
6.18 Entire Agreement. This Agreement constitutes the whole agreement between the City and the Consultant, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City and the Consultant.
6.19 Notices. Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
CITY: Joseph D. Toney CONSULTANT: Sulaiman Abdulwali
Acting City Manager Regional Vice President
City of Malibu American Global Security, Inc.
23825 Stuart Ranch Road 9420 Topanga Canyon Blvd
Malibu, CA 90265-4861 Ste 203
TEL (310) 456-2489 x 224 Chatsworth, CA 91311
FAX (310) 456-2760 TEL (818) 350-1000
6.20 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
7.0 GENERAL TERMS AND CONDITIONS. (City and Consultant initials required at EITHER 7.1 or 7.2)
7.1 Disclosure Required. By their respective initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is a “consultant” for the purposes of the California Political Reform Act because Consultant’s duties would require him or her to make one or more of the governmental decisions set forth in Fair Political Practices Commission Regulation 18700.3(a) or otherwise serves in a staff capacity for which disclosure would otherwise be required were Consultant employed by the City. Consultant hereby acknowledges Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3 Agreement for Professional Services
American Global Security, Inc.
his or her assuming-office, annual, and leaving-office financial reporting obligations under the California Political Reform Act and the City’s Conflict of Interest Code and agrees to comply with those obligations at his or her expense. Prior to consultant commencing services hereunder, the City’s Manager shall prepare and deliver to consultant a memorandum detailing the extent of Consultant’s disclosure obligations in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
7.2 Disclosure not Required. By their initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is not a “consultant” for the purpose of the California Political Reform Act because Consultant’s duties and responsibilities are not within the scope of the definition of consultant in Fair Political Practice Commission Regulation 18700.3(a) and is otherwise not serving in staff capacity in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
This Agreement is executed on _____________________, at Malibu, California, and effective as of February 3, 2025.
CITY OF MALIBU:
___________________________________
DOUG STEWART, Mayor
ATTEST:
___________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
CONSULTANT:
____________________________________
By: SULAIMAN ABDULWALI, Regional
Vice President
APPROVED AS TO FORM:
___________________________________
TREVOR RUSIN, Interim City Attorney
Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3 Scope of Work for Security Services
The location in this Agreement includes:
Malibu City Hall – 23825 Stuart Ranch Road Malibu, CA 90265 Regular Hours of Operation are Monday through Thursday, 7:30 AM to 5:30 PM, and Friday, 7:30 AM to 4:30 PM. City staff will make requests for meetings outside of regular business hours no less than 24 hours in advance.
While performing the work, AGS will work with the City of Malibu to monitor City facilities and meeting decorum. AGS will follow the City’s terms and conditions, including:
• Provide excellent communication with the City staff via email, telephone, and inperson meetings on an as-needed basis; • Personnel will effectively communicate and enforce facility rules, rules of decorum and the City’s municipal code;
• Personnel will contact the Los Angeles County Sheriff Department Lost Hills Division and request assistance when confronted by anyone refusing to leave the facility;
• Personnel will remain on-site until patrons leave the facility or Sheriff’s Deputies to arrive to remove patrons from the facility;
• The Contractor will have up to 24 hours to provide a written report to the Acting City Manager or his designee in the event of an incident, accident involving an injury, or any situation in which the Sheriff’s Deputies are called; • All employees must be at least eighteen (18) years of age and appropriately trained and qualified for the work assigned to them;
• AGS shall provide uniforms to the employees assigned to providing security services so that the Contractor’s employees are easily identified. Unforms shall include the company’s name or logo;
• Identification of all vehicles utilized in connection with the Agreement shall be visibly marked with company identification;
• The Contractor shall adequately secure any keys and codes provided by the City, and shall maintain a daily record of the employees performing security services; The City will occasionally require security services for additional public meetings and workshops. The Contractor must be able to provide services at various days and times within City limits. Other locations will be added and approved as needed by City staff.
Fees (Hourly Rate per Security Guard)
Hourly Rate $45.99
Overtime after 8 hours $68.99
Docusign Envelope ID: CDC05DA6-58BE-4FFB-ADB4-E02BD25D0CC3
Agenda Item # 1.B.14.
Council Agenda Report
To: Mayor Stewart and the Honorable Members of the City Council Prepared by: Yolanda Bundy, Environmental Sustainability Director
Approved by: Joseph D. Toney, Acting City Manager
Date prepared: February 7, 2025 Meeting date: February 10, 2025 Subject: Professional Services Agreements for Fire Recovery and Rebuild Consulting Services
RECOMMENDED ACTION: A) Authorize the Mayor to execute individual Professional Services Agreements for Fire Recovery and Rebuild Consulting Services from: 1) Cotton, Shires & Associates Inc. for Geotechnical, Coastal Engineering, and Environmental Health services; 2) Bureau Veritas for Building Safety services; 3) True North for Building Safety services; 4) CSG Consultants, Inc. for Building Safety services 5) Solid Waste Solutions, Inc. for Environmental and Solid Waste Management services; 6) Rincon Consultants, Inc. for Environmental and Storm Response services; 7) Kimley Horn and Associates for Public Works services; 8) Filippin Engineering for Public Works services; and 9) MNS Engineering, Inc. for Planning and Public Works Services; B) Authorize the City Manager or designee to amend any of the approved agreements if necessary to receive reimbursement from FEMA or any other governmental agency.
FISCAL IMPACT: Funding for these agreements was not included in the Adopted Budget for FY 2024-25 and will depend on the volume of applications received. An appropriation to Account Nos. 102-3101-5100-00 (Franklin Fire Professional Services) and 102-3102- 5100-00 (Palisades Fire Professional Services) will be necessary; however, the existence of the local emergency will potentially help qualify the City and its residents for reimbursement for certain disaster response expenditures.
STRATEGIC PRIORITY: This item is not identified in the Adopted FY 2024-25 Strategic Priority Project List; however, providing recovery and rebuild services after disasters is an immediate and top priority and these contracts are necessary to maintain the City's fundamental operations.
City Council Meeting
02-10-25
Item
1.B.14.
Agenda Item # 1.B.14.
DISCUSSION: On December 9, 2024, the Franklin Fire started in the Santa Monica Mountains on Malibu Canyon Road, south of Piuma Road. The fire, high winds, and power outages produced conditions of extreme danger. The Acting Director of Emergency Services (Acting City Manager) proclaimed the existence of a local emergency on December 10, 2024, and the City Council adopted Resolution No. 24-64 ratifying the emergency on December 16, 2024. The Franklin Fire burned over 4,000 acres and damaged surrounding hillsides.
Following the Franklin Fire, on January 7, 2025, the Palisades Fire started in or around the Pacific Palisades area. The Palisades Fire combined with a historic Santa Ana Wind event and power outages produced conditions of extreme peril to the safety of persons and property. The Acting Director of Emergency Services (Acting City Manager) proclaimed the existence of a local emergency on January 8, 2025. At the January 14, 2025, Special City Council Meeting, the City Council adopted Resolution No. 25-01 confirming and ratifying the existence of a local emergency due to the Palisades Fire.
It is currently estimated that there are over 600 properties in Malibu with destroyed structures because of fires, and many residents who have lost their homes have already expressed a desire to move forward with the rebuilding process as soon as possible.
Additionally, there is a concern that upcoming rains may trigger mudslides and debris flow, creating environmental concerns and danger for structures and motorists driving the City roads. To accommodate the resulting increase in permit applications, and to help residents move forward with the fire rebuild process while continuing to provide a high level of ongoing City services and making sure the community remains safe with robust environmental services and storm response, the City needs to augment its current staffing levels by utilizing contract services.
Due to the severity of the fires and the extent of both the recovery and rebuild processes, staff is creating a Fire Recovery and Rebuild Team (Rebuild Team) that will be dedicated to those pursuing the reconstruction of destroyed and/or damaged homes, commercial properties, and City infrastructure. The Rebuild Team will be staffed by City development departments, including Planning, Environmental Sustainability (ESD), and Public Works.
In brief, the process will consist of the following steps: 1) preliminary Planning review and approval, 2) agency review and approval, 3) Building plan check review, 4) permit issuance, and 5) construction and building inspection. Additionally, this team will monitor rainfall, landslides, and mud and debris flow areas during rain events while assisting with environmental services, such as monitoring trash and recycling services.
The Environmental Sustainability Department has three building inspectors, four permit technicians, and one Senior Plan Check Engineer to process planning and building permit applications. The Public Works Department has two Assistant Engineers, one Associate Engineer, and one Senior Civil Engineer.
Agenda Item # 1.B.14.
The City’s current staffing levels are not sufficient to handle the City’s typical volume of project applications and all the anticipated volume of fire rebuild applications. Therefore, utilizing contract services will be critical to Malibu’s recovery and rebuild success.
On January 13, 2025, City staff met with multiple specialized firms and existing consultants. Staff requested that these firms clearly identify their capabilities and experience in providing fire recovery and rebuild services. All firms that the City deemed appropriate have committed to identifying a specific contact and to meeting the City’s standards for quality service. Staff are confident that all firms have a clear understanding of the City’s needs and processes, can provide dedicated employees focused solely on the City, and will meet the City’s expedited development review goal of a 10 business day turnaround.
Because of the level of destruction in the City of the urgent need to rebuild, competitive bidding is impracticable, would cause unnecessary delay, and is unlikely to result in a lower price to the City. Contracts with the aforementioned consulting firms will provide the extra staff needed to deliver on the promise to rebuild the community. City staff will monitor the activity of the selected firms, provide City Council updates, and will be prepared to return to the City Council for additional resources if necessary.
It is recommended that the City Council authorize the Mayor to sign these agreements to meet operational demands posed by the disasters. Additional professional services agreements for planning services will be brought forward at the February 24, 2024, Regular meeting and will be in place before the Fire Rebuild Office opens in March.
ATTACHMENTS:
1. Professional Services Agreement with Cotton, Shires & Associates Inc.
2. Professional Services Agreement with Bureau Veritas
3. Professional Services Agreement with True North
4. Professional Services Agreement with CSG Consultants, Inc.
5. Professional Services Agreement with Solid Waste Solutions, Inc.
6. Professional Services Agreement with Rincon Consultants, Inc.
7. Professional Services Agreement with Kimley Horn and Associates
8. Professional Services Agreement with Filippin Engineering
9. Professional Services Agreement with MNS Engineering, Inc.
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of __________________, 2025 by and between the City of Malibu (hereinafter referred to as the "City"), and Bureau Veritas North America, Inc. (hereinafter referred to as "Consultant").
The City and the Consultant agree as follows:
R E C I T A L S
A. The City does not have the personnel able and/or available to perform the services required under this Agreement.
B. The City desires to contract out for consulting services for certain wildfire recovery projects relating to plan check consulting services.
C. The Consultant warrants to the City that it has the qualifications, experience and facilities to perform properly and timely the services under this Agreement.
D. The City desires to contract with the Consultant to perform the services as described in Exhibit A of this Agreement.
NOW, THEREFORE, the City and the Consultant agree as follows:
1.0 SCOPE OF THE CONSULTANT’S SERVICES. The Consultant agrees to provide the services and perform the tasks set forth in the Scope of Work, attached to and made part of this Agreement, except that, to the extent that any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The Scope of Work may be amended from time to time by way of a written directive from the City.
2.0 TERM OF AGREEMENT. This Agreement will become effective on January 10, 2025, and will remain in effect for a period of two (2) years from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein. Upon expiration of the Term, the Agreement will be automatically extended on a monthto-month basis unless either party terminates the Agreement upon at least ten (10) days written notice.
3.0 CITY AGENT. The City Manager, or his or her designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Consultant understands that the City Manager, or his or her designee, has the authority to provide that approval or authorization.
4.0 COMPENSATION FOR SERVICES. The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule (Exhibit B). No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or designee.
Agreement for Professional Services
Bureau Veritas North America