City Council and Authorities Concurrent
May 23, 2023

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 1 Rev. 09-28-18

EXHIBIT A

SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are set forth below. Throughout this Exhibit, Consultant and Contractor are used interchangeably.

I. BACKGROUND

The City has identified multiple City sites where asphalt concrete pavement and concrete paving require maintenance and/or rehabilitation. These sites include water wells, sanitary sewer pump stations, Convention Center, Central Library, City Hall, and others. The City intends to package the required maintenance and rehabilitation work into a single construction package for public works bidding. Funding for the work derives from four different sources.

Site Location Project Funding Source
Water Well 22-02 CIP Project 7005
Water Well 24
Water Well 29
De La Cruz Sanitary Sewer Pump Station
Northside Sanitary Sewer Pump Station
Rabello Sanitary Sewer Pump Station
Stadium Sanitary Sewer Pump Station
Westside Sanitary Sewer Pump Station
Central Library (concrete work) CIP Project 5055
Central Library (asphalt paving work) CIP Project 6123
City Hall Parking Lot
Convention Center Parking Lot CC Maintenance District

II. PROJECT OBJECTIVES AND INITIAL SCOPE

The table below identifies the primary initial objectives (initial scope) for each of the sites. The initial scope shall be reviewed, evaluated, adjusted based on site reviews & analysis, and refined in conjunction with the City to develop the final scope. It is expected that the CONSULTANT will develop design options for the City’s consideration.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 2 Rev. 09-28-18
Site Location Primary Site Objectives (Initial Scope)
Water Well 22-02 Remove & replace driveway between back of walk and entry gate. No detailed topographic
survey anticipated.

Water Well 24 Remove & replace driveway between back of walk and entry gate. No detailed topographic
survey anticipated.

Water Well 29 Remove & replace driveway between back of walk and entry gate. No detailed topographic
survey anticipated.

De La Cruz Sanitary Sewer
Pump Station
Crack seal & overlay or remove & replace site
asphalt concrete paving and driveway
(approximately 4,500 SF). No detailed
topographic survey anticipated.

Northside Sanitary Sewer
Pump Station
Repair (mill & fill) asphalt concrete paving
around wet well including cut-ins from prior
repair work. Asphalt concrete repair area is
approximately 6,200 SF. Pave around 6
electrical boxes, 1 large vault, 2 manhole
covers, 1 pipe penetration, & 2 bollards. No
work is anticipated for the asphalt pavement
entry road. No detailed topographic survey
anticipated.

Rabello Sanitary Sewer Pump
Station
Remove & replace asphalt concrete over
entire site area around the wet well and MCC
building. Remove & replace entry driveway
from base of slope to top of slope (entry to
pump station area). Total asphalt concrete
repair area is approximately 9,500 SF. Pave
around 5 electrical boxes, 1 gate, sewer
manhole cover, 1 valve can, 4 light poles, & 6
bollards.

Stadium Sanitary Sewer Pump
Station
Chip seal or seal coat asphalt concrete paving
(approximately 2,200 SF). No detailed
topographic survey anticipated.

Westside Sanitary Sewer
Pump Station
Remove & replace asphalt concrete paving
(approximately 2,500 SF). Re-grading of site
will be required due to drainage issues (site
subsidence has been observed). Pave around
1 manhole, 1 vault and 1 wet well cover.

Replace approximately 180 LF of on-site curb.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 3 Rev. 09-28-18
Site Location Primary Site Objectives (Initial Scope)
Central Library (concrete work) Remove & replace concrete paving at front of building due to subsidence (approximately
3,300 SF).

Central Library (asphalt paving
work)
Seal coat main asphalt concrete parking area
(approximately 20,500 SF).

Seal coat (with dig-outs) or thin mill & fill
parking area at east side of library
(approximately 7,500 SF).

City Hall Parking Lot Mill & Fill parking area and drive aisle at north- west corner of site (approximately 7,800 SF).

Convention Center Parking Lot Seal coat asphalt concrete paving at south- east and eastern edges of site (approximately
67,000 SF). Replace roadway striping.

Replace/upgrade existing parking space and
crosswalk striping with ADA-compliant striping.

Upgrade ADA signage. Install new ADA curb
ramps. Include bid alternate for seal coat of
asphalt concrete at pedestrian ramp at east
edge of site. No detailed topographic survey
anticipated for seal coat scope of work.

III. REQUIRED SERVICES—GENERAL

All design work shall be done in accordance with the City Standard Plans and Specifications, ADA Design Guidelines and Regulations, latest building and fire codes, Department of Transportation Standard Specifications and Details (as applicable to the work), and other applicable codes and standards recommended by the Consultant.

Consultant shall:
1) Perform thorough site investigations to ascertain existing conditions and the likely causes for deterioration of the site or site facilities. Evaluate and determine pavement condition and conditions that impact site pavement (e.g. utility trenches, utility vaults, manholes, structures, pipelines, etc.) 2) Review as-built information (as available) to understand history of previous site construction and improvements.
3) Perform field review and investigation of site frontage to determine compliance with current City standards for driveways, curb & gutter, sidewalks, and ADA regulations. Recommend replacement of existing facilities as necessary to conform to current standards / regulations.
4) Develop design options/alternatives for
repair/rehabilitation/restoration/replacement of site pavements and ancillary facilities (e.g. drainage, curbs, gutters, sidewalks, ramps, striping, etc.).

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 4 Rev. 09-28-18
5) Evaluate each site with respect to feasibility of implementing green infrastructure elements. Provide recommendations to City for each site. 6) Develop plans, specifications and estimates at 75%, 100%, and bid document levels of completion.
7) Provide support to CITY in obtaining building and fire permits. 8) Provide support to CITY during bid & award, construction, and post-construction phases of the Project.
9) Perform project management activities to ensure timely and on-budget completion of services.
10) For the concrete replacement work at the Central Library, include in the design drawings two pullboxes and interconnecting spare conduits for future use. The conduits shall be sized to accommodate future EV charging stations at the south side of the library. One pullbox shall be located adjacent to the building wall (probably in a landscape area) nearest the adjacent interior electrical room. No building wall penetrations will be included in the drawings. The other pullbox shall be located on the south edge of the new concrete adjacent to the curb.

IV. REQUIRED SERVICES—SPECIFIC

CONSULTANT shall perform the specific services as indicated below.

PROJECT MANAGEMENT

CONSULTANT shall:

A. Manage its team and overall project activities consistent with the direction from CITY in order to meet the project schedule and budget. Manage sub-consultants, maintain schedule and budget, anticipate and mitigate potential design issues and delays and coordinate and update the City on the overall progress of the Project.

B. Any field work that involves subsurface excavation and/or coring, consultant is required to submit plan of work to the City for review and approval prior to proceeding.

C. Organize and attend project meetings with the City to discuss project progress, decisions, and direction and to coordinate activities. Meetings shall be held at key project milestones and shall include, but are not limited to:

1.C.1 Kick-off Meeting

1.C.2 Preliminary Engineering/Evaluation

1.C.3 7 5% Design Review Meeting

1.C.4 Punch list/Project acceptance Meeting

D. Coordinate with CITY, design team members, consultants, utility companies, other government agencies, and other affected parties as required throughout Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 5 Rev. 09-28-18
the duration of the project as well as the Quality Assurance/Quality Control (QA/QC) activities for project deliverables.

E. Prepare, monitor, and update progress schedule in MS Project format beginning at the kickoff meeting and ending at contract award for the last submittal package. Schedule shall show significant milestones for the project.

CONSULTANT shall notify CITY if there are delays or potential delays in any phase of the project. In such cases, CONSULTANT shall make up the schedule in subsequent phases of the project or provide information to CITY substantiating a request for time extension (which may not be approved). The schedule shall be maintained at all times and shall be updated each time progress and milestones are achieved and/or changed.

F. Meetings: Meetings shall be budgeted for and invoiced under each respective Task or activity requiring a meeting and not as project management. Preparation for meetings shall be considered as included in the Task or activity for which the meeting is involved. A kick -off meeting shall be conducted with designated CITY staff prior to beginning work to review anticipated Tasks and schedule, review available information and needs, and address any outstanding questions regarding the project moving forward raised by CITY or CONSULTANT. During the course of Services while there is active work on the PROJECT, CONSULTANT shall schedule and attend brief bi -weekly (every other week) conference calls with CITY. The purpose of the bi-weekly conference calls will be to keep CITY appraised on the PROJECT's progress and address any issues that may arise during the course of Services.

G. Provide monthly progress reports.

H. Stakeholder Coordination: CONSULTANT shall coordinate with project stakeholders as needed to inform each stakeholder of the project work and incorporate any necessary accommodations into the final submittal documents.

I. Provide Review/Plan Check Log (Response Matrix) summarizing comments received from various City Departments/Divisions and agencies. Response Matrix shall include, but not be limited to, commenting department/division or agency, comments, response to comments, action items, and person responsible for follow up. Consultant shall be responsible for resolving comments from each commenter and shall identify to City any comments that cannot be resolved to have final discussion and resolution. Submit Response Matrix in electronic format with each route of plan check submittal.

J. Conduct QC reviews in accordance with its QA Program guidelines.

CONSULTANT shall provide a copy of its QA Program guidelines and shall provide a QC report at the end of each Task. Time spent for QA -QC reviews for specific d eliverables shall be budgeted and billed under each respective task requiring QA-QC review and not as Project Management.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 6 Rev. 09-28-18

K. Invoicing and Contract Administration: CONSULTANT administrative staff time spent preparing invoices for Services complete shall be considered as included in the overhead of the CONSULTANT’s basic hourly rates and shall not be billed.

Additionally, addressing administrative issues regarding the professional Services agreement, such as preparing additional Services requests or budget modifications, shall also be considered as included in the overhead of the CONSULTANT’s basic hourly rates and shall not be billed.

L. Payment for all responsibilities related to Project Management shall be included in the various tasks identified in Exhibit B, Schedule of Fees.

Deliverables:

1. Progress schedules in MS Project format (submitted electronically as an 11” x 17” pdf file and in native MS Project format).

2. QA Program guidelines and QC reports for each Task (in pdf file).

3. Meeting agendas, preparation materials, and meeting minutes for each project meeting (in pdf file).

4. Monthly progress reports and invoices (in pdf file).

Preliminary Engineering/Evaluation (Task 0)

1.1 Attend Project Kick -Off Meeting and provide meeting minutes for the City to review and approve.

1.2 Perform all necessary assessment and investigations to determine the existing conditions and propose recommendations to City for the improvements. Contact all regulatory agencies that will affect the proposed works to determine applicable codes and ordinances.

1.3 Review all necessary as -builts to understanding existing condition in order to prevent utility conflicts and changes during construction.

1.4 Meet with City staff to obtain additional information and input as needed. Provide all necessary design services, including but not limited to landscape, civil, structural, and electrical design.

1.5 Perform needed topographic survey for existing site s, plans layout, and final approved improvements (from the evaluation/recommendation) for use as base layout for the design plans.

1.6 CITY maintains a list of known utility operators in CITY. CONSULTANT shall prepare a Notice of Intent to Cons truct (NOI) on CITY’s standard NOI form and submit it to the known utility operators in order to gather records for existin g utilities. Location map exhibits will be required to be submitted as part of the Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 7 Rev. 09-28-18
NOI. CONSULTANT shall provide CITY a draft of the NOI prior to sending it to the utility, maintain log of all NOI sent and received, and provide CITY all information received from the NOI. The purpose of the collection of utility information is to identify ownership of surface features that will be impacted by the work, and also to identify if there are any high- risk utilities within the project limits that may be impacted by the work.

All data collected from the field shall be provided to the City for records. Prior to performing data collection, CONSULTANT shall provide a work plan to the City for review and approval. No work shall be performed unless authorized by the City.

Task Deliverables (Preliminary Engineering/Evaluation):

1. CONSULTANT recommendations for scope of work, scope of work adjustment s, design options, and green infrastructure feasibility.

Task 1.0: 75% Construction Documents

Plans shall be drawn to scale, on D-size (24” X 36”) sheets, at an engineering scale up to 1” = 40’ maximum, conforming to City’s Design Criteria. Plans are to be drawn by AutoCAD 2021 or earlier versions, using City-provided standard AutoCAD template with background layout from Consultant’s topographic survey.

1.1 Prepare 75% construction documents and supporting information for the City’s review. Consultants shall follow City’s Design Criteria and plan format to prepare 75% Plans and supporting information for the City’s review. Plans with details of major design components as necessary such as: Site Plan, Existing Condition, Proposed Improvement, Traffic Control Plan, Details, and other pertinent information for the City to review and provide comments.

75% Plans shall include all existing utilities on- site and immediate surrounding off-site areas. Pertinent background information as relating to proposed improvements such as, but not be limited to, layouts, fence, gate, pedestrian pathway, property lines, site entrance/exist driveway, adjacent streets shall be shown.

Provide technical specifications.

1.2 Prepare project estimate that includes an itemized list of bid items. The project estimate shall be accurate and prepared based upon current construction pricing and escalated to mid- point of construction. CONSULTANT shall review recent bids, and contact vendors, suppliers, and contractors as necessary to develop an accurate cost estimate. The CONSULTANT shall provide the assumptions and supporting documents used to prepare the estimate. The project estimate shall consider the following factors:

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 8 Rev. 09-28-18

1. Recent similar Projects bid in the Bay Area, especially in the South Bay.

2. Current economic trends.

3. When the Project will be bid.

4. When construction will occur.

5. The risks that contractors need to consider for the Project.

1.3 Develop project schedule. Schedule shall include all needed times to complete all tasks, including City’s review times, permitting process, and construction period.

1.4 CITY maintains a list of known utility operators in CITY. CONSULTANT shall prepare a Notice of Intent to Construct (NOI) on CITY’s standard NOI form and submit it to the known utility operators in order to gather records for existing utilities. Location map exhibits will be required to be submitted as part of the NOI. CONSULTANT shall provide CITY a draft of the NOI prior to sending it to the utility, maintain log of all NOI sent and received, and provide CITY all information received from the NOI. The purpose of the collection of utility information is to identify ownership of surface features that will be impacted by the work, and also to identify if there are any high- risk utilities within the project limits that may be impacted by the work.

All data collected from the field shall be provided to the City for records. Prior to performing data collection, CONSULTANT shall provide a work plan to the City for review and approval. No work shall be performed unless authorized by the City.

1.5 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.

1.6 Conduct a quality control (QC) review of design documents (Plans, Specifications, and Engineer’s Cost Estimates).

1.7 CITY will circulate the submittal package to internal CITY departments for review and comments. CONSULTANT shall be responsible for submitting the package to external stakeholders if required. CONSULTANT shall prepare written responses to all written comments received. All redlined drawings shall be returned with CONSULTANT’s response on the redlined drawings.

1.8 CONSULTANT shall be responsib le for resolving comments from each commenter and shall identify to CITY any comments that cannot be resolved.

CONSULTANT shall conduct a 75% comments review meeting with CITY to discuss comments on the submittal package, to identify any significant design issues, and gain concurrence as to how the submittal shall be revised as appropriate to incorporate CITY’s comments.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 9 Rev. 09-28-18

1.9 CONSULTANT is required to coordinate potential utility conflicts . All potential utility conflicts shall be discussed with the City and coordinated with each respective utility agency to clear all conflicts. The project plan shall clear ly identify all existing utilities that will be and potentially be impacted during construction.

Task 1 Deliverables – Electronic and hard copy format:

1. 7 5% Plans – One (1) PDF and one (1) AutoCAD file.

2. 7 5% Engineering cost estimate – One (1) PDF and one (1) Microsoft Excel file.

3. Project schedule – One (1) PDF and one (1) Microsoft Project file.

4. Quality control checklist for 75% PS&E submittal – One (1) PDF and one (1) Microsoft Word or Excel file.

5. Miscellaneous Project information (as requested).

6. Meeting minutes – One (1) PDF and one (1) Microsoft Word file.

7. Field notes, photographs, and Underground Service Alert (USA) information.

8. Notice of Intent form(s)

Task 2: 100% Construction Documents

Based on City’s comments and direction on the 75% PS&E, Consultant shall revise the 75% PS&E to produce the 100% PS&E. Consultant shall:

2.1 Prepare 100% construction documents and supporting documents.

2.1.1 Phase percentage statement such as “100% Plans. Not for Construction” shall be removed from the 100% Plans and each sheet of the plans set shall be stamped and signed by the Consultant’s Engineer of appropriate discipline.

2.1.2 Specifications shall be stamped and signed (on Document 00030 – Seal) by Consultant’s Project Engineer.

2.1.2.1 Specifications shall include any required modifications to City Standard Specifications to suit Project. Modified sections include, but are not necessarily limited to, general information, summary of work, measurement and payment
for bid items, permitting and agency regulatory requirements, etc.

2.1.2.2 Consultant shall provide required information to the City’s Project Specific Specification Book (Divisions 0, 1, and 2). Required information from Consul tant for City’s front- end specifications are, but are not necessarily limited to , the following:

2.1.2.2.1 Description of work

2.1.2.2.2 Type of Contractor’s License required

2.1.2.2.3 Construction Schedule
Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 10 Rev. 09-28-18

2.1.2.2.4 Bid Schedule

2.1.2.2.5 Requirements for Contractor’s Statement of
Qualifications (e.g. experience requirements for
similar work and contract values)

2.1.2.2.6 Identification of any changes to the City’s standard specifications that are required.

2.2 Prepare an updated Engineering Cost Estimate with backup and justification for unit pricing.

2.3 Prepare an updated Project Schedule.

2.4 Provide Documents for City’s PS&E approval process. Required documents are, but not be limited to, engineer’s estimate using the schedule of quantities format, recent similar project bid summaries to validate engineer’s estimate, consultant Peer Review Certification, consultant Lessons Learned from other similar projects that were applied to this Project.

2.5 Conduct a quality control (QC) review of design documents (Plans, Specifications, and Engineer’s Cost Estimate).

2.6 100% PS&E shall be Peer reviewed and Certification of Peer Review shall be submitted with the 100% Submittal.

A statement to indicate Peer Review has been performed and signature of the Engineer who performed it shall be added to the Plans Cover Sheet.

Certification of Peer Review: The following paragraph shall be put on the company letter head, dated, and signed by the Peer Review Engineer. “The undersigned hereby certifies that a professional peer review of these plans and the required designs was conducted by me, a professional engineer with expertise and experience in the appropriate fields of engineering equal to or greater than the Engineer of Record, and that appropriate corrections have been made.”

2.7 Prepare and submit Special Inspection Form for the Project.

2.8 Meet with City staff as needed to review City comments on 100% submittal and gain concurrence as to how the documents will be revised as appropriate to incorporate City comments.

2.9 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.

2.10 Provide written response matrix to City’s comments on 75% PS&E.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 11 Rev. 09-28-18

2.11 Provide list of potential bidders including company name, email address, contact number, and address of business.

2.12 The City shall review the 100% Design Submittal Package (Plans, Specifications, Engineer’s cost estimate, and Project bid and construction schedule) to ensure that all comments and issues have been rectified. After the 100% Design Submittal Package has been deemed acceptable, City staff will then submit the 100% Design Submittal Package to the Building Division and Fire Department for review and approval.

Task 2 Deliverables – Electronic and hard copy format:

1. 100% Plans – One (1) PDF and one (1) AutoCAD file.

2. 100% Specifications – one (1) PDF and one (1) Microsoft Word file.

3. Structural Calculations – One (1) PDF.

4. Certification of Peer Review – One (1) PDF.

5. 100% Engineering Cost Estimate – One (1) PDF and one (1) Microsoft Excel file.

6. Updated Project Schedule – One (1) PDF and one (1) Microsoft Project file.

7. Special Inspection Form – One (1) PDF.

8. Quality control checklist for 100% design submittal.

9. Written response matrix – One (1) PDF and one (1) Microsoft Word or Excel file

Task 3: Bid Documents (P&S)

The Bid Documents shall incorporate all comments from the City including comments from the Building Division (for building permit), Fire Department (for Fire Permit, if applicable) Public Works, Water & Sewer , SVP, and any other stakeholders that are involved in the Project. Based on City’s comments and direction on the 100% PS&E, Consultant shall revise the 100% PS&E to produce the Bid Documents. Consultant shall:

3.1 Incorporate City review comments of 100% PS&E into Bid Documents.

3.2 Incorporate permit issuers’ comments (from Building Division and Fire Department) into P&S and coordinate with permitting departments and agencies to obtain acceptance of permit application package.

3.3 Prepare Bid Documents (P&S).

3.3.1 Bid Plans shall be wet stamped and signed by the Consultant’s Engineer of appropriate discipline. Plans shall be drawn to scale and plotted onto D - size sheets.

3.3.2 Bid Specifications shall be wet stamped and signed (on Document 00030 – Seal) by Consultant’s Project Engineer.

3.3.3 Final Engineer’s Estimate
Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 12 Rev. 09-28-18

3.3.4 Special Inspection Form required by the Building Division

3.3.5 Any other forms that are required by the Building Division and Fire Department in order to obtain applicable permits from those teams.

3.4 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.

Task 3 Deliverables – Electronic and hard copy format:

1. Bid Plans – One (1) PDF of wet-signed/stamped, D-size and one (1) AutoCAD file.

2. Bid Specifications – One (1) PDF of wet-signed/stamped, A-size and one (1) Word file.

3. Written response matrix – One (1) PDF and one (1) Microsoft Word or Excel file.

4. Quality control checklist for bit set submittal.

5. Written response matrix – One (1) PDF and one (1) Microsoft Word or Excel file.

6. Special Inspection Form

Task 4: Bid and Award Phase Assistance

Consultant shall provide assistance to the City during the bidding and award phase, answer questions from bidders, help and prepare exhibits for addenda when necessary, assist the City in evaluation of bids received, and provide a written recommendation for the award of contract, when requested.

Consultant shall:

4.1 Attend and conduct one Pre-Bid Conference/Site Visit.

4.2 Assist the City with responses to bidder’s inquiries through the City’s Project Manager.

4.3 Assist the City with addenda to the construction documents as needed to respond to bidder’s inquiries and clarify the intent of bid documents.

4.4 Assist the City in evaluating bids (if required by the City).

4.5 Within fourteen (14) days from the bid opening date, prepare and submit a conformed set of contract documents (Plans and Specifications) incorporating any and all addenda (if needed).

Task 4 Deliverables – Electronic and hard copy format:

1. Written response to bidder’s inquiries – Signed PDF.

2. Support information for addenda – Signed PDF.

3. Written recommendation letter to award of contract for the Project – Signed PDF.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 13 Rev. 09-28-18

4. Conformed Set (if needed) – One (1) PDF of Plans and Specifications, one (1) AutoCAD file of Plans, and one (1) Microsoft Word file of Specifications.

Task 5: Construction Phase Assistance

Consultant’s responsibility to provide basic services for the construction phase under this Agreement commences with the “Notice to Proceed” (NTP) of the contract for construction and terminates on the date the City approves the certificate of completion of the Project.

5.1 Consultant will assist the City in providing administration of the contract for construction. Duties, responsibilities and limitation of authority of Consultant shall not be restricted, modified, or extended without written agreement of the City.

5.2 Consultant shall attend the Pre-construction meeting.

5.3 Consultant shall visit the site three times during construction. During these site visits, Consultant shall attend job progress meetings, pre- submittal meetings, pre-installation meeting, and other meetings as required by the City. Consultant’s structural, civil, and electrical sub-consultants shall visit the site as required when work related to their discipline is in progress.

5.4 Consultant shall make construction observation visits throughout the construction phase. Consultant shall issue an observation report after each visit. Assume up to three (3) meetings.

5.5 In addition to the construction observation visits, Consultant shall review technical submittals, shop drawings, product data, product samples, and product warranties from the contractor for conformance with the specifications and drawings. The Consultant’s action shall be taken with such reasonable promptness so as to cause no delay in the work, while allowing sufficient time in Consultant’s judgment to permit adequate review. The Consultant will be allowed a maximum of seven (7) calendar days for review of submittals. Consultant’s review shall not constitute review of safety precautions or, unless otherwise specifically stated by Consultant, of construction means, methods, techniques, sequences or procedures. Consultant’s review of specific items shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the contract documents, Consultant shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the contract document.

5.6 Consultant shall respond to Contractor’s Request for Information (RFI) and Request for Substitution (RFS). Interpretations and decisions of the Consultant shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. Consultant shall be Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 14 Rev. 09-28-18
allowed a maximum of seven (7) calendar days to respond to RFIs and RFSs that impact the Project schedule or a maximum of fourteen (14) calendar days to respond to RFIs and RFSs that do not impact the Project schedule.

5.7 The Consultant shall prepare the Scope of Work, including sketches, for Field Instructions issued to the Contractor. When requested by the City, Consultant shall review Change Order (CO) pricing and provide written responses for the City’s review and finalizing said COs

Task 5 Deliverables – Electronic and hard copy format:

1. Signed PDFs of Reviewed Contractor Submittals, Shop Drawings, RFIs, RFSs, and Field Instructions.

2. Signed PDFs of COs’ recommendations.

3. Signed PDFs of Field reports by Consultant and sub-consultants.

Task 6: Post-Construction Phase

6.1 When requested by the City, Consultant shall conduct reviews to assist the City to determine the date or dates of Substantial Completion and the date of Final Completion. Consultant’s decisions with City approval on matters relating to aesthetic effect may be final if consistent with the intent expressed in the Contract Documents.

6.2 Upon request by Contractor, in accordance with contract Specifications, for Substantial Completion and later Final Completion, Consultant shall assist Cit y in determining if the Project is ready for the stage of completion requested by the Contractor. Consultant shall provide City with a written recommendation.

6.3 Consultant shall perform a walk -through of the Project site, review Contractor Punch List, and provide written response with status and action of items on the Punch List. Consultant shall attend final walk -through of the Project site with the City, verify Punch List completion, and provide written response with recommendation regarding Project acceptance and close-out.

6.4 Consultant shall review Contractor-supplied Operation and Maintenance manuals and Warranties to determine their completeness and compliance with Construction Contract and provide written recommendation for acceptance.

6.5 Consultant shall at completion of the Project provide City with one set of reproducible Record Drawings (RDs) on good quality bond paper that reflect the changes to the work during construction based upon marked up prints, drawings and other data furnished by the Contractor and City. Consultant shall use the original Title sheet for the RDs set. If Consultant adds additional sheets to the Plans, these shall be properly numbered, properly referenced on other affected drawings and included in the drawing index. Consultant may, at its own expens e, prepare and retain a copy of each drawing for its permanent file.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 15 Rev. 09-28-18

6.6 Provide a complete set of the Record Drawings and all X -ref files “bound,” including other associated fonts, plot style files on AutoCAD, including electronic copies in PDF format. CONS ULTANT may, at its own expense, prepare and retain a copy of each drawing for its permanent file.

Task 6 Deliverables – Electronic and hard copy format:

1. Substantial Completion/Final Completion recommendations and Reviewed Punch List – One (1) signed PDF.

2. Record Drawings – One (1) PDFs and one (1) AutoCAD files on CD/DVD

V. RESPONSIBILITIES OF CITY

CITY will provide the following information and support regarding the project as available and applicable:

• Record drawings (as available)
• CITY’s Standard Details, Specifications, Benchmark, and Design Criteria. • Storm Drain (SD), Sanitary Sewer (SS), Electric, Fiber, Water and Recycled Water Block Book Maps (as available).
• Geographic Information System (GIS) data including land parcels, street centerlines, City sanitary sewers, City storm drains, and aerial photographic tiles
• Payment of permit application fees with other internal departments, if required.
• Filing exemption under the California Environmental Quality Act, if applicable.

Besides the above, the City will work closely with the consultant to provide any other data or records, as available and necessary for the work involved.

Design Professional Agreement with CSG Consultants, Inc./Exhibit A-Scope of Services Page 16 Rev. 09-28-18

VI. ANTICIPATED PROJECT MILESTONE SCHEDULE

The City expects the work on the project to follow the timeframes indicated below.

Activity Duration
Preliminary Engineering / Evaluation Task
Complete with any needed meetings with City for
input and completion of consultant
recommendations for scope of work adjustments,
design options, and green infrastructure feasibility
5 ½ weeks
75% Construction Documents (not including City
review time) 8 weeks
100% Construction Documents (not including City
review time) 6 weeks
Bid Documents 2 weeks
Provide clarifications and assistance during the
bidding phase to satisfactorily answer any
questions from prospective bidders
2-day response time
Prepare Record Drawings 2 weeks
Design Professional Agreement with CSG Consultants, Inc./Exhibit B-Schedule of Fees Page 1 Rev. 09-28-18

EXHIBIT B

SCHEDULE OF FEES

Throughout this Exhibit, Consultant and Contractor are used interchangeably.

I. GENERAL PAYMENT

The total payment to the Consultant for Basic Services, as stated in Exhibit A, shall not exceed $255,400. The amount billed to City for pre-approved Additional Services shall not exceed the sum of $38,310. In no event shall the amount billed to City by Consultant for services under this Agreement exceed $293,710, subject to budget appropriations.

Billing shall be on a monthly basis based on the services performed for each task.

Consultant shall, during the term of this Agreement, invoice the City for hour s and dollars of work completed under this Agreement. The invoice shall describe the Task invoiced, percent complete of the Task, time and materials expended by Task, and total amount during the invoice period. The invoice shall also show the total to be paid for the invoice period. All invoices shall provide a written description of work performed during the invoice period, deliverables completed, and progress to date on Tasks being invoiced in order to support the amount invoiced.

II. BASIC SERVICES

The total payment to Consultant for all work necessary for performing all Tasks, as stated in Exhibit A, shall be in proportion to services rendered and on a time and materials not-to-exceed basis.

The Consultant fee allocated to each Task, as shown below, shall be the Consultant’s full compensation for all the Consultant services required by this Agreement, as directed by the City, and no additional compensation shall be allowed. City may reallocate budget from Tasks to other Tasks or to or from additional services. The Consultant shall bill time and materials spent on a Task under the appropriate Task and will not be allowed to charge to future or inactive tasks unless approved in writing by City. The Consultant shall provide a summary of dates and hours charged per date by individual, and individual timesheets, if requested by City. The hours and amounts charged to each Task shall be proportionate to the services rendered.

Tasks denoted as Optional Tasks, as stated in Exhibit A, require pre-approval in writing by CITY prior to performing any services under the task. Payment for any Optional Task is allowed only if written authorization is given by the City in advance of the work to be performed. Fees for Optional Tasks shall be considered as Basic Services.

Design Professional Agreement with CSG Consultants, Inc./Exhibit B-Schedule of Fees Page 2 Rev. 09-28-18
The total amount of all the Tasks is a not -to-exceed amount. Figures in the following table include all subconsultant costs, miscellaneous expenses, and administrative markups.

CONSULTANT shall invoice time and expenses according to the Tasks identified in the table below.

Description Amount
Task 0 Preliminary Engineering / Evaluation $60,290
Task 1 75% Construction Documents $66,870
Task 2 100% Construction Documents $54,250
Task 3 Bid Documents $12,880
Task 4 Bid and Award Phase $ 3,560
Task 5 Construction Phase $18,970
Task 6 Post-Construction Phase $ 4,660
Subtotal $221,480
Optional
Task A
Bid Alternate for Pedestrian Ramp at
Convention Center
$ 9,920
Optional
Task B
Green Infrastructure Implementation $24,000
Total $255,400

In no event shall the amount billed to City by Consultant for Basic Services under this Agreement exceed two hundred fifty-five thousand four hundred dollars ($255,400), subject to budget appropriations.

III. MISCELLANEOUS EXPENSES
Miscellaneous Expenses including, but necessarily limited to, duplication costs, courier fees, and mailing fees shall not be paid or reimbursed separately. The cost for all miscellaneous expenses shall be deemed included in the consultant rates and/or the total amount paid for the respective Task.

Design Professional Agreement with CSG Consultants, Inc./Exhibit B-Schedule of Fees Page 3 Rev. 09-28-18
IV. ADDITIONAL SERVICES

Additional Services consists of work not included in the Scope of Services outlined within this Agreement. Pre- approved Additional Services shall be billed to City at the fixed hourly rates shown below in Section V, RATE SCHEDULE, or at an agreed negotiated price. Monthly billing for Additional Services shall be consistent with the terms set forth in this Agreement. Payment for any Additional Services is allowed only if written authorization is given by the City Engineer in advance of the work to be performed. Additional Services shall not exceed $38,310 without approval by the City.

V. RATE SCHEDULE

Charges for personnel engaged in professional and/or technical work are based on the actual hours directly chargeable to the project.

Rates by classification are listed below. This initial Rate Schedule shall remain fixed for the duration of the Agreement.

Any classifications added to a rate schedule, or staff members changing classifications, shall be approved in writing by City.

Allowable sub-consultant markup: 10%

CSG Consultants, Inc.:

Classification Hourly Rate
Project Manager / Principal $240
Senior Engineer $205
Associate Engineer $180
Assistant Engineer $150

Design Professional Agreement with CSG Consultants, Inc./Exhibit B-Schedule of Fees Page 4 Rev. 09-28-18
Quiet River Surveying:

... Office· Personnel ...

Principal - California !Professional Land Surveyo r (CA PLS ) ............ $ 260.00 Princ ipal - CA IPI....S - !Professional W itJ1ess ........ S 225 Prep .J $ 275.00 Court (3 hour minimum,, plus materials and expenses as required} Profess ional Land Surveyor~Project Manager.. ..... ...................... ......... .$ 200.00 Senior CAD Drafter J Survey /Mapping Tectm ioian 3 ............. ............ $ 1165 .. 00 CAD Drafter I Mapping Tec!hnician 2 .. .... · - · · ·· - · ··· · - · · ··· - · · ····· · · · · ···· ···· ·$ U0 .. 00 Project Coord ina.tor J Property Researdh S pe cia list ...... .. .................... $ 110 0 .00 Adm in is1rative Services ...... ......... ..... ......... ..... ..... ..... ............ .... .$ 90.00 Note·: Authori zed overti me fees will be charg,ed at 1.5 times the above rates . ... Fiielld Surv,ey Hou rliy Rates ...

Note: All Preva iling Wage field crew rates includ e Vieh i d e, proof of insu ra noe, survey instruments,, all standa rd survey ,gear and mater ials and typical safety equipment. Four Hour Minimum for fi,eld survey ere 1.r. Any additional safieity a111dfor protect ion requirennents and specialized vehicles/ ravel will be billed as additional fees . Overtime hours viii be billed at faotored rates. 1I-Person Survey Crew wl Ho botics ........ ............................................ 225.00 2-Person Survey Crew (fou r hour minimum) ............................................ .$ 325.00 3-Person Survey Crew (Right-of-way traffic work) ... ..................... ...... $ 365 . .00 2-Person Survey Crew - Hydrographic Work w/ Boat. ......................... $ 400.0 0 Design Professional Agreement with CSG Consultants, Inc./Exhibit C-Insurance Requirements Page 1 Rev. 09-28-18

EXHIBIT C

INSURANCE REQUIREMENTS
Without limiting the Contractor’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Contractor’s insurance. The minimum coverages, provisions and endorsements are as follows:

A. COMMERCIAL GENERAL LIABILITY INSURANCE

1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury

2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.

3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.

B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at Design Professional Agreement with CSG Consultants, Inc./Exhibit C-Insurance Requirements Page 2 Rev. 09-28-18
least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.

C. WORKERS’ COMPENSATION

1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.

2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).

3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.

D. PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Contractor. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney’s Office.

E. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.

1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85, or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.

2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution Design Professional Agreement with CSG Consultants, Inc./Exhibit C-Insurance Requirements Page 3 Rev. 09-28-18
from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor’s insurance.

3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non- renewal.

4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Exhibit C, above.

F. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:

1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor 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 Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.

2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required Design Professional Agreement with CSG Consultants, Inc./Exhibit C-Insurance Requirements Page 4 Rev. 09-28-18
by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.

3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.

G. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.

H. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.

Upon City’s request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:

EBIX Inc.

City of Santa Clara—Department of Public Works
P.O. Box 100085 – S2 or 1 Ebix Way
Duluth, GA 30096 John’s Creek, GA 30097

Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
I. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.

Design Professional Agreement with CSG Consultants, Inc./Exhibit D-Labor Compliance Page 1 Rev. 09-28-18

EXHIBIT D

LABOR COMPLIANCE ADDENDUM
This Agreement is subject to the requirements of California Labor Code section 1720 et seq. requiring the payment of prevailing wages, the training of apprentices, and compliance with other applicable requirements.

A. Prevailing Wage Requirements

1. Contractor shall be obligated to pay not less than the General Prevailing Wage Rate, which can be found at www.dir.ca.gov and are on file with the City Clerk’s office, which shall be available to any interested party upon request. Contractor is also required to have a copy of the applicable wage determination posted and/or available at each job site.

2. Specifically, contractors are reminded of the need for compliance with Labor Code Section 1774-1775 (the payment of prevailing wages and documentation of such), Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in the employment of apprentices on public works projects. Further, overtime must be paid for work in excess of 8 hours per day or 40 hours per week pursuant to Labor Code Section 1811-1813.

3. Special prevailing wage rates generally apply to work performed on weekends, holidays and for certain shift work. Depending on the location of the project and the amount of travel incurred by workers on the project, certain travel and subsistence payments may also be required.

Contractors and subcontractors are on notice that information about such special rates, holidays, premium pay, shift work and travel and subsistence requirements can be found at www.dir.ca.gov .

4. Only bona fide apprentices actively enrolled in a California Division of Apprenticeship Standards approved program may be employed on the project as an apprentice and receive the applicable apprenticeship prevailing wage rates. Apprentices who are not properly supervised and employed in the appropriate ratio shall be paid the full journeyman wages for the classification of work performed.

5. As a condition to receiving progress payments, final payment and payment of retention on any and all projects on which the payment of prevailing wages is required, Contractor agrees to present to City, along with its request for payment, all applicable and necessary certified payrolls (for itself and all applicable subcontractors) for the time period covering such payment request. The term “certified payroll” shall include all required documentation to comply with the mandates set forth in Labor Code Section 1720 et seq, as well as any additional documentation requested by the City or its designee including, but not limited to: certified Design Professional Agreement with CSG Consultants, Inc./Exhibit D-Labor Compliance Page 2 Rev. 09-28-18
payroll, fringe benefit statements and backup documentation such as monthly benefit statements, employee timecards, copies of wage statements and cancelled checks, proof of training contributions (CAC2 if applicable), and apprenticeship forms such as DAS-140 and DAS-142.

6. In addition to submitting the certified payrolls and related documentation to City, Contractor and all subcontractors shall be required to submit certified payroll and related documents electronically to the California Department of Industrial Relations. Failure to submit payrolls to the DIR when mandated by the project parameters shall also result in the withholding of progress, retention and/or final payment.

7. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].

8. No contractor or subcontractor may be awarded a contract for public work on a public works project, unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Contractors MUST be a registered “public works contractor” with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for maintenance work or less than $25,000 for construction alternation, demolition or repair work, registration is not required.

9. All contractors/subcontractors and related construction services subject to prevailing wage, including but not limited to: trucking, surveying and inspection work must be registered with the Department of Industrial Relations as a “public works contractor”. Those you fail to register and maintain their status as a public works contractor shall not be permitted to perform work on the project.

10. Should any contractor or subcontractors not be a registered public works contractor and perform work on the project, Contractor agrees to fully indemnify the City for any fines assessed by the California Department of Industrial Relations against the City for such violation, including all staff costs and attorney’s fee relating to such fine.

11. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.

B. Audit Rights
All records or documents required to be kept pursuant to this Agreement to verify compliance with this Addendum shall be made available for audit at no cost to City, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such records or documents shall be provided to City for audit at City Hall when it is Design Professional Agreement with CSG Consultants, Inc./Exhibit D-Labor Compliance Page 3 Rev. 09-28-18
practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records or documents shall be made available at Contractor’s address indicated for receipt of notices in this Agreement.

C. Enforcement

1. City shall withhold any portion of a payment; including the entire payment amount, until certified payroll forms and related documentation are properly submitted, reviewed and found to be in full compliance. In the event that certified payroll forms do not comply with the requirements of Labor Code Section 1720 et seq., City may continue to hold sufficient funds to cover estimated wages and penalties under the Agreement.

2. Based on State funding sources, this project may be subject to special labor compliance requirements of Proposition 84.

3. The City is not obligated to make any payment due to Contractor until Contractor has performed all of its obligations under these provisions. This provision means that City can withhold all or part of a payment to Contractor until all required documentation is submitted. Any payment by the City despite Contractor’s failure to fully perform its obligations under these provisions shall not be deemed to be a waiver of any other term or condition contained in this Agreement or a waiver of the right to withhold payment for any subsequent breach of this Addendum.

City or the California Department of Industrial Relations may impose penalties upon contractors and subcontractors for failure to comply with prevailing wage requirements.

These penalties are up to $200 per day per worker for each wage violation identified; $100 per day per worker for failure to provide the required paperwork and documentation requested within a 10-day window; and $25 per day per worker for any overtime violation.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
23-393 Agenda Date: 5/23/2023

REPORT TO COUNCIL

SUBJECT
Action on Amendment No. 1 to the Agreement for Professional Services with CSG Consultants, Inc. for Development Plan Review and Field Inspection Services

COUNCIL PILLAR
Deliver and Enhance High-Quality Efficient Services and Infrastructure

BACKGROUND
In early 2019, the City issued a Request for Qualifications to select qualified firms to provide plan check review and field inspection services for the Related Santa Clara project and other City projects as needed. On November 12, 2019 (Item 2.D, RTC19-1009), City Council adopted Resolution 19- 8776 authorizing the City Manager to execute Master Agreements with various consultants, including CSG Consultants, Inc. (CSG), to provide assistance with development plan review and field inspection services. The services to be performed include complete plan check review of developers' Public Improvement Plans, including reviewing for compliance with the City's Conditions of Approval, Standard Details, Specifications, Design Criteria, and traffic/civil engineering practices. The scope also includes construction field inspection of public improvements. The agreement with CSG has a not-to-exceed amount of $300,000 and a termination date of October 31, 2024. There are current open and ongoing activities with CSG related to this agreement for various private developments in Santa Clara.

DISCUSSION
The Department of Public Works (DPW) utilizes third-party consultant firms to assist with plan check and inspection services. The use of outside consultants and contract services is a key strategy to help manage workload demand resulting from surges in activity and position vacancies within the department. This strategy allows the City to deliver efficient and quality customer service to the community in a timely manner. Additional resources are necessary to process the current workload due to vacancies and after-hours inspection for encroachment permits.

The original contract amount for CSG is limited to $300,000 and the City has issued several task orders and utilized 60 percent of the current contract capacity for inspection services and plan check reviews.

Amendment No. 1 allows CSG to continue at its current capacity on open and ongoing task orders to provide consistency in service to development projects currently under review or construction. The Department is now seeking approval to increase the contract amount for CSG Consultants Inc. from $300,000 to a not-to-exceed amount of $600,000. The termination date for the amendment will remain October 31, 2024.

City of Santa Clara Printed on 5/18/2023Page 1 of 2
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23-393 Agenda Date: 5/23/2023

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378 (b)(4) in that it is a fiscal activity that does not involve commitment to a specific project which may result in potential significant impact on the environment.

FISCAL IMPACT
Funding for this contract is paid for through developer deposits in the General Fund. There is no additional cost to the City other than administrative staff time and expense as developers and utility companies deposit funds for services provided under this contract. Companies requesting expedited plan review and/or field inspection services are required to deposit a starting sum of $20,000, which will be drawn down to compensate the consultant (on a time and materials basis) for plan review and/or field inspection services. Companies may be required to deposit additional funds on an as- needed basis. Unused funds after approval of associated public improvement plans and/or City acceptance of the public improvements will be returned to the developers. Budgetary adjustments to the revenue and expenditure budget to align with received and spent developer deposits will be brought forward as needed.

COORDINATION
This report has been coordinated with the Finance Department and the City Attorney’s Office.

PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the
public information desk at any City of Santa Clara public library.

RECOMMENDATION

1. Approve and Authorize the City Manager to execute Amendment No. 1 to the Agreement for Professional Services with CSG Consultants, Inc. for Development Plan Review and Field Inspection Services, in substantially the form presented, in a final form approved by the City Attorney.

2. Authorize the City Manager to make minor modifications, including time extensions, to the agreement if necessary, on forms approved by the City Attorney.

Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Jōvan D. Grogan, City Manager

ATTACHMENTS

1. Original Agreement

2. Amendment No. 1
City of Santa Clara Printed on 5/18/2023Page 2 of 2
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EBIX Insurance No. *S200004282

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
CSG CONSULTANTS, INC.

PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and CSG Consultants, Inc. a California corporation, (Consultant). City and Consultant may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A City desires to secure the services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services";
B. Consultant represents that it, and its st1bconsultants, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.

The Parties c;tgree as .follows:

AGREEMENT TERMS AND CONDITIONS

1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Consultant shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:

Exhibit A - Scope of Services
Exhibit B - Compensation
Exhibit C - Insurance Requirements
Exhibit D - Task Order Form
Exhibit E - Labor Compliance Addendum
Agreement with CSG Consultants, Inc.

Rev. 07-01-18

This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.

2. TERM OF AGREEMENT
A. Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on February 1, 2020 and terminate on October 31, 2024.

3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
A. General: The Consultant will provide services to the City as set forth in Exhibit A and as further described pursuant to individual task orders (Exhibit D). Each Task Order will describe the services and deliverables (collectively "Work") the Consultant must provide, the time limit within which the Consultant must complete the Work and the compensation for the Work.

B. Approved Task Order: The City will not compensate the Consultant for any Work until the City has executed the task order for such Work ("Approved Task Order").

C. Obligation to Issue: The City has no obligation to issue any Approved Task Orders under this Agreement.

D. Each Approved Task Order shall be subject to the terms and conditions of this Agreement.

4. WARRANTY
Consultant expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Consultant agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Consultant. If Consultant fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Consultant for the cost incurred by City.

Agreement with CSG Consultants, Inc.

Rev. 07-01-18
Page2

5. QUALIFICATIONS OF CONSULTANT-STANDARD OF CARE
Consultant represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Consultant's representations regarding its skills and knowledge. Consultant shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.

6. COMPENSATION AND PAYMENT
In consideration for Consultant's complete performance of Services, City shall pay Consultant for all materials provided and Services rendered by Consultant in accordance with Exhibit B, entitled "COMPENSATION." The maximum compensation of this Agreement is Three Hundred Thousand Dollars ($300,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Consultant's expense.

Consultant shall not be entitled to any payment above the maximum compensation under any circumstance.

7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days' prior written notice to Consultant.

B. Termination for Default. If Consultant fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Consultant.

C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Consultant will deliver to City all City information or material that Consultant has in its possession.

8. ASSIGNMENT AND SUBCONTRACTING
City and Consultant bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Consultant shall not hire subconsultants without express written permission from City.

Agreement with CSG Consultants, Inc.

Rev. 07-01-18

Consultant shall be as fully responsible to City for the acts and omissions of its subconsultants, and of persons either directly or indirectly employed by them, as Consultant is for the acts and omissions of persons directly employed by it.

9. NO THIRD~PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.

10. INDEPENDENT CONSULTANT
Consultant and all person(s) employed by or contracted with Consultant to furnish labor and/or materials under this Agreement are independent Consultants and do not act as agent(s) or employee(s) of City. Consultant has full rights to manage its employees in their performance of Services under this Agreement.

11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Consultant and all other written information submitted to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Consultant which is otherwise known to Consultant or becomes generally known to the related industry shall be deemed confidential.

12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Consultant may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Consultant shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.

13. RIGHT OF CITY TO INSPECT RECORDS OF CONSUL TANT
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Consultant for the purpose of verifying any and all charges made by Consultant in connection with Consultant compensation under this Agreement with CSG Consultants, Inc.

Rev. 07-01-18

Agreement, including termination of Consultant. Consultant agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Consultant shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.

Consultant shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Consultant agrees to assist City in meeting-City's reporting requirements to the State and other agencies with respect to Consultant's Services hereunder.

14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Consultant agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Consultant pursuant to this Agreement - including claims of any kind by Consultant's employees or persons contracting with Consultant to perform any portion of the Scope of Services - and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to inden:rnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.

B. Consultant's obligation to protect, defend, indemnify, and hold harmless in full City and City's employees, shall specifically extend to any and all employment-related claims of any type brought by employees, Consultants, subconsultants or other agents of Consultant, against City (either alone, or jointly with Consultant), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.

C, To the extent Consultant is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Consultant warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Consultant's responsibilities under the Act.

Agreement with CSG Consultants, Inc.

Rev. 07-01-18

15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Consultant shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.

16. WAIVER
Consultant agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City's review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.

17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:

City of Santa Clara
Attention: Public Works Department
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected], and
[email protected]
And to Consultant addressed as follows:

CSG Consultants, Inc.
550 Pilgrim Drive
Foster City, CA 94404
Attention: Cyrus Kianpour
and by e-mail at [email protected]
The workday the e-mail was sent shall control the date notice was deemed given.

An e-mail transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.

18. COMPLIANCE WITH LAWS
Consultant shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to "The Code of the City of Santa Clara, California" ("SCCC"). In particular, Consultant's attention Is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Agreement with CSG Consultants, Inc.

Rev. 07-01-18

Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Consultant has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).

19. CONFLICTS OF INTEREST
Consultant certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Consultant and that no person associated with Consultant has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Consultant is familiar with the provisions of California Government Code section 87100 and following and certifies that it does not know of any facts which would violate these code provisions. Consultant will advise City if a conflict arises.

20. FAIR EMPLOYMENT
Consultant shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.

21. NO USE OF CITY NAME OR EMBLEM
Consultant shall not use City's name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.

22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.

23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.

24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.

Agreement with CSG Consultants, Inc.

Rev. 07-01-18

25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
~
Dated: _3 · )O · JJjJ-0
"CITY"
~F•n DEAN ~ SANTANA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
CSG CONSULTANTS, INC.
a California corporation
Dated: ~ _3~~0 ________ _
By (Signature): .

Name: C rus n our \f-'-'----C.t:.....:_.::..:__ __________ _ Title: Preside t
Principal Place of 550 Pilgrim Drive
Business Address: Foster Citv, CA 94404
Email Address: [email protected]
Telephone: (650) 522-2500
Fax: (650) 522-2599
"CONSULTANT"
Agreement with CSG Consultants, Inc.

Rev. 07-01~18

EXHIBIT A

SCOPE OF SERVICES
The Consultant shall provide plan check review and field inspection consultant services for the following service areas: A) Building; 8) Fire; C) Planning and D) Public Works. 1 GENERAL

1.1 Consultant shall communicate and coordinate with the City review team and report to the designated City representative(s).

1.2 Consultant shall meet with City, other third-party consultant(s), developers, and their design consultants.

1.3 Consultant shall review developers' plans specific to the service areas in Section 2 below.

1.4 Consultant shall review plan revisions as they are submitted to the City for approval during design and/or construction, and provide plan check review comments, recommendations, and action items summaries.

1.5 Consultant shall inspect developers' public and private improvements.

1.6 Consultant shall provide construction management as required. 2 SERVICE AREAS

2.1 Building Consultant Services

2.1.1 Consultant shall provide a )ist qf_the professional(s)-in-charge and plan reviewers affiliated with the third-party consultant, who certify, supervise and/or perform third party plan review.

2.1.2 Consultant shall create and maintain a quality assurance plan, describing method or plan that the third-party consultant uses to maintain the quality of all plan review services it provides.

2.1.3 Consultant shall meet with City staff or developer as required by City to answer code or project related questions.

2.1.4 Any high-rise building or unconventional structural system, such as base isolator, will require an additional independent structural peer review. Consultant shall coordinate with the selected structural peer reviewer and the City.

2.1.5 Consultant shall provide construction administration service as required, including, but not limited to, processing requests for information, reviewing deferred submittals and field revisions.

2.1.6 Consultant shall provide Building Field Inspection services for developer projects including, but not limited to, verification of compliance with State of California construction codes; verification Agreement with CSG Consultants, lnc./Exhibit A-Scope of Services Rev. 07-01-18

of the Contractor's compliance with the City approved plans, City standard details and specifications; ensuring the quality of work; coordination with City departments, other public agencies, and various utilities; maintaining daily reports of items inspected and any other significant items, in the City's Accela permitting software.

2.2 Fire Consultant Services

2.2.1 Consultant shall ensure compliance with projects Community Development, Planning Division conditions of approval.

2.2.2 Consultant shall conduct Building and Fire Code plan reviews utilizing the current adopted Title 19 and 24 regulations.

2.2.3 Consultant shall conduct plan review of fire protection and hazardous materials systems, including smoke control systems.

2.2.4 Consultant shall apply any and all local amendments and policies to the California Fire and Building Codes.

2.2.5 Consultant shall apply nationally recognized standards (e.g., NFPA, ASHRAE, ASTM, SFM, CSG, ASME, ANSI, UL, etc.).

2.2.6 Consultant shall attend meetings requested by the City to answer code or project related questions.

2.2.7 Any high-rise building or unconventional structural system, such as base isolator, will require an additional independent structural peer review. Consultant shall coordinate with the selected structural peer reviewer and the City.

2.2.8 Consultant shall provide the Fire Prevention & Hazardous Materials Division Field Inspection services for developer projects including, but not limited to, verification of contractors' compliance with the City approved plans, City ordinances, City standard details and specifications (via field inspections and field testing); consultant shall be responsible for the development of corrective action lists, and provide data to fire department QA/QC representative; coordination with City departments, fire departments, certified \.mified program agency, and outside regulatory agencies; preparation and maintenance of daily reports of work done, contractor's staff, etc.

2.3 Planning Consultant Services

2.3.1 Consultant shall review project plans for consistency with approved master plan(i;), design guidelines and program environmental impact reports (EIR).

2.3.2 Consultant shall provide architecture and urban design comments.

2.3.3 Consultant shall coordinate project with City departments through the project completeness committee.

Agreement with CSG Consultants, lnc./Exhibit A-Scope of Services Rev. 07-01-18

2.3.4 Consultant shall attend and/or coordinate meetings with City departments and applicant on project topics.

2.3.5 Consultant shall receive public communication on the project, retain communication with project file, and elevate public concerns to Planning Manager.

2.3.6 Consultant shall assist applicant to hold community outreach meetings in accordance with City's public outreach policy.

2.3.7 Consultant shall prepare staff report and coordinate conditions of approval with various departments.

2.3.8 Consultant may present project(s) at architectural committee meetings or on appeal to Planning Commission of City Council.

2.3.9 Consultant shall prepare incompleteness/completeness letter pursuant to the Permit Streamlining Act.

2.3.10 Consultant shall manage CEQA process and ensure consistency with the program EIR (or if needed creation of a CEQA document that tiers off the EIR through the appropriate CEQA process). If additional documentation is needed, Consultant shall work with an environmental consultant on the preparation of environmental documents or technical reports. Consultant shall coordinate review of CEQA documents with the City departments including the City Attorney's Office.

2.3.11 Consultant shall maintain regular office hours at Santa Clara City Hall based on the project's schedule, and in coordination with and approval from the Development Review Officer or Planning Manager; and be present at the Project Completeness Committee, other meetings to coordinate resolution on interdepartmental project topics, and community meeting(s) and public hearing(s).

2.4 Public Works Consultant Services

2.4.1 Consultant shall review developers' public improvement plans by utilizing efficient uses of the public right-of-way and utility easements and constructability.

2.4.2 Consultant shall provide plan check review comments, recommendations and action items summaries.

2.4.3 Consultant shall review plan revisions as they are submitted to the City for approval during design and/or construction.

2.4.4 Consultant shall plan and profile underground storm drain and sanitary sewer systems, including positions of manholes, laterals, catch basins, cleanouts, and related facilities.

2.4.5 Consultant shall review plans for conflicts and inclusion of underground joint trench and other public utilities (gas, telecom, etc.) and inspection.

Agreement with CSG Consultants, lnc./Exhibit A-Scope of Services Rev. 07-01-18

2.4.6 Consultant shall review developers' on-site drainage plans and calculations as they relate to the off-site storm drain system, including verification by model.

2.4.7 Consultant shall provide structural review of bridges, foundations, footings, retaining walls, including geotechnical reports etc., and any necessary quality insurance on special inspection(s).

2.4.8 Consultant shall provide traffic signal design review (new and/or modifications), including interconnect system, pre-emption, detection cameras, traffic monitoring cameras, signing/striping, and construction phase traffic control plans.

2.4.9 Consultant shall provide Public Works field inspection services for developer projects including, but not limited to:

2.4.9.1 Verification of the Consultant's compliance with the City approved plans, City standard details and specifications;

2.4.9.2 Ensuring the quality of work (via materials testing or other means as necessary);

2.4.9.3 Coordination with City departments, other public agencies, and various utilities;

2.4.9.4 Preparing and maintaining daily reports of work done, Consultant's staff, equipment, weather, etc.; and

2.4.9.5 Monitoring of construction impacts and safety of construction operations in the City right-of-way, develop punch list items when the work is substantially complete, and interact with the public.

2.4.10 Consultant shall provide construction management services as required including, but not limited to processing requests for information and submittals, and signing-off on encroachment permits (indicating all the work has been completed in compliance with City requirements).

2.4.11 Consultant shall review and approve developers' record drawings that show what was actually constructed for City records.

2.4.12 Consultant shall review and provide recommendations on subdivision maps and plat and legal documents.

Agreement with CSG Consultants, lnc./Exhibit A-Scope of Services Rev. 07-01-18

1 MAXIMUM COMPENSATION

EXHIBIT B

COMP EN SA TION

1.1 The maximum amount of compensation to be paid to Consultant shall not exceed Three Hundred Thousand Dollars ($300,000).

1.2 City shall pay Consultant for completed additional services at the hourly rates listed in Table 81- Hourly Rates.
2 GENERAL

2.1 The Consultant shall not be compensated for any Work until a task order form for such work has been executed by the City ("Approved Task Order").

2.2 The cover page of each task order form will specify the maximum amount payable to the Consultant for all professional fees, costs and expenses related to the Consultant providing the Work under the task order ("Maximum Task Order Compensation").

2.3 Attachment C of each task order form is a compensation table setting forth the manner in which the City will pay the Maximum Task Order Compensation. The compensation table shall be completed in accordance with Section 3 below.
3 COMPENSATION TABLE

3.1 Compensation Table - Part 1: Part 1 of the Compensation Table addresses compensation for the task(s) to be performed under the task order and shall be completed as follows.

3.1.1 Task Numbers (Column 1 ): Column 1 sets forth the task number(s) for which the City will compensate the Consultant. Each task number shall correspond to the same task number in Attachment A of the task order form. If a task number included in Attachment A is not included in the Compensation Table, then the City will not compensate the Consultant separately for that task, and payment for such task is deemed included in the other task(s) for which the Consultant is receiving compensation.

3.1.2 Basis of Compensation (Column 2): Column 2 identifies whether the City will pay the Consultant for the task(s) on a time-and­ materials basis or on a fixed-fee (lump-sum) basis.

3.1.3 Invoice Period (Column 3): Column 3 identifies when the Consultant must submit its invoice for payment. If invoicing is monthly, the Consultant must submit its invoice to the City by the 10th Business Day of each month for Work completed during the Agreement with CSG Consultants, lnc./Exhiblt 8-Compensation Rev. 07-01-18

previous month. If invoicing is upon the completion of a task or group of tasks, the Consultant must submit its invoice to the City within 20 Business Days following completion of the task(s) to the City's satisfaction. If invoicing is upon the completion of all Work, the Consultant must submit its invoice to the City within 20 Business Days following completion of all Work to the City's satisfaction.

3.1.4 Compensation (Column 4): Column 4 sets forth the maximum compensation the City will pay the Consultant for completing the task(s).

3.2 Compensation Table - Part 2: Part 2 of the Compensation Table indicates whether the City will reimburse the Consultant separately for expenses incurred in providing the Work. The following conditions will apply if the City reimburses the Consultant separately for expenses.

1. 2.

3. 4.

5. 6.

3.2.1 Expenses That Are Reimbursable: Any reimbursement to the Consultant is limited to the expenses set forth below in the Reimbursable Expense Schedule. The City will reimburse these expenses at actual cost only unless a markup is specified.

Reimbursable Expense Schedule Mark Up
The cost of mailing, shipping and/or delivery of any No Markup documents or materials.

The cost of photographing, printing, reproducing and/or No Markup copying any documents or materials.

Telephone and facsimile transmission charges. No Markup The rental of any specialized equipment to the extent the As City's contract administrator has preapproved, in writing, the specified, cost of such rental. not to
exceed 10%
With the written pre-authorization of the City's contract No Markup administrator, mileage and other travel-related expenses.

Any expenses expressly identified as being reimbursable in As the Schedule of Rates and Charges or in an Approved specified, Service Order. not to
exceed 10%
Agreement with CSG Consultants, lnc./Exhibit B-Compensation Rev. 07-01-18
Page2

3.3 Compensation Table - Part 3: Part 3 indicates whether the City will compensate the Consultant separately for subconsultant costs incurred in providing any part of the Work. If the City will compensate the Consultant separately for subconsultant costs, the City will do so in accordance with the following.

3.3.1 Actual Costs: The Consultant can invoice the City for no more than the actual cost of each subconsultant.

3.3.2 Maximum Amount: For each Approved Task Order, the City will compensate the Consultant for all subconsultants in a total amount not to exceed the amount set forth in the last column of Part 3. Any additional subconsultant costs that the Consultant incurs in excess of the specified maximum amount are at no cost to the City.

Agreement with CSG Consultants, lnc./Exhibit B-Compensation Rev. 07-01-18

I! i
\'
Table 81 - Hourly Rates
Buildino Official
Senior BuildinQ Ins ector
Permit Technician
Buildinq Plan Review
Senior Princi al Planner
Princi al Planner
Senior Planner
Associate Planner
Assistant Planner
Two-Person Surve Crew
Senior Pro'ect Mana er
Agreement with CSG Consultants, lnc./Exhibit 8-Compensation Rev. 07-01-18
$145/HR
$135/HR
$105/HR
$95/HR
$85/HR
$125/HR
$210/HR
$175/HR
$160/HR
$140/HR
$125/HR
$320/HR
$240/HR
$220/HR
$210/HR
Page4
Senior Structural Engineer
Structure Representative
Resident Enaineer
Senior Land Survevor
Senior Enqineer
Sustainability Promam Manager
Associate Enaineer
Assistant Resident Enaineer
Senior Construction Inspector
Assistant Enaineer
Sustainability Program Senior
Analyst
Senior Analyst
Construction Inspector
Engineering Designer/CASp
Inspection & Consultation
Analyst
Sustainability Proaram Analyst
Administrative Assistant
Agreement with CSG Consultants, lnc./Exhibit B-Compensatlon Rev. 07-01-18
$210/HR
$200/HR
$200/HR
$190/HR
$190/HR
$175/HR
$165/HR
$165/HR
$155/HR
$145/HR
$150/HR
$150/HR
$140/HR
$135/HR
$125/HR
$125/HR
$75/HR

EXHIBITC

INSURANCE REQUIREMENTS
Without limiting the Consultant's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Consultant shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall. be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Consultant's insurance. The minimum coverages, provisions and endorsements are as follows:

A. COMMERCIAL GENERAL LIABILITY INSURANCE

1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury

2. Exact structure and layering of the coverage shall be left to the discretion of Consultant; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.

3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Consultant to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a "pay on behalf' basis with defense costs payable in addition to policy limits;
b. There shall be no cross-liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.

Agreement with CSG Consultants, lnc./Exhibit C-lnsurance Requirements Rev. 07-01-18

Ebix Insurance No. S200004282
AMENDMENT NO. 1

TO THE AGREEMENT FOR

SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA ,
AND
CSG CONSULTANTS, INC.

PREAMBLE
This agreement ("Amendment No. 1 ") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City), and CSG CONSULTANTS , INC., a California corporation (Consultant). City and Consultant may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement. "

RECITALS
A. The Parties previously entered into an agreement entitled "AGREEMENT FOR

SERVICES BETWEEN THE CITY OF SANTA CLARA, CALIFORNIA , AND CSG CONSUL TANTS , INC.", dated March 10, 2020 (Agreement) ; and B. The Parties entered into the Agreement for the purpose of having the Consultant provide qualified contract personnel, and technical and professional services on an on-call basis, and the Parties now wish to amend the Agreement to increase the amount billed under the Agreement for a total compensation not to exceed $600,000.

NOW, THEREFORE , the Parties agree as follows :

AMENDMENT TERMS AND CONDITIONS

1. Section 6 of the Agreement , entitled "Compensation and Payment" is amended to read as follows:

A. "Maximum Total Compensation - Agreement: The maximum total, aggregate compensation the City will pay the Contractor for all Approved Service Orders issued under this Agreement, subject to budget appropriat ions, shall not exceed Six Hundred Thousand Dollars ($600,000) ("Maximum Total Compensation "). All work performed or materials provided in excess of the Total Maximum Compensation shall be at Contractor 's expense . Contractor shall not be entitled to any payment above the Total Maximum Compensation under any circumstance ." Amendme nt No. 1 to AgreemenUCSG Consult ants, Inc.

Rev. 10/25/19

2. That Exhibit B, 'Table 81-Hourly Rates" of the Agreement, is hereby deleted in its entirety and replaced with the attached "Revised Table 8-1- Hourly Rates".

3. Except as set forth herein, all other terms and condit ions of the Agreement shall remain in full force and effect. In case of a conflict in the terms of the Agreement and this Amendment No. 1, the provisions of this Amendment No. 1 shall control.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 1 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form : Dated : -------- - --- --·
Glen Googins
City Attorney
Office of City Manager
City of Santa Clara
City of Santa Clara 1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-0347
"CITY"
CSG CONSULTANTS, INC.
a California corporation
LI_ I P_,Zo2. l
Dated: 7 °
By (Signature): -~- .- ~.,,......--z- .-:;-~.....,.,.r-------- - -- Name: Nourdin Kha~
Title : Vice President
Principal Place of 3150 Almaden Expressway, Suite 255, San Business Address : Jose, CA 95118 ---'----------------- Em a i I Address: nourdin@cs gengr.com
Telephone: (408) 618-8300
Fax: (888) 618-8310
"CONSUL TANT"
S:\Attorney\AGREEMENTS\Amendments\Amendment No. 1 - Form.doc Amendment No. 1 to Agreement for Professiona l Seivices/ CSG Consultants, Inc Rev. 10/25/2019

Revised Table 81 - Hourly Rates
Position Hourly Rate
Building
Building Official $145/HR
CASp Inspection $135/HR
Senior Building Inspector $105/HR
Building Inspector $95/HR
Permit Technician $85/HR
Building Plan Review $125/HR
Expedited Building Plan Review $187.50/HR
Fire
Fire Inspector $110/HR
Fire Plan Review 70% of City's Plan Check Fee
Planning
Senior Principal Planner $210/HR
Principal Planner $175/HR
Senior Planner $160/HR
Associate Planner $140/HR
Assistant Planner $125/HR
Public Works
Two-Person Survey Crew $350/HR
Senior Principal Engineer $270/HR
Principal Engineer $250/HR
Senior Project Manager $235/HR
Senior Structural Engineer $235/HR
Structure Representat ive $220/HR
Resident Engineer $220/HR
Senior Land Surveyor $210/HR
Senior Engineer $210/HR
Sustainability Program Manager $200/HR
Associate Engineer $185/HR
Assistant Resident Engineer $180/HR
Senior Construction Inspector $175/HR
Assistant Engineer $155/HR
Sustainability Program Senior $170/HR Analyst
Senior Analyst $165/HR
Construction Inspector $165/HR
Engineering Designer/CASp $150/HR
Amendmen t No. 1 to Agreement for Profess ional Services / CSG Consultants , Inc.

Rev. 10/25/2019

Position Hourly Rate
Inspection & Consultation
Analyst $140/HR
Sustainability Program Analyst $145/HR
Administrative Assistant $85/HR
Engineering Trainee $75/HR
Amendment No. 1 to Agreement for Professional Services/ CSG Consultants, Inc.

Rev. 10/25/2019
Page4
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
23-579 Agenda Date: 5/23/2023

REPORT TO COUNCIL

SUBJECT
Authorize the City Manager to Negotiate and Execute Lease Extensions for 1000 Lafayette Street (Peddler’s Plaza) to May 31, 2024

COUNCIL PILLARS
Promote and Enhance Economic, Housing and Transportation Development Deliver and Enhance High Quality Efficient Services and Infrastructure

BACKGROUND
The City of Santa Clara (“City”) is the landowner of two downtown properties located at 1000 Lafayette Street, known as Peddler’s Plaza, and 900 Lafayette Street, known as Commerce Plaza.

Peddler’s Plaza is approximately a 1.3-acre site with a one-story retail commercial building. Peddler’s Plaza has 10,300 square feet of leasable space with seven (7) units.

On September 28, 2021, the City Council authorized an Agreement with Eugene Burger Management Corporation (EBMC) for property management services and also authorized the City Manager to negotiate and execute leases at 900 and 1000 Lafayette Street (RTC 21-1214). Staff has worked diligently to enter into leases for both properties and have executed 34 leases including four of the seven possible spaces at Peddler’s Plaza (Attachment 1). The leases at Commerce Plaza will expire on May 31, 2024 and the leases for Peddler’s Plaza will expire on September 30, 2023.

These two properties have long been discussed as integral components of a long-term vision for rebuilding downtown. The Precise Plan process for downtown is nearing completion and the EIR is expected to be circulated May 2023. The Precise Plan will be considered by Council in an August/September timeframe. If the Precise Plan is approved, there are a number of significant long- term items that will be required prior to any development of City property. It would be beneficial to the City if there is ongoing occupancy of the structures until that time.

DISCUSSION
In order for their occupancy to continue, the City will need to enter into lease amendments with each of the existing tenants at 1000 Lafayette Street.

Staff is proposing to extend the leases (at the current rent) for 1000 Lafayette Street to May 31, 2024.

Aligning the term of the leases at both 1000 and 900 Lafayette Street properties will simplify any discussion of future lease extensions in coordination with the timing of the Precise Plan adoption and implementation. Depending on Council consideration of the Precise Plan and additional Council actions, it is anticipated that the next steps would generally be as follows:

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23-579 Agenda Date: 5/23/2023
· Council consideration of Precise Plan (August/September) · Council consideration to declare the property as Surplus Land · If declared surplus, a Notice of Availability (NOA) will be issued as required by the Surplus Lands Act.
o If the City receives one or more responses to the NOA within 60 days, the City must engage in good faith negotiations with the responding parties for at least 90 days (90 days is a minimum - good faith negotiations could be much longer) o If there are offers that could be accepted negotiations and agreements would likely take over a year
· If the property is not disposed of through the Surplus Land Act process, then the City can release a Request for Proposals (RFP) for the property for sale/lease o Draft and advertise RFP
o Developer selection
o Developer negotiations
o Contracts for Council consideration
o Above process will require approximately 1.5 - 3 years · After contracts are finalized, the developer can move forward with planning and building permits
Towards the end of this calendar year, staff will review the status of the Precise Plan and next steps and will consider returning to Council for additional authority for both properties to extend leases beyond May 31, 2024.

Property Management
The Agreement with Eugene Burger Management Corporation (EBMC) to provide property management services ends on September 30, 2023. The City Manager has authority to execute three one-year options to extend the term of the Agreement with EBMC after the initial term ending on September 30, 2026 if all options are exercised, subject to the appropriation of funds.

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

FISCAL IMPACT
The estimated monthly revenues are $9,295 per month for Peddler’s Plaza and $126,014 per month for Commerce Plaza. The total estimated revenue over the eight- month extension for Peddler’s Plaza is approximately $74,000. Based on the current agreement, the estimated cost for the lease extension is approximately $15,000.

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23-579 Agenda Date: 5/23/2023
Funding for this contract has been incorporated into the City Manager’s Office operating budget and there are sufficient funds to cover the costs of this extension in the FY 2023/24 and FY 2024/25 Proposed Operating Budget, which will be brought forward for City Council approval on June 27, 2023.

COORDINATION
This report was coordinated with the Finance Department and City Attorney’s Office.

PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the
public information desk at any City of Santa Clara public library.

Staff discussed this item with the Downtown Task Force at the April 20 Downtown Task Force Meeting.

RECOMMENDATION
Authorize the City Manager to negotiate and execute amendments to the existing leases for the commercial spaces at 1000 Lafayette to extend the term of each lease to May 31, 2024 in final forms approved by the City Attorney.

Reviewed by: Manuel Pineda, Assistant City Manager/Chief Electric Utility Officer Approved by: Jōvan D. Grogan, City Manager
Attachments:

1. Peddler’s Plaza Lease Suite A

2. Peddler’s Plaza Lease Suite A1

3. Peddler’s Plaza Lease Suite C

4. Peddler’s Plaza Lease Suite D
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When you enter into a discussion with a real estate agent regarding a real estate transacƟ on, you should from the outset understand what type of agency rela Ɵonship or representaƟon you wish to have with the agent in the transac Ɵon.

A Seller's agent under a lis Ɵng agreement with the Seller acts as the agent for the Seller only. A Seller's agent or a subagent of that agent has the following a ffirmaƟve obligaƟons:

To the S el le r : Afiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Seller .

T o the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent's du Ɵes. (b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially a ffecƟng the value or desirability of the property that are not known to, or within the diligent a ƩenƟon and observaƟon of, the par Ɵes.

An agent is not obligated to reveal to either party any con fidenƟal informaƟon obtained from the other party that does not involve the a ffirmaƟve duƟes set forth above.

A Buyer's agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situa Ɵons, the agent is not the Seller's agent, even if by agreement the agent may receive compensaƟon for services rendered, either in full or in part from the Seller. An agent ac Ɵng only for a Buyer has the following a ffirmaƟve obligaƟons:

To the Bu ye r : Afiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Buyer.

T o the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent's du Ɵes. (b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially a ffecƟng the value or desirability of the property that are not known to, or within the diligent aƩenƟon and observa Ɵon of, the parƟes.

An agent is not obligated to reveal to either party any con fidenƟal informaƟon obtained from the other party that does not involve the a ffirmaƟve duƟes s et forth above.

A real estate agent, either ac Ɵng directly or through one or more salesperson and broker associates, can legally be the agent of both the Seller and the Buyer in a transacƟon, but only with the knowledge and consent of both the Seller and the Buyer .

In a dual agency situa Ɵon, the agent has the following a ffirmaƟve obligaƟons to both the Seller and the Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either the Seller or the Buyer. (b) Other du Ɵes to the Seller and the Buyer as stated above in their respec Ɵve sec Ɵons.

In represenƟng both Seller and Buyer, a dual agent may not, without the express permission of the respec Ɵve party, disclose to the other party con fidenƟal informaƟon, including, but not limited to, facts rela Ɵng to either the Buyer's or Seller's financial posiƟon, moƟ vaƟons, bargaining posiƟon, or other personal informaƟon that may impact price, including the Seller's willingness to accept a price less than the lis Ɵng price or the Buyer's willingness to pay a price greater than the price offered.

Either the purchase agreement or a separate document will contain a con firmaƟon of which agent is represen Ɵng you and whether that agent is represenƟ ng you exclusively in the transacƟon or ac Ɵng as a dual agent. Please pay aƩ enƟon to that con firmaƟon to make sure it accurately refl ects your understanding of your agent’s role. The above du Ɵes of the agent in a real estate transac Ɵon do not relieve a Seller or Buyer from the responsibility to protect his or her own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transac Ɵon. A real estate agent is a person quali fied to advise about real estate. If legal or tax advice is desired, consult a competent professional. If you are a Buyer, you have the duty to exercise reasonable care to pro tect yourself, including as to those facts about the property which are known to you or within your diligent a ƩenƟon and observa Ɵon . Both Sellers and Buyers should strongly

DISCLOSURE REGARDING REAL ESTATEAGENCY RELATIONSHIP
(As required by the Civil Code)

SELLER'S AGENT

BUYER'S AGENT

AGENT REPRESENTING BOTH SELLER AND BUYER

SELLER AND BUYER RESPONSIBILITIES
consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transac Ɵon can be complex and subject to change.

Throughout your real property transac Ɵon you may receive more than one disclosure form, depending upon the number of agents assis Ɵng in the transac Ɵon. The law requires each agent with whom you have more than a casual rela Ɵonship to present you with this disclosure form. You should read its contents each Ɵme it is presented to you, considering the rela Ɵonship between you and the real estate agent in your speci fict r a n s a cƟon. This disclosure form includes the provisions of SecƟons 2079.13 to 2079.24, inclusive, of the Civil Code set forth on page 2. Read it carefully. I/WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS DISCLOSURE AND THE PORTIONS OF THE CIVIL CODE PRINTED ON THE BACK (OR A SEP ARATE P AGE).

Buyer Seller Lessor Lessee Supakam Corp. Date:

Buyer Seller Lessor Lessee City of Santa Clara, California, a chartered municipal corporation. Date:

Agent: Eugene Burger Management Corporation DRE Lic. #: 01183885 Real Estate Broker (Firm)
By: Alex Ayala Sr. DRE Lic. #: 02054907 Date:
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© 2019 AIR CRE. All Rights Reserved. Last Edited: 12/20/2021 12:34 PM AD-3.01, Revised 10-22-2020 Page2 of 4
(Salesperson or Broker-Associate)
THIS FORM HAS BEEN PREPARED BY AIR CRE. NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF THIS FORM FOR ANY SPECIFIC TRANSACTION. PLEASE SEEK LEGAL COUNSEL AS TO THE APPROPRIATENESS OF THIS FORM. ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&# I AIL.c_ A., ... 1....
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DISCLOSURE REGARDINGREAL ESTATEAGENCY RELATIONSHIP
CIVIL CODE SECTIONS 2079.13 THROUGH 2079.24 (2079.16 APPEARS ON THE FRONT) 2079.13.A s u s e di n S e cƟons 2079.7 and 2079.14 to 2079.24, inclusive, the following terms have the following meanings:
(a) “ Agent” means a person acƟng under provisions of Title 9 (commencing with Sec Ɵon 2295) in a real property transac Ɵon, and includes a person who is licensed as a real estate broker under Chapter 3 (commencing with Sec Ɵon 10130) of Part 1 of Division 4 of the Business and Professions Code, and under whose license a lis Ɵng is executed or an o ffer to purchase is obtained. The agent in the real property transac Ɵon bears responsibility for that agent’s salespersons or broker associates who perform as agents of the agent. When a salesperson or broker associate owes a duty to any principal, or to any buyer or seller who is not a principal, in a re al property transacƟon, that duty is equivalent to the duty owed to that party by the broker for whom the salesperson or broker associate func Ɵons. (b) “Buyer” means a transferee in a real property transac Ɵon, and includes a person who executes an o ffer to purchase real property from a seller through an agent, or who seeks the services of an agent in more than a casual, transitory, or preliminary manner, with the object of entering into a real property transac Ɵon. “Buyer” includes vendee or lessee of real property. (c) “Commercial real property” means all real property in the state, except (1) single-family residen Ɵal real property, (2) dwelling units made subject to Chapter 2 (commencing with Sec Ɵon 1940) of Title 5, (3) a mobile home, as de fined in Sec Ɵon 798.3, (4) vacant land, or (5) a recrea Ɵonal vehicle, as defined in Sec Ɵon 799.29. (d) “Dual agent” means an agent ac Ɵng, either directly or through a salesperson or broker associate, as agent for both the seller and the buyer in a real property transac Ɵon. (e) “LisƟng agreement” means a wri Ʃen contract between a seller of real property and an agent, by which the agent has been authorized to sell the real property or to find or obtain a buyer, including rendering other services for which a real estate license is required to the seller pursuant to the terms of the agreement. (f) “Seller's agent” means a person who has obtained a lis Ɵng of real property to act as an agent for compensa Ɵon. (g) “LisƟng price” is the amount expressed in dollars speci fied in the lis Ɵng for which the seller is willing to sell the real property through the seller’s agent. (h) “Offering price” is the amount expressed in dollars speci fied in an o ffer to purchase for which the buyer is willing to buy the real property. (i) “Offer to purchase” means a wri Ʃen contract executed by a buyer ac Ɵng through a buyer’s agent that becomes the contract for the sale of the real property upon acceptance by the seller. (j) “Real property” means any estate speci fied by subdivision (1) or (2) of Sec Ɵon 761 in property, and includes (1) single-family residen Ɵal property, (2) mul Ɵ-unit residen Ɵal property with more than four dwelling units, (3) commercial real property, (4) vacant land, (5) a ground lease coupled with improvements, or (6) a manufactured home as defined in Sec Ɵon 18007 of the Health and Safety Code, or a mobile home as de fined in Sec Ɵon 18008 of the Health and Safety Code, when o ffered for sale or sold through an agent pursuant to the authority contained in Sec Ɵon 10131.6 of the Business and Professions Code. (k) “Real property transacƟon” means a transac Ɵon for the sale of real property in which an agent is retained by a buyer, seller, or both a buyer and seller to act in that transac Ɵon, and includes a lis Ɵng or an o ffer to purchase. (l) “Sell,” “sale,” or “sold” refers to a transac Ɵon for the transfer of real property from the seller to the buyer and includes exchanges of real property between the seller and buyer, transac Ɵons for the crea Ɵon of a real property sales contract within the meaning of Sec Ɵon 2985, and transac Ɵons for the crea Ɵon of a leasehold exceeding one year’s duraƟon. (m) “Seller” means the transferor in a real property transac Ɵon and includes an owner who lists real property with an agent, whether or not a transfer results, or who receives an o ffer to purchase real property of which he or she is the owner from an agent on behalf of another . “Seller” includes both a vendor and a lessor of real property. (n) “Buyer's agent” means an agent who represents a buyer in a real property transac Ɵon. 2079.14. A seller’s agent and buyer’s agent shall provide the seller and buyer in a real property transac Ɵon with a copy of the disclosure form speci fied in Sec Ɵon 2079.16, and shall obtain a signed acknowledgment of receipt from that seller and buyer, except as provided in Sec Ɵon 2079.15, as follows: (a) The seller’ s agent, if any, shall provide the disclosure form to the seller prior to entering into the lis Ɵng agreement. (b) The buyer’s agent shall provide the disclosure form to the buyer as soon as pracƟcable prior to execuƟon of the buyer’s offe r to purchase. If the o ffer to purchase is not prepared by the buyer’s agent, the buyer’s agent shall present the disclosure form to the buyer not later than the next business day a Ōer receiving the o ffer to purchase from the buyer . 2079.15. In any circumstance in which the seller or buyer refuses to sign an acknowledgment of receipt pursuant to Sec Ɵon 2079.14, the agent shall set forth, sign, and date a wriƩen declaraƟon of the facts of the refusal. 2079.16 Reproduced on Page 1 of this AD form.
2079.17(a) As soon as prac Ɵcable, the buyer’s agent shall disclose to the buyer and seller whether the agent is ac Ɵng in the real property transac Ɵon as the buyer’s agent, or as a dual agent represen Ɵng both the buyer and the seller . This rela Ɵonship shall be con firmed in the contract to purchase and sell real property or in a separate wriƟng executed or acknowledged by the seller, the buyer, and the buyer’s agent prior to or coincident with execu Ɵon of that contract by the buyer and the seller, respecƟvely. (b) As soon as prac Ɵcable, the seller’s agent shall disclose to the seller whether the seller’s agent is ac Ɵng in the real property transac Ɵon as the seller’s agent, or as a dual agent represen Ɵng both the buyer and seller. This rela Ɵonship shall be con firmed in the contract to purchase and sell real property or in a separate wriƟng executed or acknowledged by the seller and the seller’s agent prior to or coincident with the execu Ɵon of that contract by the seller . (C) CONFIRMATION: The following agency rela Ɵonships are confirmed for this transacƟon.

Seller's Brokerage Firm DO NOT COMPLETE, SAMPLE ONLY License Number Is the broker of (check one):† the seller; or† both the buyer and seller. (dual agent) Seller's Agent DO NOT COMPLETE, SAMPLE ONLY License Number Is (check one):† the Seller's Agent. (salesperson or broker associate); or† both the Buyer's Agent and the Seller's Agent. (dual agent) Buyer's Brokerage Firm DO NOT COMPLETE, SAMPLE ONLY License Number Is the broker of (check one):† the buyer; or† both the buyer and seller. (dual agent) Buyer's Agent DO NOT COMPLETE, SAMPLE ONLY License Number Is (check one):† the Buyer's Agent. (salesperson or broker associate); or† both the Buyer's Agent and the Seller's Agent. (dual agent) (d) The disclosures and con firmaƟon required by this sec Ɵon shall be in addi Ɵon to the disclosure required by Sec Ɵon 2079.14. An agent’s duty to provide disclosure and confirmaƟon of representaƟon in this sec Ɵon may be performed by a real estate salesperson or broker associate a ffiliated with that broker . 2079.18 (Repealed pursuant to AB-1289, 2017-18 California Legisla Ɵve session) 2079.19 The payment of compensa Ɵon or the obliga Ɵon to pay compensa Ɵon to an agent by the seller or buyer is not necessarily determina Ɵve of a parƟcular agency relaƟonship between an agent and the seller or buyer . A lis Ɵng agent and a selling agent may agree to share any compensa Ɵon or commission paid, or any right to any compensaƟon or commission for which an obliga Ɵon arises as the result of a real estate transac Ɵon, and the terms of any such agreement shall not necessarily be determinaƟve of a parƟcular relaƟonship.
2079.20 Nothing in this ar Ɵcle prevents an agent from selec Ɵng, as a condiƟon of the agent’s employment, a specificf o r m o fa g e n c y r e l aƟonship not speci fically ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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prohibited by this arƟcle if the requirements of Sec Ɵon 2079.14 and Sec Ɵon 2079.17 are complied with. 2079.21 (a) A dual agent may not, without the express permission of the seller , disclose to the buyer any con fidenƟal informaƟon obtained from the seller. (b) Ad u a l agent may not, without the express permission of the buyer , disclose to the seller any con fidenƟal informaƟon obtained from the buyer. (c) “ConfidenƟal informaƟon” means facts relaƟng to the client’sfinancial posi Ɵon, moƟvaƟons, bargaining posi Ɵon, or other personal informa Ɵon that may impact price, such as the seller is willing to accept a price less than the lis Ɵng price or the buyer is willing to pay a price greater than the price o ffered. (d) This secƟon does not alter in any way the duty or responsibility of a dual agent to any principal with respect to con fidenƟal informaƟon other than price. 2079.22 Nothing in this ar Ɵcle precludes a seller’s agent from also being a buyer’s agent. If a seller or buyer in a transac Ɵon chooses to not be represented by an agent, that does not, of itself, make that agent a dual agent. 2079.23 (a) A contract between the principal and agent may be modi fied or altered to change the agency rela Ɵonship at any Ɵme before the performance of the act which is the object of the agency with the wri Ʃen consent of the par Ɵes to the agency rela Ɵonship. (b) Al e n d e ro r a na u cƟon company retained by a lender to control aspects of a transac Ɵon of real property subject to this part, including valida Ɵng the sales price, shall not require, as a condi Ɵon of receiving the lender’s approval of the transacƟon, the homeowner or lis Ɵng agent to defend or indemnify the lender or auc Ɵon company from any liability alleged to result from the ac Ɵon s of the lender or auc Ɵon company. Any clause, provision, covenant, or agreement purpor Ɵng to impose an obliga Ɵon to defend or indemnify a lender or an auc Ɵon company in violaƟon of this subdivision is against public policy, void, and unenforceable. 2079.24 Nothing in this ar Ɵcle shall be construed to either diminish the duty of disclosure owed buyers and sellers by agents and their associate licensees, subagents, and employees or to relieve agents and their associate licensees, subagents, and employees from liability for their conduct in connec Ɵon with acts governed by this arƟcle or for any breach of a fiduciary duty or a duty of disclosure.

AIR CRE * h Ʃps://www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in wri Ɵng. ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

Lease Agreement/ Supakam Corp. Page 1 of 33
Rev.: 02-01-15
OAK #4822-6577-3562 v9

COMMERCIAL PROPERTY LEASE AGREEMENT

BY AND BETWEEN

CITY OF SANTA CLARA, CALIFORNIA
AND
Supakam Corp.

This lease agreement (“Lease”) is dated December 20, 2021 and is by and between the City of Santa Clara, California, a chartered California municipal corporation (“City”) and Supakam Corp. (“Lessee”). City and Lessee may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Lease.” The City Manager serves as Contract Administrator for this Lease on behalf of the City Council.

RECITALS:

A. Lessee previously leased the Premises (as defined below) pursuant to one or more prior leases, including without limitation Supakam Corp. the Net Shopping Center Lease, with Lucia Lim (“Prior Landlord”), dated November 14, 2019 which expired on September 30, 2021 (collectively, “Prior Lease”). The Prior Lease was in turn a sublease under a ground lease between the Prior Landlord as lessee and the City as lessor for the land underlying the Project (as defined below), which also expired on September 30, 2021 (“Ground Lease”).

B. Effective of the termination of the Prior Lease, the City became the sole owner of the Project, free and clear of the Prior Lease. Nevertheless, the Parties have agreed to enter into a new lease on the terms herein.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, stipulated and agreed, Lessee and City mutually agree as follows:

AGREEMENTS:

LEASE PROVISIONS

1. PREMISES; BUILDING AND PROJECT.

1.1 General. City hereby leases to Lessee, and Lessee hires from City, certain real property located in the City of Santa Clara, County of Santa Clara, State of California, commonly known as Suite A consisting of approximately 2054 square feet (the “Premises”) in that certain approximately 8301 square foot building at 1000 Lafayette Street, Santa Clara, California, 95050 (the “Building”), located on an approximately 1.33 acre parcel (collectively, including the Building, the “Project”), all as more particularly described or identified in Exhibit A attached hereto and incorporated herein by reference. The Project excludes, and Lessee is the sole owner of, the items identified on the Inventory of Fixtures set forth in Exhibit B attached hereto and incorporated herein by reference. ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&# -
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Lease Agreement/ Supakam Corp. Page 2 of 33
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1.2 Pro Rata Share. Lessee’s pro rata share (“Pro Rata Share”) is percent 24.74% which represents the percentage that the rentable area of the Premises bears to the total rentable area of the building.

2. TERM; COMMENCEMENT DATE.

The term of this Lease shall be for Two (2) years commencing at 12:01 am on October 1, 2021 (“Commencement Date”) and ending on September 30, 2023_. Lessee shall, at the expiration of the term of this lease, or upon its earlier termination, surrender the Premises in as good condition as it is now at the date of this lease, reasonable wear and tear excepted. City shall have the right, upon the termination of the term or upon a breach, to enter the Premises and take possession of it.

3. RENT.

3.1 Base Rent. Lessee shall pay base rent (“Base Rent”) in the amount of $3,595.00 per month. All rent, including Base Rent, shall be paid in lawful money of the United States of America without deduction or offset. Base Rent shall be payable on the first day of each and every month commencing on the Commencement Date, at a place (or places) as may be designated in writing from time to time by City.

3.2 Late Charge. Lessee acknowledges late payment by Lessee to City of rent will cause City to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing, accounting and late charges that may be imposed on City.

Therefore, if City does not receive any installment of rent due from Lessee within ten (10) days after the date such rent is due, Lessee shall pay to City an additional sum of ten percent (10%) of the overdue rent as a late charge. The parties agree this late charge represents a fair and reasonable estimate of the costs City will incur by reason of late payment by Lessee. Acceptance of any late charge shall not constitute a waiver of Lessee’s default with respect to the overdue amount, nor prevent City from exercising any of the other rights and remedies available to City.

3.3 Rent. The term “Rent” as used in this Lease shall mean Base Rent and any other amounts owing from Lessee to the City pursuant to this Lease.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&# 1111
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4. SECURITY DEPOSIT.

Lessee has tendered to City an amount of Three Thousand Five Hundred Ninety-Five Dollars $3,595.00 as a security deposit. City may use these funds as are reasonably necessary to remedy any Lessee breach(s) or default(s) under this Lease, including without limitation in the payment of rent, to repair damages caused by Lessee, or expenses incurred to clean the Premises upon termination of tenancy. If any portion of the security deposit is used towards rent or damages at City’s sole discretion, Lessee agrees to reinstate said total security deposit upon receipt of five (5) days written notice.

Any remaining balance of the security deposit shall be returned by City to Lessee at such time after termination of this Lease that all of Lessee’s obligations under this Lease have been fulfilled, reduced by such amounts as may be required by City to remedy defaults on the part of Lessee in the payment of Rent or other obligations of Lessee under this Lease, to repair damage to the Premises, Building, or Project caused by Lessee and to clean the Premises. City may use and co-mingle the security deposit with other funds of City.

Lessee hereby waives the provisions of the California Civil Code section 1950.7, and all other provisions of any laws, now or hereinafter in force, which restricts the amount or types of claim that a landlord may make upon a security deposit or imposes upon a landlord (or its successors) any obligation with respect to the handling or return of security deposits.

5. DUTIES OF LESSEE.

5.1 Lessee shall not use the image of the Premises or Project, the name of City or any other identifying sign or symbol associated with the Premises or Project or City to undertake any action or representation than those specifically assigned to Lessee as a duty under this Lease.

5.2 Lessee shall protect and maintain the Premises. Lessee shall assume the responsibility for the guarding and safekeeping of all personal property located at the Premises.

5.3 Lessee shall not make any interior renovation or remodeling or make any major changes to the Premises or remove any objects, which are not the property of Lessee without the prior written consent of the City Manager or her designee.

6. USE OF PREMISES/COMMON AREAS.

6.1 Permitted Uses. Lessee shall use the Premises solely as and for no other purpose. Without limiting the foregoing, Lessee agrees not to use or permit use of the Premises for any unlawful purpose, and not to commit or permit any waste or nuisance in or about the Premises. Lessee will not use Premises in a manner that increases the risk of fire, cost of fire insurance or improvements thereon. No unreasonable sign or placard shall be painted, inscribed or placed in or on or about the Premises or Project; and no tree or shrub thereon (if any) shall be destroyed or removed or other waste committed of said Premises or Project. No bicycles, ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&# - -

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motorcycles, automobiles or other mechanical means of transportation shall be placed anywhere on the Premises or Project except for areas (if any) identified by the City from time to time. No repair, storage, overhaul or modification of any motor vehicle shall take place on or about the Premises or Project. Lessee, at his/her expense, shall keep the Premises in as good condition as it was at the beginning of the term hereof, reasonable wear and tear excepted.

6.2 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted hereunder. Lessee shall not (i) create, cause, maintain or permit any nuisance or waste in, on or about the Premises or permit or allow the Premises to be used for any unlawful or immoral purpose, and (ii) do or permit to be done anything in any manner which unreasonably disturbs the users of the Project or the occupants of neighboring property. Specifically, and without limiting the above, Lessee agrees not to cause any unreasonable odors, noise, vibration, power emissions or other item to emanate from the Premises. No materials or articles of any nature shall be stored outside upon any portion of the Premises.

6.3 Condition, Use of Premises. City makes no warranty or representation of any kind concerning the condition of the Premises, or the fitness of the Premises for the use intended by Lessee, and hereby disclaims any personal knowledge with respect thereto, it being expressly understood by the parties that Lessee has previously occupied the Premises, personally inspected the Premises, knows its condition, finds it fit for Lessee’s intended use, accepts it as is and has ascertained that it can be used for the limited purposes specified in Section 6.1.

6.4 Use of Adjacent Parking Lot. Lessee and its customers shall have the right to use Two (2) unreserved, unassigned parking spaces located in the City parking lot as shown on Exhibit A on a first come basis. A portion of the parking lot containing spaces equal to the total number of unreserved parking spaces made available to all of the tenants/lessees of the Building is part of the Project’s “Common Areas” (defined in Section 6.6 below).

6.5 Overloading. Lessee shall not do anything on the Premises that will cause damage to the Premises, the Building, or the Project. Lessee shall not suffer or allow the Premises to be used in any manner that will harm or impair the structural strength of the Building nor to suffer or allow to be installed or operated on the Premises, or the Building, any machinery or apparatus whose weight or vibration would harm or impair the structural strength of the Premises or the Building. Lessee shall not place a load upon the floor or roof of the Premises without the City’s prior written consent, which consent may be conditioned on moving by skilled licensed handlers, or which exceeds the load per square foot which such floor or roof was designed to carry. Business machines and mechanical equipment used by Lessee which cause vibration or noise that may be transmitted to the Building structure or to any leased space to such a degree as to be reasonably objectionable to the City or to any other tenants in the Building shall be placed and maintained by Lessee at its ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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expense, in settings of cork, rubber, or spring-type vibration eliminators sufficient to eliminate such vibration or noise.

6.6 Common Areas.

6.6.1 The term “Common Areas” shall mean and refer to all areas within the exterior boundaries of the Project which are now or hereafter made available for general use, convenience, and benefit of the City and other persons entitled to occupy space in the Project, including, without limiting the generality of the foregoing, roofs, exterior walls, structural parts of the Building and structural floor, pipes and conduits, outside lighting fixtures (if any), automobile parking areas (if any), driveways, sidewalks, landscaped and planted areas, and HVAC and plumbing systems and similar common areas, facilities, and systems. Lessee and its employees and invitees are, except as otherwise specifically provided in this Lease, authorized, empowered, and privileged to use the Common Areas in common with other persons during the Term of this Lease. City agrees to maintain and operate, or cause to be maintained and operated (except as hereinafter provided with reference to cost of maintenance), the Common Areas at all times for the benefit and use of the customers and patrons of Lessee, and of other lessees, owners, and occupants of the Project.

6.6.2 City shall keep or cause the Common Areas to be kept in a neat, clean, and orderly condition, and shall repair any damage to the facilities thereof, but all Common Area Expenses shall be charged and prorated in the manner hereinafter set forth. “Common Area Expenses” shall include, but not be limited to, all sums expended in connection with the Common Areas for all general maintenance and repairs, resurfacing, painting, restriping, cleaning, sweeping and janitorial services; maintenance and repair of sidewalks, curbs, and Project signs; sprinkler systems, planting and landscaping (if any); lighting and other utilities; directional signs; maintenance and repair of any fire protection systems, lighting systems, storm drainage systems and other utility systems outside of the Premises; all maintenance and repair costs and expenses, except as to cost of replacement of the roof, exterior walls, structural parts of the Premises and structural floor, and pipes and conduits outside the leased Premises in the Project that furnish the leased Premises with various utilities (except to the extent that the same are the obligations of the appropriate utility company or are otherwise Lessee’s obligation pursuant to Section 7.1 or other provision of this Lease), incurred by the City pursuant to Section 7.2; personnel to implement such services; real and personal property taxes and assessments on the improvements and land comprising the Project; any governmental imposition or surcharge imposed upon the City or assessed against any portion of the Common Areas; all costs and expense pertaining to any security alarm system for the lessees in the Project (if any); depreciation on maintenance and operating machinery and equipment (if owned) and rental paid for such machinery and equipment (if rented); and adequate public liability and property damage insurance on the Common Areas.

In addition, the Common Area Expenses shall include a management fee of ten ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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percent (10%) of the total of all other Common Area Expenses, adjusted from time to time as provided herein. The City may cause any or all of those services to be provided by an independent contractor or contractors.

6.6.3 The Common Area Expenses shall be prorated in the following manner:

(i) From and after the Commencement Date, and throughout the term hereof, Lessee shall pay to the City, on the first day of each calendar month, an amount estimated by the City to be Lessee’s share of the Common Area Expenses. The foregoing estimated monthly charge may be adjusted by the City at the end of any calendar quarter on the basis of the City’s experience and reasonably anticipated costs.

(ii) At the City’s sole election, each calendar year, the City shall furnish Lessee a statement covering the calendar quarter or year just expired, certified as correct by an authorized representative of the City, showing the total of the Common Area Expenses, the amount of Lessee’s share of the Common Area Expenses for such calendar quarter or year, and the payments made by Lessee with respect to such period as set forth in (i) above. If Lessee’s share of the Common Area Expenses exceeds Lessee’s payments so made, Lessee shall pay the City the deficiency within 10 days after receipt of such statement. If Lessee’s payments exceed Lessee’s share of the Common Area Expenses, Lessee shall be entitled to offset the excess against payments next thereafter to become due to the City as set forth in (i) above. Lessee’s share of the Common Area Expenses for the previous calendar quarter or year shall be that portion of all such expenses which is equal to the proportion thereof which the number of square feet of floor area in the Premises bears to the total number of square feet of floor area of the Building.

6.6.4 Failure of Lessee to pay any of the charges as in this Section 6.6 required to be paid shall constitute a default under the terms hereof in like manner as failure to pay Base Rent when due.

6.6.5 The City shall at all times have the right and privilege of determining the nature and extent of the Common Areas, and of making such changes therein and thereto from time to time which in its sole discretion it deems to be desirable and in the best interest of all persons using the Common Areas, including without limitation the location and relocation of driveways, entrances, exits, automobile parking spaces (if any), installation of prohibited areas, landscaped areas, utilities, and all other facilities thereof.

6.6.6 Nothing contained herein shall be deemed to create any liability upon the City for any damage to motor vehicles of customers or employees or for loss of property from within such motor vehicles.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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6.6.7 The City shall have the right to establish, and from time to time change, alter, and amend, and to enforce against Lessee and the other users of the Common Areas such reasonable rules and regulations (including the exclusion of employees’ parking therefrom) as the City in its sole discretion may deem necessary or advisable for the proper and efficient operation and maintenance of the Common Areas. The rules and regulations herein provided may include, without limitation, the hours during which the Common Areas shall be open for use.

6.6.8 City shall retain the sole and absolute discretion in the modification of the Common Areas, which may include the rearrangement, increase or decrease of the areas, and the manner in which the areas are utilized. City shall also have the right at any time and from time to time during the term hereof to exclude and restrain any person from use or occupancy thereof, excepting, however, bona fide customers, patrons, and service suppliers of Lessee, and other tenants of the City who make use of the Common Areas fully in accordance with the rules and regulations established by the City from time to time with respect thereto. The rights of Lessee hereunder in and to the Common Areas shall at all times be subject to the rights of the City, the other tenants of the Project to use the same in common with Lessee, and it shall be the duty of Lessee to keep all of the Common Areas free and clear of any obstructions created or permitted by Lessee or resulting from Lessee’s operation and permit the use of the Common Areas only for normal parking, ingress and egress by said customers, patrons, and service suppliers to and from the Building. Nothing herein shall prevent the City from allowing non-users of the Building or Project to use the parking lot for City- designated events, as long as Lessee and its customers’ rights to use the number of spaces identified in Section 6.4 during Lessee’s regular business hours is not unreasonably restricted.

6.6.9 If in the sole discretion of the City unauthorized persons are using any of the Common Areas by reason of the presence of Lessee in the Premises, Lessee, upon demand of the City, shall enforce such rights against all such unauthorized persons by appropriate proceedings. Nothing herein shall affect the rights of the City at any time to remove any such unauthorized persons from said areas or to restrain the use of any of said areas by unauthorized persons.

______________ __________ Lessee Initials Lessee Initials

7. MAINTENANCE AND REPAIRS.

7.1 Lessee’s Obligations. Lessee agrees at all times during the term hereof, at its own expense, to repair, replace and maintain in good and tenantable condition the Premises and every part thereof (except that portion of the Premises to be maintained by the City as hereinafter provided) and including, without limitation, the utility meters, pipes and conduits, all fixtures, air conditioning equipment and ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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heating equipment, if any, exclusively serving the Premises and other equipment therein, including any equipment installed by Lessee which is part of said system, the storefront or storefronts, all signs, locks and closing devices, and all window sash, casement or frames, door and door frames, floor coverings, including carpeting, terrazzo or other special flooring, and all such items of repair, maintenance, allocation and improvement or reconstruction as may at any time or from time to time be required by a governmental agency having jurisdiction thereof.

Lessee shall contract with a qualified service company for the monthly maintenance of the air conditioning equipment or heating, ventilating and air conditioning equipment, as the case may be, exclusively serving the Premises, with a copy of the service contract to be furnished to the City upon execution of this Lease and a copy of any subsequent contracts to be furnished from time to time during the term of this Lease provided that, at the City’s sole election, the City may so contract directly with a qualified service company, and Lessee shall promptly reimburse the City for the full cost of same. Maintenance of all glass, both exterior and interior, is the sole responsibility of Lessee, and any glass broken shall be promptly replaced by Lessee with glass of the same kind, size and quality. Upon surrender of the Premises, Lessee shall deliver the Premises to the City in good order, condition and state of repair, but shall not be responsible for damages resulting from ordinary wear and tear.

7.2 City Obligations. Subject to the foregoing provisions and to the reimbursement by Lessee described in Section 6.6, the City shall keep and maintain in good and tenantable condition and repair the roof, exterior walls, structural parts of the Premises and structural floor, and pipes and conduits outside the Premises that furnish the Premises with various utilities (except to the extent that the same are the obligations of the appropriate utility company or are otherwise Lessee’s obligation pursuant to Section 7.1 or other provision of this Lease); provided, however, that the City shall not be required to make repairs necessitated by reason of the negligence of Lessee or anyone claiming under Lessee, by reason of failure of Lessee to perform or observe any conditions or agreements of this Lease, or by reason of alterations, additions, or improvements made by Lessee or anyone claiming under Lessee. As used in this Section, “exterior walls” shall not include storefronts, plate glass, window cases or window frames, doors or door frames, security grilles or similar enclosures. It is understood and agreed that the City shall be under no obligation to make any repairs, alterations, renewals, replacements or improvements to and upon the Premises or the mechanical equipment exclusively serving the Premises at any time except as this Lease expressly provides. Anything to the contrary contained in this Lease notwithstanding, the City shall not in any way be liable to Lessee for failure to make repairs as herein specifically required of it unless Lessee has previously notified the City, in writing, of the need for such repairs and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of Lessee’s written notification.

7.3 Lessee’s Failure to Maintain. If Lessee refuses or neglects to make repairs or maintain the Premises, or any part thereof, in a manner reasonably satisfactory to ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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the City, the City shall have the right, upon giving Lessee reasonable written notice of its election to do so, to make such repairs or perform such maintenance on behalf of and for the account of Lessee. In such event the cost of such work shall be paid by Lessee as additional rent promptly upon receipt of an invoice therefor. In addition, the City shall include a management fee on the work that was completed by the City on behalf of the Lessee, in the amount of fifteen percent (15%) that may be adjusted from time to time as provided herein.

7.4 Waiver of Legal Rights. Lessee waives the benefits of any law existing now or at any time during the term of this Lease and any extension thereof or thereafter giving Lessee rights or remedies as a result of the physical condition of the Premises, the Building, or Project and, without limitation, Sections 1932, 1933, 1941, 1941.2, 1942 and 1942.1 of the Civil Code of California and all right to make repairs at the expense of the City or to terminate this Lease as provided in those Civil Code sections or otherwise, except as expressly provided herein.

8. HAZARDOUS MATERIALS.

8.1 Compliance with Laws. Lessee shall not cause or permit any Hazardous Material (as defined below) to be brought upon, kept or used in or about the Premises or Project by Lessee, its agents, employees, contractors or invitees.

8.2 Termination of Lease. City shall have the right to terminate the Lease in City’s sole and absolute discretion in the event that (i) any anticipated use of the Premises by Lessee involves the generation or storage, use, treatment, disposal or release of Hazardous Material in a manner or for a purpose prohibited or regulated by any governmental agency, authority or Hazardous Materials laws; (ii) Lessee has been required by any lender or governmental authority to take remedial action in connection with Hazardous Material contaminating the Premises, if the contamination resulted from Lessee’s action or use of the Premises; or (iii) Lessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal or storage of a Hazardous Material on the Premises.

8.3 Assignment and Subletting. If (i) any anticipated use of the Premises by any proposed assignee or sublessee involves the generation or storage, use, treatment or disposal or release of Hazardous Material in a manner or for any purpose, (ii) the proposed assignee or sublessees has been required by any prior landlord, lender or governmental authority to take remedial action in connection with Hazardous Material contaminating a property, if the contamination resulted from such party’s action or use of the property in question, or (iii) the proposed assignee or sublessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal or storage of a Hazardous Material, then it shall not be unreasonable for City to withhold its consent to an assignment or subletting to such proposed assignee or sublessee.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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8.4 Hazardous Materials Defined. The term “Hazardous Material(s)” shall mean any toxic or hazardous substance, material or waste or any pollutant or contaminant or infectious or radioactive material, including but not limited to, those substances, materials or wastes regulated now or in the future under any of the following statutes or regulations and any and all of those substances included within the definitions of “hazardous substances,” “hazardous waste,” “hazardous chemical substance or mixture,” “imminently hazardous chemical substance or mixture,” “ toxic substances,” “hazardous air pollutant,” “toxic pollutant” or “solid waste” in the (a) “CERCLA” or “Superfund” as amended by SARA, 42 U.S.C. Sec. 9601 et seq., (b) RCRA, 42 U.S.C. Sec. 6901 et seq., (c) CWA., 33 U.S.C. Sec. 1251 et seq., (d) CAA, 42 U.S.C. 78401 et seq., (e) TSCA, 15 U.S.C. Sec. 2601 et seq., (f) The Refuse Act of 1899, 33 U.S.C. Sec. 407, (g) OSHA, 29 U.S.C. 651 et seq. (h) Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et seq., (i) USDOT Table (40 CFR Part 302 and amendments) or the EPA Table (40 CFR Part 302 and amendments), (j) California Superfund, Cal. Health & Safety Code Sec. 25300 et seq., (k) Cal. Hazardous Waste Control Act, Cal. Health & Safety Code Section 25100 et seq., (l) Porter-Cologne Act, Cal. Water Code Sec. 13000 et seq., (m) Hazardous Waste Disposal Land Use Law, Cal. Health & Safety Code Sec. 25220 et seq., (n) “Proposition 65,” Cal. Health and Safety Code Sec. 25249.5 et seq., (o) Hazardous Substances Underground Storage Tank Law, Cal. Health & Safety Code Sec. 25280 et seq., (p) California Hazardous Substance Act, Cal. Health & Safety Code Sec. 28740 et seq., (q) Air Resources Law, Cal. Health & Safety Code Sec. 39000 et seq., (r) Hazardous Materials Release Response Plans and Inventory, Cal.

Health & Safety Code Secs. 25500-25541, (s) TCPA, Cal. Health and Safety Code Secs. 25208 et seq., and (t) regulations promulgated pursuant to said laws or any replacement thereof, or as similar terms are defined in the federal, state and local laws, statutes, regulations, orders or rules. Hazardous Materials shall also mean any and all other substances, materials and wastes which are, or in the future become regulated under applicable local, state or federal law for the protection of health or the environment, or which are classified as hazardous or toxic substances, materials or wastes, pollutants or contaminants, as defined, listed or regulated by any federal, state or local law, regulation or order or by common law decision, including, without limitation, (i) trichloroethylene, tetracholoethylene, perchloroethylene and other chlorinated solvents, (ii) any petroleum products or fractions thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste.

8.5 City’s Right to Perform Tests. At any time prior to the expiration of the Lease Term, City shall have the right to enter upon the Premises in order to conduct tests of water and soil and to deliver to Lessee the results of such tests to demonstrate that levels of any Hazardous Materials in excess of permissible levels has occurred as a result of Lessee’s use of the Premises. Lessee shall be solely responsible for and shall indemnify, protect, defend and hold City harmless from and against all claims, costs and liabilities including actual attorneys’ fees and costs arising out of or in connection with any removal, remediation, cleanup, restoration and materials required hereunder to return the Premises and any other property of whatever nature ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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to their condition existing prior to the appearance of the Hazardous Materials. The testing shall be at Lessee’s expense if City has a reasonable basis for suspecting and confirms the presence of Hazardous Materials in the soil or surface or groundwater in on, under, or about the Premises or the Project, which has been caused by or resulted from the activities of Lessee, its agents, employees, contractors or invitees.

8.6 Hazardous Materials Indemnity. Lessee shall indemnify, defend (by counsel reasonably acceptable to City), protect and hold the City harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and/or expenses, including, without limitation, diminution in value of the Premises or Project, damages for the loss or restriction on use of the rentable or usable space or of any amenity of the Premises or Project, damages arising from any adverse impact or marketing of the Premises or Project and sums paid in settlement of claims, response costs, cleanup costs, site assessment costs, attorneys’ fees, consultant and expert fees, judgments, administrative rulings or orders, fines, costs of death of or injury to any person or damage to any property whatsoever (including, without limitation, groundwater, sewer systems and atmosphere), arising from, or caused or resulting, either prior to or during the Lease Term, in whole or in part, directly or indirectly, by the presence or discharge in, on, under or about the Premises or Project by Lessee, Lessee’s agents, employees, licensees or invitees or at Lessee’s direction, of Hazardous Material, or by Lessee’s failure to comply with any Hazardous Materials Law, whether knowingly or by strict liability. Lessee’s indemnification obligations shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary Hazardous Materials management plan, investigation, repairs, cleanup or detoxification or decontamination of the Premises or Project, and the presence and implementation of any closure, remedial action or other required plans, and shall survive the expiration of or early termination of the Lease Term. For purposes of the indemnity provided herein, any acts or omissions of Lessee or its employees, agents, customers, sublessees, assignees, contractors or subcontractors of Lessee (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Lessee.

9. UTILITIES.

Lessee shall pay prior to delinquency, and shall indemnify and hold the City harmless from, all costs incurred in installation, hook-up, delivery, and repair of all utilities and services whatsoever supplied to or consumed by Lessee on the Premises including, but not limited, to gas, water, sewer, electricity, telecommunications service, janitorial, garbage pickup and disposal, on-Premises landscaping installation and maintenance (if any) and other public utilities. City shall not be responsible for providing any utilities or services to Lessee whatsoever, and shall not be liable to Lessee for any interruption or failure of any utility services to the Premises from any cause whatsoever, nor shall such interruption or failure constitute a constructive eviction or give rise to a right of rent offset or abatement or affect the obligations of Lessee under this Lease in any other way whatsoever.
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10. ALTERATIONS.

10.1 Alterations. Lessee shall not make any alterations to the Premises or the Building without the prior written consent of the City which consent shall not be unreasonably withheld. City shall be deemed to have reasonably withheld or withdrawn consent unless each and every proposed alteration (i) shall not, individually or in the aggregate, lessen the fair market value of the Premises or the Building, or materially affect the usefulness of the Premises or the Building, either for Lessee’s business or the business of potential successor tenants, (ii) be accompanied by all final plans and specifications with any deviation therefrom constituting a separate alteration subject to this Section 10, (iii) be constructed by a California licensed contractor and under the direction of a California licensed architect satisfactory to the City, and (iv) once consented to by the City, shall be completed expeditiously in a good and workmanlike manner, with first class quality materials, and in compliance with all applicable legal and insurance requirements, (v) shall be constructed in strict compliance with the additional conditions set forth in Section 10.4 hereof, and (vi) shall become a “Lessee Improvement” and part of the Premises and subject to this Lease, provided, at the City’s option, Lessee shall remove any such alteration and restore the Premises to their condition prior to the making of same, normal wear and tear excepted, upon the expiration or earlier termination of the term hereof. The City shall exercise its option by 30 days’ notice given no later than 30 days after such expiration or termination and, if Lessee has not so removed and restored within 30 days after the City gives said notice, Lessee shall pay the City upon demand the reasonable rental value of the Premises during the period beginning with the date immediately following said 30 days after the City gives its notice and ending with the date upon which the removal and restoration is completed and the City may, but shall not be obligated to, remove such alteration and restore the Premises and Lessee also shall pay the City its cost of same upon demand.

10.2 Required Alterations. Subject to Section 10.1 above, Lessee shall, at its sole cost, make any alteration, addition, or change to the Premises of any sort, substantial or insubstantial, ordinary or extraordinary, foreseeable or unforeseeable, whether structural or otherwise, as may be required by law due to the existence of, or Lessee’s use or occupancy of, the Premises or as a result of Lessee’s application for any permit or governmental approval, provided that the City may elect to make same, in which case Lessee shall reimburse the City promptly upon demand for all costs of the City’s making same.

10.3 Security for Completion. Before commencing any proposed alteration, Lessee, if requested by the City, shall furnish to the City security reasonably satisfactory to the City guaranteeing to the City the completion of the proposed alteration within a reasonable time, free and clear of all liens and, if available, all ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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encumbrances, chattel mortgages, conditional bills of sale, security agreements and other claims and charges (other than those, if any, permitted hereunder) and in accordance with any plans and specifications theretofore approved by the City and, if required under any City encumbrance, by the City’s lender.

10.4 Additional Conditions. Lessee further covenants and agrees that no alterations will be made except in compliance with, and Lessee hereby covenants that it will comply with, each of the following provisions:

10.4.1 Before any alterations are begun, Lessee shall procure, at its own sole cost and expense, all necessary permits from all governmental authorities and shall, on demand, deliver photocopies thereof to the City;

10.4.2 All alterations shall be made in compliance and conformity with all applicable laws;

10.4.3 In making any alterations, Lessee shall not violate the terms or conditions of any insurance policy obtained or required pursuant to the provisions of this Lease affecting or relating to the Premises or any part thereof;

10.4.4 Promptly after the completion of any alterations, Lessee shall procure, at Lessee’s own sole cost and expense, all permits of governmental authorities for the completed alterations as may be required by any applicable laws, if any, and, on demand, shall promptly deliver photocopies thereof to the City; and

10.4.5 Lessee shall pay all costs, expenses and liabilities arising out of, in connection with, or by reason of, any alterations, and shall keep the Premises, Building and Project free and clear of all liens, claims and encumbrances in any way arising out of, in connection with, or by reason of, any alterations.

10.5 No City Contribution. The City shall not be required to make any contribution to the cost of any alterations or any part thereof, and Lessee covenants that the City shall not be required to pay any cost, expense or liability arising out of or in connection with or by reason of any alterations and shall indemnify and hold the City harmless from and against, and shall reimburse the City upon demand for, all such costs, expenses and liabilities (including, without limitation, reasonable attorneys’ fees and disbursements).

10.6 Notice. If Lessee makes any alterations to the Premises as provided in this Section 10, the alterations shall not be commenced until ten (10) days after the City has received written notice from Lessee stating the date the installation of the alterations is to commence so that the City can post and record an appropriate notice of nonresponsibility at the Premises.

10.7 Manner; Cost. Any alterations by Lessee shall be made in a manner that will not interfere with the quiet enjoyment of the other tenants in the building. Lessee shall pay prior to delinquency all cost for construction done by it or caused by it to be done on the Premises as permitted by this Lease. Lessee shall also reimburse the City upon demand for all costs the City incurs in reviewing any proposed alteration, including without limitation, architect, engineer and legal fees. Upon completion of ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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any such work, Lessee shall have recorded in the office of the County Recorder of Santa Clara County a Notice of Completion as required or permitted by law.

10.8 Mechanic’s Liens. Lessee shall keep the Premises, the Building and the Project free and clear of all mechanic’s liens resulting from construction done by or for Lessee.

10.9 Trade Fixtures. Lessee shall have the right at any time, and from time to time during the term of this Lease, at Lessee’s sole cost and expense, to install in or on the Premises such items, herein called “trade fixtures,” for use in Lessee’s trade or business as Lessee may, in its reasonable discretion, deem advisable, except that all such Lessee’s trade fixtures, furniture, furnishings, signs, and other personal property not permanently affixed to the Premises must be new when installed in, or attached to, the Premises. (All items identified on the Inventory of Fixtures, Exhibit B, shall be subject to all provisions of this Lease governing fixtures.) Any and all such trade fixtures shall remain the property of Lessee, and may be removed by Lessee at any time or times prior to the expiration or sooner termination of this Lease so long as Lessee is not in default hereunder, so long as Lessee shall immediately replace the same with similar personal property of comparable or better quality, except that Lessee shall not be obligated to replace such personal property at the expiration or earlier termination of this Lease, and Lessee shall immediately repair all damage caused by such removal and restore the Premises to substantially the condition they were in prior to the installation of such fixtures so that no trace remains of their presence at the Premises. At all times during the term of this Lease, Lessee shall maintain such trade fixtures in a good, first class condition.

10.10 Removal. Any trade fixtures described in this Section 10 that are not removed from the Premises by Lessee on the date of expiration or sooner termination, regardless of cause, of this Lease shall be deemed abandoned by Lessee and shall automatically become the property of the City and Lessee shall hold City harmless as to all claimants with respect to same.

10.11 Insurance. In the event that Lessee shall make any permitted improvements to the Premises under the provisions of this Section 10, Lessee agrees to carry such insurance as the City may reasonably request covering any such improvements, it being expressly understood and agreed that none of such improvements shall be insured by the City under the insurance it may carry upon the Building, nor shall the City be required to reconstruct any such improvements under any circumstances whatsoever, notwithstanding the provisions of Section 13.

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11. TAXES.

11.1 Personal Property Taxes. Lessee shall pay prior to delinquency all taxes, license fees and public charges assessed or levied against Lessee or Lessee’s Improvements, trade fixtures, furnishings, equipment and other personal property.

11.2 Assessments and Special Taxes. As a municipal corporation, City’s fee interest in the Project is exempt from the 1% general property tax levy and therefore property taxes will not be levied and will not be passed through to lessee or other tenants of the Project during City’s ownership of the Project. However, if and to the extent the Project or portion thereof is subject to special taxes or assessments, Lessee shall pay Lessee’s share of all such assessment and special taxes, if any, (other than possessory interest taxes on Lessee’s leasehold interest which shall be paid 100% by Lessee) which become due and payable to City on or before the later of ten (10) days prior to the delinquency thereof or three (3) days after the date on which Lessee receives a copy of the special tax or assessment bill and notice of City’s determination hereunder. Lessee’s liability to pay special taxes and assessments shall be prorated on the basis of a three hundred sixty-five (365) day year to account for any fraction or portion of a tax year included in the Lease term at the commencement or expiration of the Lease.

11.3 Revenue and Taxation Code Notice; Possessory Interest Taxes. Lessee specifically acknowledges it is familiar with §107.6 of the California Revenue and Taxation Code, realizes that a possessory interest subject to property taxes may be created, agrees to pay any such tax in full and without proration, and hereby waives any rights Lessee may have under said California Revenue and Taxation Code §107.6. City shall have no obligation to pay any possessory interest tax. No such possessory interest tax or any other tax payable by Lessee shall in any way reduce or substitute for the rent, charges or fees required to be paid as a condition of this Lease or as otherwise required by City.

12. HOLD HARMLESS/INDEMNIFICATION.

12.1 Indemnification. To the extent permitted by law, Lessee agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, agents, volunteers, and employees from and against any claim, injury, liability, loss, cost, and/or expense or damage, however same may be caused, including all costs and reasonable attorney’s fees in providing a defense to any claim arising therefrom for which City shall become legally liable arising from Lessee’s negligent, reckless, or wrongful acts, errors, or omissions with respect to or in any way connected with this Lease. Lessee shall give City immediate notice of any claim or liability hereby indemnified against.

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12.2 Waiver of Claims. Lessee waives any claims against City for injury to Lessee’s business or any loss of income therefrom, for damage to Lessee’s property, or for injury or death of any person in or about the Premises or the Project, from any cause whatsoever, except to the extent caused by City’s active negligence or willful misconduct.

13. DAMAGE, DESTRUCTION AND TERMINATION.

13.1 Uninsured Risks. If, during the Term of this Lease, the Premises or the Building are totally or partially destroyed from a risk not covered by the insurance described in Section 19.2, the City, at its option, may elect to terminate this Lease by giving notice to Lessee or may elect to restore the same. However, as to destruction which was caused by an act or omission of Lessee, its employees, agents, invitees or permittees, Lessee shall reimburse the City the full cost of the restoration of the Premises, Building shell, and all leasehold improvements therein under any circumstances. If the City elects to restore the Premises or the Building, Lessee shall be entitled to a proportionate reduction of rent while such repairs are being made. Such reduction shall be in an amount which bears the same proportion to the Base Rent as the floor area of that portion of Premises which has been damaged or is otherwise unusable by Lessee, bears to the total floor area of the Premises, except that if the damage or destruction is to more than 50% of the square footage of the Premises and Lessee ceases to occupy the Premises, such proportionate reduction shall be 100%.

13.2 Insured Risks.

13.2.1 If, during the Term of this Lease, the Premises or the Building are totally or partially destroyed from a risk covered by insurance described in Section 19.2, the City shall forthwith repair the same to substantially the same condition they were in immediately prior to the destruction and to the extent of proceeds received under such insurance, provided such repairs can be made within ninety (90) days under then existing law. Such destruction shall in no way annul or void this Lease, except that Lessee shall be entitled to a proportionate reduction of rent while such repairs are being made, including but not limited to the foregoing ninety days, such proportionate reduction to be equal to, and granted upon the City’s receipt of, the proceeds received by the City from any rental interruption insurance maintained by Lessee. Such reduction shall be in an amount which bears the same proportion to the minimum monthly rent as the floor area of that portion of the Premises which has been damaged or is otherwise unusable by Lessee bears to the total floor area of the Premises. If such repairs cannot be made in 90 days, the City may, at its option, make same within a reasonable time, this Lease continuing in full force and effect and the rent being proportionately reduced as aforesaid. In the event that the City does not so elect to make such repairs which cannot be made in 90 days, or such repairs cannot be made under such then existing law, this Lease shall terminate.
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13.2.2 Notwithstanding any other provision of this Lease, if, at any time during the term of this Lease, the Premises or the Building are totally or partially destroyed and (i) the total cost to repair the Premises or the Building exceeds One Hundred Thousand Dollars($100,000), or (ii) twenty percent (20%) of the Building is damaged or destroyed (and whether or not any portion of the Premises is also damaged or destroyed), the City may elect to terminate this Lease by written notice to Lessee. Determination of the extent of damage or destruction and the time for effectuating repair shall be made by the City based upon written appraisals and insurance adjustment reports, and shall be final and binding on the Parties.

13.3 Extent of Obligation. Notwithstanding the foregoing, the City shall not be required to repair, reconstruct, or restore damage or destruction by fire or other cause to any portion of the Premises constructed by or for Lessee, and Lessee shall at its sole cost and expense fully restore or replace its stock in trade, trade fixtures, furniture, furnishings, equipment, and other personal property. Lessee shall commence all such replacement and restoration work promptly following the occurrence of any such damage or destruction, and shall diligently prosecute such work to completion. Lessee hereby waives any statutory rights of termination which may arise by reason of any partial or total destruction of the Premises or any part thereof. Upon termination of the Lease under any of the provisions of this Section 13, the Parties shall be released thereby from any further obligations hereunder except for obligations which, prior to the date of such termination, had already accrued, and except as provided in the following sentence. In the event of such a termination, all proceeds from Lessee’s insurance which pertain to alterations or improvements to the Premises which would otherwise become the property of the City upon expiration or termination of this Lease shall be disbursed and paid to the City.
.

13.4 Force Majeure/Excusable Delay. Except as provided in this Lease, any act of City or Lessee required by this Lease to be done within a specified time shall be subject to Excusable Delay. Lessee’s obligation to pay Rent, however, is not excused by this Section. “Excusable Delay” means prevention, delay or stoppage due to strikes, lockouts, labor disputes, Acts of God, inability to obtain labor, materials or reasonable substitutes, governmental restrictions, governmental regulation, governmental controls, judicial orders, enemy, or hostile governmental actions, civil commotion, fire or other casualty, and other causes beyond the reasonable control of Lessee or City (excepting, however, City’s or Lessee’s financial inability), which shall excuse the performance by City or Lessee for a period equal to the prevention, delay or stoppage, except the obligations imposed with regard to rent to be paid by Lessee pursuant to this Lease. In the event any work performed by Lessee or Lessee’s contractors results in a strike, lockout, and/or labor dispute, the strike, lockout, and/or labor dispute shall not excuse the performance by Lessee of the provisions of this Lease.
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13.5 Waiver. City and Lessee waive the provisions of any statutes which relate to termination of leases when leased property is destroyed and agree that such event shall be governed by the terms of this Lease.

14. SIGNS.

Lessee shall not construct, maintain or place any signs, advertising or other exterior decoration (collectively, “Signs”) upon the exterior of the Premises or Project, or modify any existing Signs, without prior written consent of City. Any Sign that Lessee has the right to place, construct or maintain shall comply with all laws at all times during the term of this Lease, and Lessee shall obtain any approval required by such law. City makes no representation with respect to Lessee’s ability to obtain such approval.

15. ASSIGNMENT AND SUBLETTING.

15.1 City’s Consent Required. Lessee shall not assign this Lease, nor any interest therein, and shall not sublet or encumber the Premises or any part thereof, nor any right or privilege appurtenant thereto, nor allow or permit any other person(s) to occupy or use the Premises, or any portion thereof, without the prior written consent of City. This Lease shall be binding upon any permitted assignee or successor of Lessee. Consent by City to one assignment, subletting, occupation or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation or use by another person. No assignment, subletting, or encumbrance by Lessee shall release it from or in any way alter any of Lessee’s obligations under this Lease. Any assignment, subletting, encumbrances, occupation or use contrary to the provisions of this Lease shall be void and shall constitute breach of this Lease. City may assign any of its rights hereunder without notice to Lessee.

15.2 No Release of Lessee. No subletting or assignment as approved by City shall release Lessee of Lessee’s obligation or alter the primary liability of Lessee to pay the rent and to perform all other obligations by Lessee hereunder. The acceptance of rent by City from any other person shall not be deemed to be a waiver by City of any provision hereof. In the event of default by any approved assignee or other successor of Lessee in the performance of any of the terms hereof, City may proceed directly against Lessee without the necessity of exhausting remedies against such assignee or successor.

16. DEFAULTS; REMEDIES.

16.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default or breach of this Lease by Lessee:

16.1.1 Abandonment of the Premises by Lessee as defined by California Civil Code § 1951.3;

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16.1.2 Failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of ten (10) business days after written notice thereof from City to Lessee. In the event City serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes, such Notice to Pay Rent or Quit shall also constitute the notice required by this subparagraph;

16.1.3 Failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease in any material respect to be observed or performed by Lessee where such failure shall continue for a period of thirty (30) days after written notice thereof from City to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion;

16.1.4 Making by Lessee of any general arrangement or assignment for the benefit of creditors; Lessee’s becoming a “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); the appointment of a bankruptcy trustee or receiver to take possession of all or substantially all of Lessee’s assets located at or on the Premises or of Lessee’s interest in this Lease where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of all or substantially all of Lessee’s assets located at or on the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days.

16.2 Remedies. In the event of any material default or breach by Lessee, City may at any time thereafter, following any notice required by statute, and without limiting City in the exercise of any right or remedy which City may have by reason of such default or breach:

16.2.1 Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises and all alterations to City. In such event, City shall be entitled to recover from Lessee all damages incurred by City by reason of Lessee’s default including, but not limited to, the cost of recovering possession of the Premises and alterations, expenses of reletting, including necessary renovation and alteration of the Premises and alterations, reasonable attorneys’ fees, the worth at the time of the award of the unpaid rent that had been earned at the time of termination of this Lease and 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 such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided.

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16.2.2 Maintain Lessee’s right to possession, in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event, City shall be entitled to enforce all of City’s rights and remedies under this Lease, including the right to recover rent as it becomes due hereunder.

16.2.3 Pursue any other remedy now or hereafter available to City under the laws or judicial decisions of the State of California.

16.3 No Relief from Forfeiture after Default. Lessee waives all rights of redemption or relief from forfeiture under California Code of Civil Procedure §§ 1174 and 1179, and any other present or future law, in the event Lessee is evicted or City otherwise lawfully takes possession of the Premises by reason of any default or breach of this Lease by Lessee.

17. INTEREST ON PAST-DUE OBLIGATIONS.

Except as expressly provided herein, any amount due City when not paid when due shall bear interest at the lesser of ten percent (10%) per year or the maximum rate then allowable by law from the date due.

18. CITY’S ACCESS.

18.1 Access for Inspection. City and City’s agents shall have the right to enter the Premises at reasonable times, upon not less than twenty-four (24) hours prior notice to Lessee or less in case of an emergency), for the purpose of inspecting same, showing same to prospective purchasers, lenders, lessees or others, and making such alterations, repairs, improvements or additions to the Premises as City may deem necessary. City may at any time place on or about the Premises any ordinary “For Sale” signs and City may at any time during the last one hundred twenty (120) days of the term hereof place on or about the Premises any ordinary “For Lease” signs, all without rebate of rent or liability to Lessee.

18.2 No Warranty. Except as otherwise stated in this Lease, Lessee hereby acknowledges that neither the City nor any employees or agents of the City has made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of said Premises and Lessee acknowledges that Lessee assumes all responsibility regarding the Occupational Safety and Health Act, the legal use and adaptability of the Premises and compliance with all applicable laws and regulations in effect during the term of this Lease.

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18.3 Security Measures. City shall have the right to require a reasonable security system, device, operation or plan be installed and implemented to protect the Premises or any alterations. Should City, in its sole discretion, require Lessee to install such a security system, Lessee agrees to bear the sole cost and expense of any security system, device, operation or plan and the installation and implementation thereof. Lessee shall obtain City’s prior approval before installing or implementing any security system, device, operation or plan.

19. INSURANCE.

19.1 Lessee Insurance. Lessee’s responsibility for the Premises begins immediately upon the Commencement Date and Lessee, at its sole cost and expense, and at no cost to City, shall provide and maintain in full force and effect during the entire term of this Lease insurance coverage in an amount(s) and in a form acceptable to City as set forth in Exhibit C attached hereto and incorporated herein by reference. Said policies shall be maintained with respect to Lessee’s employees, if any, and all vehicles operated on the Premises. The policies shall include the required endorsements, certificates of insurance and coverage verifications as described in Exhibit C. Lessee also agrees to secure renter’s liability insurance.

19.2 Fire Insurance on Building. City shall maintain insurance (or self-insurance through City’s joint pool coverage plan) covering the building. Lessee shall reimburse City Lessee’s pro rata share of the cost of insurance or joint pool self- insurance coverage(s) provided by the City upon delivery of the insurance (or joint pool self-insurance) premium invoice or, if otherwise requested by City, as part of the other Common Area Expenses pursuant to Section 6.6.

20. CONTRACT FOR ADMINISTRATIVE SERVICE.

To the extent that this Lease is a contract for administrative services, the City Council entered into such agreement upon recommendation of the City Manager pursuant to Section 1108 of the City’s Charter. The policy decision with respect to the services was made by the City Council and not by the City Manager.

21. DISPUTE RESOLUTION.

21.1 Unless otherwise mutually agreed to or as provided in Section 21.5, any controversies between Lessee and City regarding the construction or application of this Lease, and claims arising out of this Lease or its breach shall be submitted to mediation within thirty (30) days of the written request of one Party after the service of that request on the other Party.

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21.2 The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request the Superior Court of Santa Clara County to appoint a mediator. The mediation meeting shall not exceed one day (eight (8) hours). The Parties may agree to extend the time allowed for mediation under this Lease.

21.3 The costs of mediation shall be borne by the Parties equally.

21.4 Except as provided in Section 21.5, mediation under this section is a condition precedent to filing an action in any court. In the event of litigation arising out of any dispute related to this Lease, the Parties shall each pay their respective attorney’s fees, expert witness costs and cost of suit, regardless of the outcome of the litigation.

21.5 Nothing in this Section shall require the City to mediate any eviction, unlawful detainer, or other exercise of remedies following the expiration of the Term of this Lease as provided in Section 2 or any termination of this Lease under Section 16.

22. PAYMENTS/PARTIAL PAYMENTS.

Payments shall be effective upon receipt. City may apply any payment received from Lessee at any time against any obligation due and owing by Lessee under this Lease, regardless of any statement appearing on or referred to in any remittance from Lessee or any prior application of such payments. Acceptance by City of a partial payment of rent or other charges shall not be considered or construed to waive any right of City or affect any notice of legal proceedings, unless both Parties shall agree otherwise in writing. The receipt by City of a partial payment of any amount due to City endorsed as payment in full will be deemed to be a partial payment only, and any endorsements or statements on the check or any letter accompanying the check shall not be deemed an accord and/or satisfaction, and, notwithstanding said endorsements, City may accept and deposit said check without prejudice to its right to recover the balance. Lessee’s obligation (without prior notice or demands) to pay rent and all other amounts due hereunder shall be absolute and unconditional, and not subject to any abatement, set off, defense, recoupment or reduction.

23. NON-LIABILITY OF OFFICIALS AND EMPLOYEES OF THE CITY.

No official or employee of City shall be personally liable for any default or liability under this agreement.

24. NON-DISCRIMINATION.

Lessee covenants it shall not discriminate based upon race, color, creed, religion, sex, marital status, age, handicap, national origin or ancestry in any activity pursuant to this agreement.
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25. CONFLICT OF INTEREST.

Lessee shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this agreement.

26. MEMORANDUM OF LEASE.

Lessee shall not record this Lease or a memorandum thereof, or any other reference to this Lease, without the prior written consent of the City. Lessee, upon the request of the City, shall execute and acknowledge a Memorandum of Lease for recording in the official records of Santa Clara County. Upon termination or expiration of this Lease, Lessee shall execute and record a quitclaim deed as to its leasehold interest.

27. ESTOPPEL CERTIFICATE.

Lessee shall, from time to time, upon at least ten (10) days prior written notice from City, execute, acknowledge and deliver to City a statement in writing (i) certifying this Lease is unmodified and in full force and effect, or, if modified, stating the nature of the modification and certifying that the Lease, as modified, is in full force and effect, and the date to which the rental and other charges, if any, have been paid; and, (ii) acknowledging that there are not to Lessee’s knowledge, any defaults, or stating if any defaults are claimed, any statement may be relied upon by any prospective purchaser or encumbrancer of the Project.

28. LIENS.

Lessee agrees at its sole cost and expense to keep the Premises, Building and Project free and clear of any and all claims, levies, liens, encumbrances or attachments.

29. RELOCATION BENEFITS WAIVER.

29.1 Relocation Laws Acknowledgement. Lessee is informed of, and is aware that following expiration or termination of this Lease, City intends to demolish the exiting Building and explore redevelopment of the Project property with other uses.

Lessee further acknowledges that under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 USC 4601, et seq.) and its regulations (49 CFR Part 24) and the Relocation Assistance Act (Cal. Gov. Code § 7260, et seq.), as may be amended, (collectively, “Relocation Laws”) a qualifying “displaced person or business” who is displaced by a public agency-initiated redevelopment project, such as the one proposed by City, is entitled to monetary and non-monetary benefits including relocation advisory assistance, a business reestablishment payment, assistance with costs to search for a replacement location for the business, and rent differential payments to the extent the tenant’s rent in a new location is higher than the tenant’s current rent (collectively, “Potential Relocation Benefits”).
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29.2 Lessee Representations and Warranties. Lessee represents and warrants to City as follows: (i)Lessee had no option or other rights to extend the term of the Prior Lease beyond September 30, 2021; (ii) Lessee’s Prior Lease terminated upon the termination of the Ground Lease and Lessee had no right to remain in occupancy of the Premises beyond the expiration dates of the Prior Lease and Ground Lease which were co-terminus; (iii) Lessee’s right to occupy the Premises under this Lease will commence following the termination of the Ground Lease and City’s acquisition of an ownership interest in the Building from the former ground lessee; (iv) Lessee is an after-acquired tenant of City and not a potential “displaced person or business” under Relocation Laws (defined below); and (v) City’s willingness to enter into this new Lease with Lessee is contingent upon Lessee’s agreement to waive Potential Relocation Benefits as provided herein . Lessee further represents and warrants to City that Lessee’s relocation from the Property upon expiration or termination of this Lease will be a result of the expiration of the Prior Lease and this Lease each of which occurred or were anticipated prior to Lessee entering into this Lease with City and therefore Lessee is not a “displaced person or business” under Relocation Laws.

29.3 Waiver and Release of All Claims. In exchange for City’s agreements under this Lease, Lessee hereby waives and releases all rights or claims that Lessee has or may have in the future against City or its elected or appointed officials, employees, agents, attorneys or consultants, or any federal or state agency which may provide funding in connection with City’s future redevelopment of the Project with other uses (collectively, the “Released Parties”) under the Relocation Laws as a result of, arising out of, or connected with Lessee’s departure from the Premises and/or the City’s redevelopment of the Project in the future, including but not limited to any claims for Potential Relocation Benefits.

29.4 Covenant Not to Sue. Lessee covenants and agrees that it will not bring, commence, maintain or prosecute, directly or indirectly, any action at law or proceeding in equity or any legal administrative proceeding or any claim for damages or any other relief against any of the Released Parties, based in whole or in part on any claim of eligibility for Potential Relocation Benefits. The waiver and release set forth in Section 29.3 above may, and shall be plead, as a full and complete defense to, and may be used as a basis for an injunction against any action, suit or proceeding which may be instituted, prosecuted, or maintained in breach of the covenants contained in this Section 29.

By its initials below, Lessee hereby acknowledges and confirms its agreement to the waivers, releases, covenants and agreements of this Section 29. _____________ ____________
Lessee Initials Lessee Initials
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30. VACATING.

Upon termination of the tenancy, Lessee shall completely vacate the Premises, Building and Project, including the removal of any and all of its personal property and fixtures (whether or not identified on the Inventory of Fixtures (Exhibit B). Before departure, Lessee shall return keys and the Premises (including Lessee Improvements) to City in good, clean and sanitary condition, reasonable wear and tear excepted. Lessee shall allow City to inspect the Premises to verify the condition of the Premises and its contents.

31. ABANDONMENT.

Lessee’s absence from the Premises for three (3) consecutive days, without prior notice, during which time rent or other charges are delinquent, shall be deemed abandonment of the Premises and a material default by Lessee entitling City to the remedies in Section 16 above, including the right to terminate this Lease. In the event of such termination, City shall be authorized to enter and take possession and to remove and dispose of the property of Lessee and its employees, agents, contractors and invitees without any liability whatsoever to City.

32. PROPRIETARY AND GOVERNMENTAL ROLES; ACTIONS BY CITY.

Except where clearly and expressly provided otherwise in this Lease, the capacity of the City in this Lease shall be as owner and lessor of property only (“Proprietary Capacity”), and any obligations or restrictions imposed by this Lease on the City shall be limited to that capacity and shall not relate to, constitute a waiver of, supersede or otherwise limit or affect its governmental capacities, including enacting laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and administrative or enforcement functions pursuant to federal, state or local law (“Governmental Capacity”).

When acting in its Proprietary Capacity, discretionary actions may be undertaken by the City Manager or other designees as designated by the City Manager to the extent otherwise provided for in this Lease. In addition, nothing in this Lease shall supersede or waive any discretionary or regulatory approvals required to be obtained from the City under applicable law, nor guarantee that the City, in its Governmental Capacity, will grant any particular request for a license, permit or other regulatory approval. Lessee understands that the City may grant or deny such request in its sole discretion, and may impose such terms and conditions as it deems consistent with that discretion and applicable laws.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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33. HOLDOVER.

Lessee has no right to retain possession of the Premises or any portion thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over after the expiration of the term without executing a new lease, then such holding over shall be construed as a tenancy from month-to-month, subject to all conditions, provisions and obligations of this Lease insofar as they are applicable to a month-to-month tenancy, except that the Base Rent portion of the rent shall be increased to 150% of the amount of the Base Rent payable immediately prior to the expiration or termination of the Lease, as the case may be. Nothing contained herein shall be construed as consent of City to any holding over by Lessee.

34. NOTICES.

All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:

City of Santa Clara
Attention: City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Or by facsimile at (408) 241-6771

And to Lessee addressed as follows:

Lessee’s Notice Address:

Name: Supakam Corp.

Address: 41769 Paseo Padre Parkway
Fremont, CA 94539
Phone






Notices may be served upon Lessee in person or by first class mail or by certified mail to Lessee whether or not said mailing is accepted by Lessee. If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed. The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 P.M. on a Friday shall be deemed to have been transmitted on the following Monday. These addresses shall be used for service of process.

35. TIME.

Time shall be of the essence in this Lease.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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36. MISREPRESENTATIONS.

Any statements submitted to City in the Application to Rent by Lessee (if applicable) are considered inducements to execute this Lease. Misrepresentations shall entitle City to terminate this Lease at any time.

37. AMENDMENTS.

It is mutually agreed that no oral Leases have been entered into and that no alteration or variation of the terms of this Lease shall be valid unless made in writing and signed by the Parties to this Lease.

38. INDEPENDENT LEGAL ADVICE.

Each Party represents and warrants to the other the following: they have carefully read this Lease, and in signing this Lease, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Lease, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Lease; and, they have freely signed this Lease without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Lease, and without duress or coercion, whether economic or otherwise.

39. SERVICE CHARGE.

A service charge of twenty dollars ($20.00) will be made for each check that must be resubmitted for payment.

40. SIGNING AUTHORITY.

If this Lease is not signed by all Lessees named herein, the person actually signing warrants that he/she has the authority to sign for the others.

41. CHANGE OF LOCKS.

Lessee may install new locks on all exterior doors. Lessee shall advise City of such action and shall provide City with keys to said locks. Lessee shall also deliver to City the old locks with keys. Upon termination, Lessee shall leave new locks that shall become the property of City.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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42. CAPTIONS/RECITALS.

The captions of the various sections, paragraphs and subparagraphs of this Lease are for convenience only and shall not be considered or referred to in resolving questions of interpretation. All of the recitals of this Lease, and the defined terms set forth therein, are incorporated into and made a part of this Lease by this reference.

43. REPAIRS.

Except as expressly provided in this Lease, City shall have no obligation to repair or maintain the Premises or any alterations thereto or facilities placed therein. Lessee expressly waives the benefit of any statute now or hereinafter in effect which would otherwise afford Lessee the right to make repairs at City’s expense or to terminate this Lease because of City’s failure to keep Premises in good order, condition and repair.

Lessee shall not call on City to make any improvements or repairs to said property of any kind whatsoever.

44. SURRENDER OF LEASE NOT MERGER.

The voluntary or other surrender of this lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of City, terminate all or any existing subleases or subtenancies, or may, at the option of City, operate as an assignment to it of any and all such subleases or subtenancies.

45. INTEGRATED DOCUMENT; AMENDMENTS.

This Lease, including any exhibits attached hereto, embodies the entire agreement between City and Lessee and its terms and conditions. No other understanding, agreements, conversations or otherwise, with any officer, agent or employee of City prior to execution of this Lease shall affect or modify any of the terms or obligations contained in any documents comprising this Lease. Any such verbal agreement shall be considered as unofficial information and in no way binding upon City. This Lease may be modified only by a written amendment duly executed by the Parties to this Lease, pursuant to Section 37 entitled “Amendments.” All agreements with City are subject to approval of the City Council before City shall be bound thereby.

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46. WAIVER.

Waiver by City of one or more conditions of performance or any breach or condition under this Lease shall not be construed as a waiver(s) of any other condition of performance or subsequent breaches or conditions. The subsequent acceptance by a Party of the performance of any obligation or duty by another Party shall not be deemed to be a waiver of any term or condition of this Lease. The exercise of any remedy, right, option or privilege hereunder by City shall not preclude City from exercising the same or any and all other remedies, rights, options and privileges hereunder and City’s failure to exercise any remedy, right, option or privilege at law or equity, or otherwise which City may have, shall not be construed as a waiver.

47. INTERPRETATIONS.

In construing or interpreting this Lease, the word “or” shall not be construed as exclusive and the word “including” shall not be limiting. The Parties agree that this Lease shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against any other Party.

48. SEVERABILITY CLAUSE.

If any provision of this Lease is held to be illegal, invalid or unenforceable in full or in part, for any reason, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid and enforceable, and the other provisions of this Lease shall not be affected thereby.

49. GOVERNING LAW.

This Lease shall be governed and construed in accordance with the statutes and laws of the State of California.

50. VENUE.

In the event that suit shall be brought by any Party to this Lease, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara.

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51. COMPLIANCE WITH LAWS.

Lessee shall not use the Premises or permit anything to be done in or about the Premises which will in any way conflict with any law, statute, zoning restriction, ordinance or governmental law or rule, regulation, or requirement, including any Hazardous Materials laws or regulations, of any duly constituted public authorities now in force or which may hereafter be enacted or promulgated, or which will subject City to any liability for injury to any person or property by reason of any business operation being conducted in or about the Premises. To the extent required due to Lessee’s specific use of the Premises, alterations of the Premises made by Lessee, or as a result of Lessee’s application for permits or authorizations, Lessee shall, at its sole cost and expense, promptly comply with all applicable laws, statutes and ordinances, governmental rules, regulations, orders, permits, licenses, approvals, authorizations, federal and state disability laws, and other requirements including the Americans with Disabilities Act (“ADA”) of 1990 (42 U.S.C. 12101 et seq.), together with any amendment thereto or regulations promulgated under any of the foregoing, and any state or local ordinances or codes enacted pursuant thereto, and with all requirements of any board or fire insurance underwriters or other similar bodies, now or hereafter constituted, relating to or affecting the condition, use, or occupancy of the Premises by Lessee, any improvements or alterations made by, on behalf of, or for Lessee, or any other Lessee acts or omissions.

The final judgment of any court of competent jurisdiction or the admission of Lessee in any action against Lessee, whether City be a party thereto or not, that Lessee has violated any laws shall be conclusive of that fact as between City and Lessee. Lessee, within ten (10) days after receipt, shall provide City with copies of any notices it receives regarding a material violation or alleged material violation of any Laws. Lessee shall also cause its agents, contractors, subcontractors, employees, customers, and subtenants to comply with all applicable laws.

52. COUNTERPARTS; ELECTRONIC SIGNATURES.

This Lease may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument; and, the Parties agree that signatures on this Lease, including those transmitted electronically by email or facsimile, shall be sufficient to bind the Parties.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$",7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

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53. ACCESSIBILITY; DISABILITY LAWS.

53.1 The Premises have not undergone an inspection by a Certified Access Specialist.

53.2 “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject 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 the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”

53.3 Since compliance with the ADA and other federal and state disability laws (collectively, “Disability Laws”) is dependent upon Lessee’s specific use of the Premises, City makes no warranty or representation as to whether or not the Premises comply with Disability Laws. In the event that Lessee’s use of the Premises requires modifications or additions to the Premises in order to be in compliance with Disability Laws, Lessee agrees to make any such necessary modifications and/or additions at Lessee’s sole cost and expense.

54. OFAC COMPLIANCE.

Lessee represents and warrants to City that Lessee is not a party with whom City is prohibited from doing business pursuant to the regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury, including those parties named on OFAC’s Specially Designated Nationals and Blocked Persons List.

Lessee is currently in compliance with, and shall at all times during the term of this Lease remain in compliance with, the regulations of OFAC and any other governmental requirement relating thereto. In the event of any violation of this section, City shall be entitled to immediately terminate this Lease and take such other actions as are permitted or required to be taken under law or in equity. LESSEE SHALL DEFEND,

INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND

ALL CLAIMS, DAMAGES, LOSSES, RISKS, LIABILITIES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COSTS) INCURRED BY CITY ARISING FROM OR RELATED TO ANY BREACH OF THE FOREGOING CERTIFICATIONS.

These indemnity obligations shall survive the expiration or earlier termination of this Lease.

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55. NO BROKERAGE.

City is represented in this transaction by Eugene Burger Management Corporation (“City’s Agent”). Brokerage fees, commissions or other payments owed to City’s Agent, if any, in connection with this Lease transaction shall be paid by City per the terms of a separate agreement between City and City’s Agent. Lessee represents and warrants to City that Lessee is represented in this transaction by Alex Ayala Sr. (“Lessee’s Agent”).

Fees, if any, payable to Lessee’s Agent, if applicable, shall be paid pursuant to separate agreement(s) between City’s Agent and Lessee’s Agent or between Lessee and Lessee’s Agent. Lessee shall indemnify and defend City from and against any claims made by Lessee’s Agent or any other person or entity purporting to represent Lessee in this transaction for any finder’s fee, brokerage fee, commission or other payment claiming through Lessee or its affiliates with respect to the execution of this Lease or the consummation of the transaction contemplated hereby.

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[Signatures on next page]
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CITY OF SANTA CLARA, CALIFORNIA, a chartered California municipal corporation

Dated: ________________________
APPROVED AS TO FORM:

By:

______________
Office of the City Attorney

DEANNA J. SANTANA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210

Fax: (408) 241-6771
“CITY”
Supakam Corp.

Togo’s Sandwiches

Dated: December 13, 2021

By:

(Signature of Person executing the Agreement on behalf of Lessee)
Name: Amith Kumar Chalasani
Title: President
Local Address: 41769 Paseo Padre Pkwy
Fremont, CA 94539
Email Address: [email protected]
Telephone: (408) 420-2986
Fax: ( )
“LESSEE”

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rpt:~
_l.{ 5348C30C1317449 ...
________ ________
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INITIALS INITIALS
© 2017 AIR CRE. All Rights Reserved. Last Edited: 12/20/2021 12:34 PM ADD-1.03, Revised 10-22-2020 Page 1 of 1

ADDENDUM TO LEASE
Date: December 20, 2021
By and Between
Lessor: City of Santa Clara, Califonia, a chartered California municipal Corporation ("City")
Lessee: Supakam Corp Inc, Togo's
Property Address: 1000 Lafayette Street Unit A, Santa Clara, CA 95050 (street address, city, state, zip)
Paragraph: 56 - 58
In the event of any con flict between the provisions of this Addendum and the printed provisions of the Lease, this Addendum shall control.

AIR CRE * h Ʃps://www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in wri Ɵng.

56. This Addendum takes effect on October 1, 2021.

57. Rent Schedule:

Monthly Base Rent shall be adjusted as follows:

A. Year 1 - $3,595.00 per Month + NNN (CAM)
Year 2 - $3,595.00 per Month + NNN (CAM)

58. Lessee agrees to pay monthly Base rent in the amount of $3,595.00 per month for the months of October 2021, and November 2021 and December 2021 totaling $10,785.00 prior to execution of this rental Lease dated December 7, 2021.
,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&# AIRCRE
contracts
________ ________
________ ________

INITIALS INITIALS
© 2017 AIR CRE. All Rights Reserved. Last Edited: 12/20/2021 12:34 PM GR-3.22, Revised 10-22-2020 Page 1 of 2

GUARANTY OF LEASE
Paragraph 59
WHEREAS, City of Santa Clara, Califonia, a chartered California municipal Corporation ("City") ,h e r e i n aŌer "Lessor", and Supakam Corp Inc, Togo's ,h e r e i n aŌer "Lessee", are about to execute a document en Ɵtled "Lease" dated December 20, 2021 concerning the premises commonly known as (street address, city, state, zip) 1000 Lafayette Street Unit A, Santa Clara, CA 95050 wherein Lessor will lease the premises to Lessee, and WHEREAS, Amithkumar Chalasani hereinaŌer "Guarantors" have a financial interest in Lessee, and WHEREAS, Lessor would not execute the Lease if Guarantors did not execute and deliver to Lessor this Guaranty of Lease.

NOW THEREFORE, in considera Ɵon of the execuƟon of said Lease by Lessor and as a material inducement to Lessor to execute said Lease, Guarantors hereby jointly, severally, uncondiƟonally and irrevocably guarantee the prompt payment by Lessee of all rents and all other sums payable by Lessee under said Lease and the faithful and prompt performance by Lessee of each and every one of the terms, condi Ɵons and covenants of said Lease to be kept and performed by Lessee.

It is specifically agreed by Lessor and Guarantors that: (i) the terms of the foregoing Lease may be modi fied by agreement between Lessor and Lessee, or by a course of conduct, and (ii) said Lease may be assigned by Lessor or any assignee of Lessor without the consent of or no Ɵce to Guarantors and that this Guaranty shall guarantee the performance of said Lease as so modi fied.

This Guaranty shall not be released, modi fied or affected by the failure or delay on the part of Lessor to enforce any of the rights or remedies of the Lessor under said Lease.

No noƟce of default by Lessee under the Lease need be given by Lessor to Guarantors, it being speci fically agreed that the guarantee of the undersigned is a conƟnuing guarantee under which Lessor may proceed immediately against Lessee and/or against Guarantors following any breach or default by Lessee or for the enforcement of any rights which Lessor may have as against Lessee under the terms of the Lease or at law or in equity.

Lessor shall have the right to proceed against Guarantors following any breach or default by Lessee under the Lease without first proceeding against Lessee and without previous no Ɵce to or demand upon either Lessee or Guarantors.

Guarantors hereby waive (a) no Ɵce of acceptance of this Guaranty. (b) demand of payment, presenta Ɵon and protest, (c) all right to assert or plead any statute of limitaƟons relaƟng to this Guaranty or the Lease, (d) any right to require the Lessor to proceed against the Lessee or any other Guarantor or any other person or enƟty liable to Lessor , (e) any right to require Lessor to apply to any default any security deposit or other security it may hold under the Lease, (f) any rig ht to require Lessor to proceed under any other remedy Lessor may have before proceeding against Guarantors, (g) any right of subroga Ɵon that Guarantors may have against Lessee.

Guarantors do hereby subordinate all exis Ɵng or future indebtedness of Lessee to Guarantors to the obliga Ɵons owed to Lessor under the Lease and this Guaranty.

If a Guarantor is married, such Guarantor expressly agrees that recourse may be had against his or her separate property for all of the obliga Ɵons hereunder .

The obligaƟons of Lessee under the Lease to execute and deliver estoppel statements and financial statements, as therein provided, shall be deemed to also require the Guarantors to provide estoppel statements and financial statements to Lessor . The failure of the Guarantors to provide the same to Lessor shall cons Ɵtute a default under the Lease.

The term "Lessor" refers to and means the Lessor named in the Lease and also Lessor's successors and assigns. So long as Lessor's interest in the Lease, the leased premises or the rents, issues and pro fits therefrom, are subject to any mortgage or deed of trust or assignment for security, no acquisi Ɵon by Guarantors of the Lessor's interest shall affect the conƟnuing obligaƟon of Guarantors under this Guaranty which shall nevertheless con Ɵnue in full force and e ffect for the benefito f t h e mortgagee, beneficiary, trustee or assignee under such mortgage, deed of trust or assignment and their successors and assigns.

The term "Lessee" refers to and means the Lessee named in the Lease and also Lessee's successors and assigns.

Any recovery by Lessor from any other guarantor or insurer shall first be credited to the porƟ on of Lessee's indebtedness to Lessor which exceeds the maximum liability of Guarantors under this Guaranty.

No provision of this Guaranty or right of the Lessor can be waived, nor can the Guarantors be released from their obliga Ɵons except in wriƟng signed by the Lessor .

Any liƟgaƟon concerning this Guaranty shall be ini Ɵated in a state court of competent jurisdic Ɵon in the county in which the leased premises are located and the Guarantors consent to the jurisdic Ɵon of such court. This Guaranty shall be governed by the laws of the State in which the leased premises are located and for the purposes of any rules regarding con flicts of law the par Ɵes shall be treated as if they were all residents or domiciles of such State.

In the event any ac Ɵon be brought by said Lessor against Guarantors hereunder to enforce the obliga Ɵon of Guarantors hereunder , the unsuccessful party in such acƟon shall pay to the prevailing party therein a reasonable a Ʃorney's fee. The a Ʃorney's fee award shall not be computed in accordance with any court fee schedule, but shall be such as to full reimburse all a Ʃorneys' fees reasonably incurred.

If any Guarantor is a corpora Ɵon, partnership, or limited liability company, each individual execu Ɵng this Guaranty on said en Ɵty's behalf represents and warrants that he or she is duly authorized to execute this Guaranty on behalf of such en Ɵty. Signatures to this Guaranty accomplished by means of electronic ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&# AIRCRE
contracts
________ ________
________ ________

INITIALS INITIALS
© 2017 AIR CRE. All Rights Reserved. Last Edited: 12/20/2021 12:34 PM GR-3.22, Revised 10-22-2020 Page 2 of 2
signature or similar technology shall be legal and binding.

If this Form has been filled in, it has been prepared for submission to your a Ʃorney for his approval. No representa Ɵon or recommendaƟon is made by AIR CRE, the real estate broker or its agents or employees as to the legal su fficiency, legal effect, or tax consequences of this Form or the transac Ɵon relaƟng thereto.

GUARANTORS
Amithkumar Chalasani
Executed At: Docusign
On:

By:

Name Printed: Amithkumar Chalasani
Title: President
Address: 41769 Paseo Padre Parkway
Fremont, CA 94539
By:

Name Printed:

Title:

Address:

AIR CRE * h Ʃps://www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in wri Ɵng. ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" 


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5348C30C1317 449 ...
-=-=- -====--

Lease Agreement/ Supakam Corp. Exhibit A
Rev.: 02-01-15
OAK #4822-6577-3562 v9

COMMERCIAL PROPERTY LEASE AGREEMENT

BY AND BETWEEN

CITY OF SANTA CLARA, CALIFORNIA
AND
Supakam Corp.

EXHIBIT A

Address: 1000 Lafayette Street, Santa Clara, CA 95050
APN: 269-22-089
Lot Size: 1.319 AC
Legal Brief Description: CITY: SANTA CLARA LOT B RECORDER'S BOOK 437 PAGE 46

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Lease Agreement/ Supakam Corp. Exhibit B Page 1 of 1
Rev.: 02-01-15
OAK #4822-6577-3562 v9

COMMERCIAL PROPERTY LEASE AGREEMENT

BY AND BETWEEN

CITY OF SANTA CLARA, CALIFORNIA
AND
Supakam Corp.

EXHIBIT B

INVENTORY OF FIXTURES

1. 1- Commercial oven

2. 2 - Microwave

3. 16 - tables

4. 64 - chairs

5. 2 – Hung picture frames

6. 1 – Washer

7. 1 - Dryer

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Lease Agreement/ Supakam Corp. Exhibit C Page 1 of 2
Rev.: 02-01-15
OAK #4822-6577-3562 v9

COMMERCIAL PROPERTY LEASE AGREEMENT

BY AND BETWEEN

CITY OF SANTA CLARA, CALIFORNIA
AND
Supakam Corp.

EXHIBIT C

INSURANCE REQUIREMENTS

Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Lessee’s operation and use of the leased premises. The cost of such insurance shall be borne by the Lessee.

A. MINIMUM SCOPE AND LIMIT OF INSURANCE

Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): In surance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.

2. Workers ’ Compensation Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. (This applies to lessees with employees).

3. Property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision.

If the Lessee maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Lessee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

B. OTHER INSURANCE PROVISIONS:

The insurance policies are to contain, or be endorsed to contain, the following provisions:

1. Additional Insured Status: The City, its offi cers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Lessee including materials, parts, or ,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&#

Lease Agreement/ Supakam Corp. Exhibit C Page 2 of 2
Rev.: 02-01-15
OAK #4822-6577-3562 v9
equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Lessee’s insurance (at least as broad as ISO Form CG 20 10).

2. Primary Coverage: For any claims related to this contract, the Less ee’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Lessee’s insurance and shall not contribute with it.

3. Legal Liability Coverage: The property ins urance is to be endorsed to include Legal Liability Coverage (ISO Form CP 00 40 04 02 or equivalent) with a limit equal to the replacement cost of the leased property.

4. Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.

5. Waiver of Subrogation: Lessee hereby grants to City a waiver of any right to subrogation which any insurer of said Lessee may acquire against the City by virtue of the payment of any loss under such insurance. Lessee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

6. Acceptability of Insurers: Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A: VII, unless otherwise acceptable to the City.

7. Self-Insured Retentions: Self-insured retenti ons must be declared to and approved by the City. The City may require the Lessee to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.

8. Verification of Coverage: Lessee shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before occupying the premises. However, failure to obtain the required documents prior to the work beginning shall not waive the Lessee’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.

9. Special Risks or Circumstances: City reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

,7190436Ā-6:25782Ā/,)Ā-$#'$&.%Ȁ'.+(Ȁ$-."Ȁ(*,-Ȁ& .&-%*-!$$" ,7190436Ā-6:25782Ā/,)Ā%,%''-#"Ȁ($!*Ȁ#$# Ȁ'"#$Ȁ-+ .&!, !&# -82:1547Ā.7;36893Ā0-*Ā&+ )!&(,Ȁ,,(+Ȁ$'+#Ȁ)/#.Ȁ.#.-"# !.-%& 


AIRCRE
contracts

DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIP
(As required by the Civil Code)
When you enter Into a discussion with a real estate agent regarding a real estate transaction, you should from the outset understand what type of agency relationship or representation you wish to have with the agent in the transaction.

SELLER'S AGENT
A Seller's agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller's agent or a subagent of that agent has the following affirmative obllgattons:

To the Seller: A fiduciary duty of utmost care, Integrity, honesty and loyalty In dealings with the Seller.

To the Buyer and the Seller:
(al DIiigent exercise of reasonable sklll and care In performance of the agent's duties. (bl A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirablllty of the property that are not known to, or within the diligent attention and observation of, the parties.

An agent Is not obllgated to reveal to either party any confldenttal information obtained from the other party that does not Involve the affirmative duties set forth above.

BUYER'S AGENT
A Buyer's agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situations, the agent Is not the Seller's agent, even If by agreement the agent may receive compensation for services rendered, either In full or In part from the Seller. An agent acting only for a Buyer has the following affirmative obllgations:

To the Buyer: A fiduciary duty of utmost care, integrity, honesty and loyalty In deallngs with the Buyer.

To the Buyer and the Seller:
(a) Dlllgent exercise of reasonable skill and care In performance of the agent's duties. (b) A duty of honest and fair deallng and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or deslrablllty of the property that are not known to, or within the dlHgent attention and observation of, the parties.

An agent Is not obllgated to reveal to either party any confidential Information obtained from the other party that does not Involve the affirmative duties set forth above.

AGENT REPRESl:NTING BOnt SEUER AND BUYER
A real estate agent, either acting directly or through one or more salesperson and broker associates, can legally be the agent of both the Seller and the Buyer In a transaction, but only with the knowledge and consent of both the Seller and the Buyer.

In a dual agency situation, the agent has the following affirmative obllgattons to both the Seller and the Buyer:
(a) A fiduciary duty of utmost care, Integrity, honesty and loyalty In the deallngs with either the Seller or the Buyer. (b) Other duties to the Seller and the Buyer as stated above In their respective sections.

In representing both Seller and Buyer, a dual agent may not, without the express permission of the respective party, disclose to the other party confidential Information, Including, but not limited to, facts relating to either the Buyer's or Seller's financial position, motivations, bargaining position, or other personal Information that may Impact price, Including the Seller's willingness to accept a prtce less than the listing price or the Buyer's willingness to pay a price greater than the price offered.

SEllER AND BUYER RESPONSIBILITIES
Either the purchase agreement or a separate document will contain a confirmation of which agent Is representing you and whether that agent Is representing you exclusively In the transaction or acting as a dual agent. Please pay attention to that confirmation to make sure It accurately reflects your understanding of your agent's role. The above duties of the agent In a real estate transaction do not relleve a Seller or Buyer from the responslblllty to protect his or her own Interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent Is a person qualified to advise about real estate. If legal or tax advice Is desired, consult a competent professional. If you are a Buyer, you have the duty to exercise reasonable care to protect yourself, Including as to those facts about the property which are known to you or within your dlllgent attention and observation. Both Sellers and Buyers should strongly consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transaction can be complex and subject to change.

Throughout your real property transaction you may receive more than one disclosure form, depending upon the number of agents assisting In the transaction. The law requires each agent with whom you have more than a casual relationship to present you with this disclosure form. You should read Its contents each time It Is presented to you, considering the relationship between you and the real estate agent In your specific transaction. This dlsdosure form lndudes the provlslo• of SectloM 2079.1.3 to 2079.24, Inclusive, of the Clvll Code set forth on page 2. Read lt carefully. I/WE ACKNOWlEDGE RECEIPT OF A COPY OF THIS DISCLOSURE AND THE PORTIONS OF THE OVILCODE PRINTED ON THE BACK(OR A SEMRATE MGE). n Buyer Seller □ Lessor ~ Lessee Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor. Date:(J/ • fl -J! 21
Buyer seller l ✓I Lessor ] Lessee
Agent: Eua m B1Hg\~I M, naa -m•xll Corp< r r io11 DREUc.#: 01183885 Real Estate Broker (Firm)
MN

INITIALS
C, 2019 AIR CRE. All Rights Reserved.

AD-3.01, Revised 10-22-2020

INITIALS
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Pagel of4
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" Alex Ayala Sr. ~ ;:";•;::
(Salesperson or Broker-Assot,d,,.1 °774ECCF4425459-
DRE Lie. #: 02054 907 Date: _ __ _
THIS FORM HAS BEEN PREPARED BY AIR CRE. NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF THIS FORM FOR ANY SPECIFIC TRANSACTION. PLEASE SEEK LEGAL COUNSEL AS TO THE APPROPRIATENESS OF THIS FORM. /VI&]

INITIALS
Cl 2019 AIR CRE. All Rights Reserved.

AD-3.01, Revised 10-22-2020

INITIALS
Last Edited: 1/10/2022 7:26 PM
Page2 of4
-82:1547Ā.7;36893Ā0-*Ā&+ )!&(,Ȁ,,(+Ȁ$'+#Ȁ)/#.Ȁ.#.-"# !.-%& DISQ.OSURE REGARDING REAL ESTA'IE AGENCY RELA110NSHIP
OVIL CODE SECTIONS 2079.13 THROUGH 2079.24 (2079.16 APPEARS ON THE FRONl) 2079.13. As used in Sections 2079. 7 and 2079.14 to 2079.24, inclusive, the following tenns have the followlng meanings:
(a) "A8ent" means a person acting under provisions ofTltle 9 (commencing with Section 2295) in a real property transaction, and Includes a person who Is licensed as a real estate broker under Chapter 3 (commencing with Section 10130) of Part 1 of Division 4 of the Business and Professions Code, and under whose license a llstlng Is eioecuted or an offer to purchase Is obtained. The agent In the real property transaction bears responslblllty for that agent's salespersons or broker associates who perform as agents of the agent. When a salesperson or broker associate owes a duty to any principal, or to any buyer or seller who Is not a principal, In a real property transaction, that duty Is equivalent to the duty owed to that party by the broker for whom the salesperson or broker associate functions. (b) "Buyer" means a transferee In a real property transaction, and includes a person who executes an offer to purchase real property from a seller through an agent, or who seeks the services of an agent In more than a casual, transitory, or preliminary manner, with the object of entering Into a real property transaction ... Buyer" Includes vendee or lessee of real property. (c) "Commercial real property" means all real property In the state, e,ccept (1) single-family residential real property, (2) dwelllng units made subject to Chapter 2 (commencing with Section 1940) of ntle 5, (3) a mobile home, as defined in Section 798.3, (4) vacant land, or (5) a recreational vehicle, as defined In Section 799.29. (d) "Dual agent" means an agent acting, either directly or through a salesperson or broker associate, as agent for both the seller and the buyer In a real property transaction. (e) uustlng agreement" means a written contract between a seller of real property and an agent, by which the agent has been authorized to sell the real property or to find or obtain a buyer, Including rendering other services for which a real estate license Is required to the seller pursuant to the terms of the agreement. (f) "Seller's agent" means a person who has obtained a listing of real property to act as an agent for compensation. (g) "Listing price" is the amount expressed In dollars specified In the listing for which the seller is willing to sell the real property through the seller's agent. (h) .. Offering price" Is the amount expressed In dollars specified In an offer to purchase for which the buyer Is willing to buy the real property. (I) "Offer to purchase" means a written contract executed by a buyer acting through a buyer's agent that becomes the contract for the sale of the real property upon acceptance by the seller. (J) 0 Real property" means any estate specified by subdivision (1) or (2) of Section 761 In property, and includes (1) slngle-famlly residential property, (2) multi-unit residential property with more than four dwelling units, (3) commercial real property, (4) vacant land, (5) a ground lease coupled with Improvements, or (6) a manufactured home as defined In Section 18007 of the Health and Safety Code, or a mobile home as defined In Section 18008 of the Health and Safety Code, when offered for sale or sold through an agent pursuant to the authority contained In Section 10131.6 of the Business and Professions Code. (k) "Real property transaction" means a transaction for the sale of real property In which an agent Is retained by a buyer, seller, or both a buyer and seller to act In that transaction, and Includes a llsting or an offer to purchase. (I) "Sell," "salet or "sold" refers to a transaction for the transfer of real property from the seller to the buyer and includes exchanges of real property between the seller and buyer, transactions for the creation of a real property sales contract within the meaning of Section 2985, and transactions for the creation of a leasehold exceeding one year's duration. (m) "Seller" means the transferor In a real property transaction and Includes an owner who lists real property with an agent, whether or not a transfer results, or who receives an offer to purchase real property of which he or she Is the owner from an agent on behalf of another. "Seller" Includes both a vendor and a lessor of real property. (n) "Buyer's agent .. means an agent who represents a buyer In a real property transaction. 2079.14. A seller's agent and buyer's agent shall provide the seller and buyer in a real property transaction with a copy of the disclosure form specified in Section 2079.16, and shall obtain a signed acknowledgment of receipt from that seller and buyer, except as provided in Section 2079.15, as follows: (a) The seller's agent, if any, shall provide the disclosure form to the seller prior to entering Into the listing agreement. (b) The buyer's agent shall provide the disclosure form to the buyer as soon as practicable prior to eioecutlon of the buyer's offer to purchase. If the offer to purchase Is not prepared by the buyer's agent, the buyer's agent shall present the disclosure form to the buyer not later than the next business day after receiving the offer to purchase from the buyer. 2079.15. In any circumstance in which the seller or buyer refuses to sign an acknowledgment of receipt pursuant to Section 2079.14, the agent shall set forth, sign, and date a written declaration of the facts of the refusal. 2079.16 Reproduced on Page 1 of this AD form.
2079.17(a) As soon as practicable, the buyer's agent shall disclose to the buyer and seller whether the agent Is acting In the real property transaction as the buyer's agent, or as a dual agent representing both the buyer and the seller. This relationship shall be confirmed in the contract to purchase and sell real property or In a separate writing executed or acknowledged by the seller, the buyer, and the buyer's agent prior to or coincident with execution of that contract by the buyer and the seller, respectively. (b) As soon as practicable, the seller's agent shall disclose to the seller whether the seller's agent ls acting In the real property transaction as the seller's agent, or as a dual agent representing both the buyer and seller. This relationship shall be confinned In the contract to purchase and sell real property or In a separate writing executed or acknowledged by the seller and the seller's agent prior to or coincident with the execution of that contract by the seller. (Cl CONFIRMATION: The following agency relationships are confirmed for this transaction.

Seller's Brokerage Firm DO NOT COMPLETE, SAMPLE ONLY License Number __ _ Is the broker of (check one): □ the seller; or □ both the buyer and seller. (dual agent) Seller's Agent DO NOT COMPLETE, SAMPLE ONLY License Number __ _ Is (check one): □ the Seller's Agent. (salesperson or broker associate); or □ both the Buyer's Agent and the Seller's Agent. (dual agent) Buyer's Brokerage Firm DO NOT COMPLETE, SAMPLE ONLY License Number __ _ Is the broker of (check one): □ the buyer; or □ both the buyer and seller. (dual agent) Buyer's Agent DO NOT COMPLETE, SAMPLE ONLY License Number __ _ Is (check one): □ the Buyer's Agent. (salesperson or broker associate); or □ both the Buyer's Agent and the Seller's Agent. (dual agent) (d) The disclosures and confirmation required by this section shall be In addition to the disclosure required by Section 2079.14. An agent's duty to provide disclosure and confirmation of representation In this section may be performed by a real estate salesperson or broker associate afflHated with that broker. 2079.18 (Repealed pursuant to AB· 1289, 2017-18 California Legislative session) 2079.19 The payment of compensation or the obligation to pay compensation to an agent by the seller or buyer Is not necessarily detennlnative of a particular agency relationship between an agent and the seller or buyer. A listing agent and a selling agent may agree to share any compensation or commission paid, or any right to any compensation or commission for which an obligation arises as the result of a real estate transaction, and the terms of any such agreement shall not necessarlly be determinative of a particular relationship.
2079.20 Nothing In this article prevents an agent from selecting, as a condition of th- ~n-0;'· a"'lployment, a specific form of agency relationship not specifically ~ iv'\N

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CC) 2019 AIR CRE. All Rights Reserved.

AD-3.01, Revised 10-22-2020

INITIALS
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-82:1547Ā.7;36893Ā0-*Ā&+ )!&(,Ȁ,,(+Ȁ$'+#Ȁ)/#.Ȁ.#.-"# !.-%& prohibited by this article if the requirements of Section 2079.14 and Section 2079.17 are complied with. 2079.21 (a) A dual agent may not, without the express permission of the seller, disclose to the buyer any confidential Information obtained from the seller. (b) A dual agent may not, without the express permission of the buyer, disclose to the seller any confidential information obtained from the buyer. (c)-Confidential lnformationH means facts relating to the client's financial position, motivations, bargaining position, or other personal Information that may impact price, such as the seller Is wllUng to accept a price less than the listing price or the buyer iswllllng to pay a price greater than the price offered. (d) This section does not alter in any way the duty or responslblllty of a dual agent to any principal with respect to confidential Information other than price. 2079,22 Nothing In this article precludes a seller's agent from also being a buyer's agent. If a seller or buyer in a transaction chooses to not be represented by an agent, that does not, of Itself, make that agent a dual agent. 2079.23 (a) A contract between the principal and agent may be modified or altered to change the agency relationship at any time before the performance of the act which Is the object of the agency with the written consent of the parties to the agency relationship. (b) A lender or an auction company retained by a lender to control aspects of a transaction of real property subject to this part, Including validating the sales price, shall not require, as a condition of receiving the lender's approval of the transaction, the homeowner or listing agent to defend or Indemnify the lender or auction company from any llablllty alleged to result from the actions of the lender or auction company. Any clause, provision, covenant, or agreement purporting to Impose an obRgation to defend or Indemnify a lender or an auction company in violation of this subdivision Is against public policy, void, and unenforceable. 2079.24 Nothing In this article shall be construed to either diminish the duty of disclosure owed buyers and sellers by agents and their associate licensees, subagents, and employees or to relieve agents and their associate licensees, subagents, and employees from liability for their conduct in connection with acts governed by this article or for any breach of a fiduciary duty or a duty of disclosure.

AIR CRE • https:/J-. 11rcre.com • 21~Nl7n • contractsf)alrcre.com NOTICE: No part oft"- wortcs may be reproducied In any form without permission In wrttlna, MN

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C0 2019 AIR CRE. All Rights Reserved.

AD-3.01, Revised 10-22-2020

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COMMERCIAL PROPERTY LEASE AGREEMENT

BY AND BETWEEN

CITY OF SANTA CLARA, CALIFORNIA
AND
Mai Xuan Ngo dba M. Y Salon, a California, Sole Proprietor This lease agreement ("Lease") is dated January 11, 2022 and is by and between the City of Santa Clara, California, a chartered California municipal corporation ("City") and Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor ("Lessee"). City and Lessee may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Lease." The City Manager serves as Contract Administrator for this Lease on behalf of the City Council.

RECITALS:

A. Lessee previously leased the Premises (as defined below) pursuant to one or more prior leases, including without limitation Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor the Net Shopping Center Lease, with Lucia Lim ("Prior Landlord"), which expired on September 30, 2021 (collectively, "Prior Lease"). The Prior Lease was in tum a sublease under a ground lease between the Prior Landlord as lessee and the City as lessor for the land underlying the Project (as defined below), which also expired on September 30, 2021 ("Ground Lease").

B. Effective of the termination of the Prior Lease, the City became the sole owner of the Project, free and clear of the Prior Lease. Nevertheless, the Parties have agreed to enter into a new lease on the terms herein.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, stipulated and agreed, Lessee and City mutually agree as follows:

1. AGREEMENTS:

LEASE PROVISIONS
PREMISES; BUILDING AND PROJECT.

1.1 General. City hereby leases to Lessee, and Lessee hires from City, certain real property located in the City of Santa Clara, County of Santa Clara, State of California, commonly known as Suite A-1 consisting of approximately ~square feet (the "Premises") in that certain approximately ~ square foot building at 1000 Lafayette Street, Santa Clara, California, 95050 (the "Building"), located on an approximately 1.33 acre parcel (co1lectively, including the Building, the "Project"), all as more particularly described or identified in Exhibit A attached hereto and incorporated herein by reference. The Project excludes, and Lessee is the Lease Agreement/ Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor Rev.: 02-01-15
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2. sole owner of, the items identified on the Inventory of Fixtures set forth in Exhibit B attached hereto and incorporated herein by reference.

1.2 Pro Rata Share. Lessee's pro rata share ("Pro Rata Share") is percent 7.97% which represents the percentage that the rentable area of the Premises bears to the total rentable area of the building.

TERM; COMMENCEMENT DATE.

The term of this Lease shall be for Two (2) years commencing at 12:01 am on October 1, 2021 ("Commencement Date") and ending on September 30, 2023 _. Lessee shall, at the expiration of the term of this lease, or upon its earlier termination, surrender the Premises in as good condition as it is now at the date of this lease, reasonable wear and tear excepted. City shall have the right, upon the termination of the term or upon a breach, to enter the Premises and take possession of it.

3. RENT.

3.1 Base Rent. Lessee shall pay base rent ("Base Rent") in the amount of 1 160.00 per month. All rent, including Base Rent, shall be paid in lawful money of the United States of America without deduction or offset. Base Rent shall be payable on the first day of each and every month commencing on the Commencement Date, at a place (or places) as may be designated in writing from time to time by City.

3.2 Late Charge. Lessee acknowledges late payment by Lessee to City of rent will cause City to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing, accounting and late charges that may be imposed on City.

Therefore, if City does not receive any installment of rent due from Lessee within ten ( 10) days after the date such rent is due, Lessee shall pay to City an additional sum often percent (10%) of the overdue rent as a late charge. The parties agree this late charge represents a fair and reasonable estimate of the costs City will incur by reason of late payment by Lessee. Acceptance of any late charge shall not constitute a waiver of Lessee's default with respect to the overdue amount, nor prevent City from exercising any of the other rights and remedies available to City.

3.3 Rent. The term "Rent" as used in this Lease shall mean Base Rent and any other amounts owing from Lessee to the City pursuant to this Lease.

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4. SECURITY DEPOSIT.

Lessee has tendered to City an amount of One Thousand One Hundred Sixty Dollars $1,160.00 as a security deposit. City may use these funds as are reasonably necessary to remedy any Lessee breach(s) or default(s) under this Lease, including without limitation in the payment of rent, to repair damages caused by Lessee, or expenses incurred to clean the Premises upon termination of tenancy. If any portion of the security deposit is used towards rent or damages at City's sole discretion, Lessee agrees to reinstate said total security deposit upon receipt of five (5) days written notice. Any remaining balance of the security deposit shall be returned by City to Lessee at such time after termination of this Lease that all of Lessee's obligations under this Lease have been fulfilled, reduced by such amounts as may be required by City to remedy defaults on the part of Lessee in the payment of Rent or other obligations of Lessee under this Lease, to repair damage to the Premises, Building, or Project caused by Lessee and to clean the Premises. City may use and co-mingle the security deposit with other funds of City. Lessee hereby waives the provisions of the California Civil Code section 1950. 7, and all other provisions of any laws, now or hereinafter in force, which restricts the amount or types of claim that a landlord may make upon a security deposit or imposes upon a landlord (or its successors) any obligation with respect to the handling or return of security deposits.

5. DUTIES OF LESSEE.

5.1 Lessee shall not use the image of the Premises or Project, the name of City or any other identifying sign or symbol associated with the Premises or Project or City to undertake any action or representation than those specifically assigned to Lessee as a duty under this Lease.
5 .2 Lessee shall protect and maintain the Premises. Lessee shall assume the responsibility for the guarding and safekeeping of all personal property located at the Premises.

5.3 Lessee shall not make any interior renovation or remodeling or make any major changes to the Premises or remove any objects, which are not the property of Lessee without the prior written consent of the City Manager or her designee.

6. USE OF PREMI SES/COMMON AREA S.

6.1 Permitted Uses. Lessee shall use the Premises solely as Hair Salon and for no other purpose. Without limiting the foregoing, Lessee agrees not to use or pennit use of the Premises for any unlawful purpose, and not to commit or pennit any waste or nuisance in or about the Premises. Lessee will not use Premises in a manner that increases the risk of fire, cost of fire insurance or improvements thereon. No unreasonable sign or placard shall be painted, inscribed or placed in or on or about the Premises or Pr~ject; and no tree or shrub thereon (if any) shall be destroyed or removed or other waste committed of said Premises or Project. No Lease Agreement/ Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor Rev.: 02-01-15
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-82:1547Ā.7;36893Ā0-*Ā&+ )!&(,Ȁ,,(+Ȁ$'+#Ȁ)/#.Ȁ.#.-"# !.-%& bicycles, motorcycles, automobiles or other mechanical means of transportation shall be placed anywhere on the Premises or Project except for areas (if any) identified by the City from time to time. No repair, storage, overhaul or modification of any motor vehicle shall take place on or about the Premises or Project. Lessee, at his/her expense, shall keep the Premises in as good condition as it was at the beginning of the term hereof, reasonable wear and tear excepted.

6.2 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted hereunder. Lessee shall not (i) create, cause, maintain or permit any nuisance or waste in, on or about the Premises or permit or allow the Premises to be used for any unlawful or immoral purpose, and (ii) do or permit to be done anything in any manner which unreasonably disturbs the users of the Project or the occupants of neighboring property. Specifically, and without limiting the above, Lessee agrees not to cause any unreasonable odors, noise, vibration, power emissions or other item to emanate from the Premises. No materials or articles of any nature shall be stored outside upon any portion of the Premises.

6.3 Condition. Use of Premises. City makes no warranty or representation of any kind concerning the condition of the Premises, or the fitness of the Premises for the use intended by Lessee, and hereby disclaims any personal knowledge with respect thereto, it being expressly understood by the parties that Lessee has previously occupied the Premises, personally inspected the Premises, knows its condition, finds it fit for Lessee's intended use, accepts it as is and has ascertained that it can be used for the limited purposes specified in Section 6.1.

6.4 Use of Adjacent Parking Lot. Lessee and its customers shall have the right to use One (1) unreserved, unassigned parking spaces located in the City parking lot as shown on Exhibit A on a first come basis. A portion of the parking lot containing spaces equal to the total number of unreserved parking spaces made available to all of the tenants/lessees of the Building is part of the Project's "Common Areas" (defined in Section 6.6 below).

6.5 Overloading. Lessee shall not do anything on the Premises that will cause damage to the Premises, the Building, or the Project. Lessee shall not suffer or allow the Premises to be used in any manner that will harm or impair the structural strength of the Building nor to suffer or allow to be installed or operated on the Premises, or the Building, any machinery or apparatus whose weight or vibration would harm or impair the structural strength of the Premises or the Building. Lessee shall not place a load upon the floor or roof of the Premises without the City's prior written consent, which consent may be conditioned on moving by skilled licensed handlers, or which exceeds the load per square foot which such floor or roof was designed to carry. Business machines and mechanical equipment used by Lessee which cause vibration or noise that may be transmitted to the Building structure or to any leased space to such a degree as to be reasonably objectionable to the City or Lease Agreement/ Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor Rev.: 02-01-15
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6.6 Common Areas.

6.6.1 The term "Common Areas" shall mean and refer to all areas within the exterior boundaries of the Project which are now or hereafter made available for general use, convenience, and benefit of the City and other persons entitled to occupy space in the Project, including, without limiting the generality of the foregoing, roofs, exterior walls, structural parts of the Building and structural floor, pipes and conduits, outside lighting fixtures (if any), automobile parking areas (if any), driveways, sidewalks, landscaped and planted areas, and HV AC and plumbing systems and similar common areas, facilities, and systems. Lessee and its employees and invitees are, except as otherwise specifically provided in this Lease, authorized, empowered, and privileged to use the Common Areas in common with other persons during the Term of this Lease. City agrees to maintain and operate, or cause to be maintained and operated ( except as hereinafter provided with reference to cost of maintenance), the Common Areas at all times for the benefit and use of the customers and patrons of Lessee, and of other lessees, owners, and occupants of the Project.

6.6.2 City shall keep or cause the Common Areas to be kept in a neat, clean, and orderly condition, and shall repair any damage to the facilities thereof, but all Common Area Expenses shall be charged and prorated in the manner hereinafter set forth. "Common Area Expenses" shall include, but not be limited to, all sums expended in connection with the Common Areas for all general maintenance and repairs, resurfacing, painting, restriping, cleaning, sweeping and janitorial services; maintenance and repair of sidewalks, curbs, and Project signs; sprinkler systems, planting and landscaping (if any); lighting and other utilities; directional signs; maintenance and repair of any fire protection systems, lighting systems, storm drainage systems and other utility systems outside of the Premises; all maintenance and repair costs and expenses, except as to cost of replacement of the roof, exterior walls, structural parts of the Premises and structural floor, and pipes and conduits outside the leased Premises in the Project that furnish the leased Premises with various utilities ( except to the extent that the same are the obligations of the appropriate utility company or are otherwise Lessee's obligation pursuant to Section 7. I or other provision of this Lease), incurred by the City pursuant to Section 7 .2; personnel to implement such services; real and personal property taxes and assessments on the improvements and land comprising the Project; any governmental imposition or surcharge imposed upon the City or assessed against any portion of the Common Areas; all costs and expense pertaining to any security alarm system for the lessees in the Project (if any); depreciation on maintenance and operating machinery and equipment (if owned) and rental paid for such machinery and equipment (if rented); and Lease AgreemenV Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor Rev.: 02-01-15
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In addition, the Common Area Expenses shall include a management fee of ten percent {10%) of the total of all other Common Area Expenses, adjusted from time to time as provided herein. The City may cause any or all of those services to be provided by an independent contractor or contractors.

6.6.3 The Common Area Expenses shall be prorated in the following manner:
{i) From and after the Commencement Date, and throughout the term hereof, Lessee shall pay to the City, on the first day of each calendar month, an amount estimated by the City to be Lessee's share of the Common Area Expenses. The foregoing estimated monthly charge may be adjusted by the City at the end of any calendar quarter on the basis of the City's experience and reasonably anticipated costs.
(ii) At the City's sole election, each calendar year, the City shall furnish Lessee a statement covering the calendar quarter or year just expired, certified as correct by an authorized representative of the City, showing the total of the Common Area Expenses, the amount of Lessee's share of the Common Area Expenses for such calendar quarter or year, and the payments made by Lessee with respect to such period as set forth in {i) above. If Lessee's share of the Common Area Expenses exceeds Lessee's payments so made, Lessee shall pay the City the deficiency within l O days after receipt of such statement. If Lessee's payments exceed Lessee's share of the Common Area Expenses, Lessee shall be entitled to offset the excess against payments next thereafter to become due to the City as set forth in {i) above. Lessee's share of the Common Area Expenses for the previous calendar quarter or year shall be that portion of all such expenses which is equal to the proportion thereof which the number of square feet of floor area in the Premises bears to the total number of square feet of floor area of the Building.

6.6.4 Failure of Lessee to pay any of the charges as in this Section 6.6 required to be paid shall constitute a default under the terms hereof in like manner as failure to pay Base Rent when due.

6.6.5 The City shall at all times have the right and privilege of determining the nature and extent of the Common Areas, and of making such changes therein and thereto from time to time which in its sole discretion it deems to be desirable and in the best interest of all persons using the Common Areas, including without limitation the location and relocation of driveways, entrances, exits, automobile parking spaces {if any), installation of prohibited areas, landscaped areas, utilities, and all other facilities thereof.

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6.6.6 Nothing contained herein shall be deemed to create any liability upon the City for any damage to motor vehicles of customers or employees or for loss of property from within such motor vehicles.

6.6. 7 The City shall have the right to establish, and from time to time change, alter, and amend, and to enforce against Lessee and the other users of the Common Areas such reasonable rules and regulations (including the exclusion of employees' parking therefrom) as the City in its sole discretion may deem necessary or advisable for the proper and efficient operation and maintenance of the Common Areas. The rules and regulations herein provided may include, without limitation, the hours during which the Common Areas shall be open for use.

6.6.8 City shall retain the sole and absolute discretion in the modification of the Common Areas, which may include the rearrangement, increase or decrease of the areas, and the manner in which the areas are utilized. City shall also have the right at any time and from time to time during the term hereof to exclude and restrain any person from use or occupancy thereof, excepting, however, bona fide customers, patrons, and service suppliers of Lessee, and other tenants of the City who make use of the Common Areas fully in accordance with the rules and regulations established by the City from time to time with respect thereto. The rights of Lessee hereunder in and to the Common Areas shall at all times be subject to the rights of the City, the other tenants of the Project to use the same in common with Lessee, and it shall be the duty of Lessee to keep all of the Common Areas free and clear of any obstructions created or permitted by Lessee or resulting from Lessee's operation and permit the use of the Common Areas only for normal parking, ingress and egress by said customers, patrons, and service suppliers to and from the Building. Nothing herein shall prevent the City from allowing non-users of the Building or Project to use the parking lot for City­ designated events, as long as Lessee and its customers' rights to use the number of spaces identified in Section 6.4 during Lessee's regular business hours is not unreasonably restricted.

6.6.9 If in the sole discretion of the City unauthorized persons are using any of the Common Areas by reason of the presence of Lessee in the Premises, Lessee, upon demand of the City, shall enforce such rights against all such unauthorized persons by appropriate proceedings. Nothing herein shall affect the rights of the City at any time to remove any such unauthorized persons from said areas or to restrain the use of any of said areas by unauthorized persons.

MN
Lessee Initials
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7. MAINTENANCE AND REPAIRS.

7.1 Lessee's Obligations. Lessee agrees at all times during the term hereof, at its own expense, to repair, replace and maintain in good and tenantable condition the Premises and every part thereof(except that portion of the Premises to be maintained by the City as hereinafter provided) and including, without limitation, the utility meters, pipes and conduits, all fixtures, air conditioning equipment and heating equipment, if any, exclusively serving the Premises and other equipment therein, including any equipment installed by Lessee which is part of said system, the storefront or storefronts, all signs, locks and closing devices, and all window sash, casement or frames, door and door frames, floor coverings, including carpeting, terrazzo or other special flooring, and all such items of repair, maintenance, allocation and improvement or reconstruction as may at any time or from time to time be required by a governmental agency having jurisdiction thereof.

Lessee shall contract with a qualified service company for the monthly maintenance of the air conditioning equipment or heating, ventilating and air conditioning equipment, as the case may be, exclusively serving the Premises, with a copy of the service contract to be furnished to the City upon execution of this Lease and a copy of any subsequent contracts to be furnished from time to time during the term of this Lease provided that, at the City's sole election, the City may so contract directly with a qualified service company, and Lessee shall promptly reimburse the City for the full cost of same. Maintenance of all glass, both exterior and interior, is the sole responsibility of Lessee, and any glass broken shall be promptly replaced by Lessee with glass of the same kind, size and quality. Upon surrender of the Premises, Lessee shall deliver the Premises to the City in good order, condition and state of repair, but shall not be responsible for damages resulting from ordinary wear and tear.
7 .2 City Obligations. Subject to the foregoing provisions and to the reimbursement by Lessee described in Section 6.6, the City shall keep and maintain in good and tenantable condition and repair the roof, exterior walls, structural parts of the Premises and structural floor, and pipes and conduits outside the Premises that furnish the Premises with various utilities ( except to the extent that the same are the obligations of the appropriate utility company or are otherwise Lessee's obligation pursuant to Section 7 .1 or other provision of this Lease); provided, however, that the City shall not be required to make repairs necessitated by reason of the negligence of Lessee or anyone claiming under Lessee, by reason of failure of Lessee to perform or observe any conditions or agreements of this Lease, or by reason of alterations, additions, or improvements made by Lessee or anyone claiming under Lessee. As used in this Section, "exterior walls" shall not include storefronts, plate glass, window cases or window frames, doors or door frames, security grilles or similar enclosures. It is understood and agreed that the City shall be under no obligation to make any repairs, alterations, renewals, replacements or improvements to and upon the Premises or the mechanical equipment exclusively serving the Premises at any time except as this Lease expressly provides. Anything Lease Agreement/ Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor Rev.: 02-01-15
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-82:1547Ā.7;36893Ā0-*Ā&+ )!&(,Ȁ,,(+Ȁ$'+#Ȁ)/#.Ȁ.#.-"# !.-%& to the contrary contained in this Lease notwithstanding, the City shall not in any way be liable to Lessee for failure to make repairs as herein specifically required of it unless Lessee has previously notified the City, in writing, of the need for such repairs and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of Lessee's written notification.

7.3 Lessee's Failure to Maintain. If Lessee refuses or neglects to make repairs or maintain the Premises, or any part thereof, in a manner reasonably satisfactory to the City, the City shal1 have the right, upon giving Lessee reasonable written notice of its election to do so, to make such repairs or perform such maintenance on behalf of and for the account of Lessee. In such event the cost of such work shall be paid by Lessee as additional rent promptly upon receipt of an invoice therefor. In addition, the City shall include a management fee on the work that was completed by the City on behalf of the Lessee, in the amount of fifteen percent ( 15%) that may be adjusted from time to time as provided herein.

7.4 Waiver of Legal Rights. Lessee waives the benefits of any law existing now or at any time during the term of this Lease and any extension thereof or thereafter giving Lessee rights or remedies as a result of the physical condition of the Premises, the Building, or Project and, without limitation, Sections 1932, 1933, 1941, 1941.2, 1942 and 1942.1 of the Civil Code of California and all rightto make repairs at the expense of the City or to terminate this Lease as provided in those Civil Code sections or otherwise, except as expressly provided herein.

8. HAZARDOUS MATERIALS.

8.1 Compliance with Laws. Lessee shall not cause or permit any Hazardous Material (as defined below) to be brought upon, kept or used in or about the Premises or Project by Lessee, its agents, employees, contractors or invitees.

8.2 Termination of Lease. City shall have the right to terminate the Lease in City's sole and absolute discretion in the event that (i) any anticipated use of the Premises by Lessee involves the generation or storage, use, treatment, disposal or release of Hazardous Material in a manner or for a purpose prohibited or regulated by any governmental agency, authority or Hazardous Materials laws; (ii) Lessee has been required by any lender or governmental authority to take remedial action in connection with Hazardous Material contaminating the Premises, if the contamination resulted from Lessee's action or use of the Premises; or (iii) Lessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal or storage of a Hazardous Material on the Premises.

8.3 Assignment and Subletting. lf(i) any anticipated use of the Premises by any proposed assignee or sublessee involves the generation or storage, use, treatment or disposal or release of Hazardous Material in a manner or for any purpose, (ii) the Lease Agreement/ Mai Xuan Ngo dba M.Y Salon, a California, Sole Proprietor Rev.: 02-01-15
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-82:1547Ā.7;36893Ā0-*Ā&+ )!&(,Ȁ,,(+Ȁ$'+#Ȁ)/#.Ȁ.#.-"# !.-%& proposed assignee or sublessees has been required by any prior landlord, lender or governmental authority to take remedial action in connection with Hazardous Material contaminating a property, if the contamination resulted from such party's action or use of the property in question, or (iii) the proposed assignee or sublessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal or storage of a Hazardous Material, then it shall not be unreasonable for City to withhold its consent to an assignment or subletting to such proposed assignee or sublessee.

8.4 Hazardous Materials Defined. The term "Hazardous Material(s)" shall mean any toxic or hazardous substance, material or waste or any pollutant or contaminant or infectious or radioactive material, including but not limited to, those substances, materials or wastes regulated now or in the future under any of the following statutes or regulations and any and all of those substances included within the definitions of "hazardous substances," "hazardous waste," "hazardous chemical substance or mixture," "imminently hazardous chemical substance or mixture," " toxic substances," "hazardous air pollutant," "toxic pollutant" or "solid waste" in the (a) "CERCLA" or "Superfund" as amended by SARA, 42 U.S.C. Sec. 9601 et seq., (b) RCRA, 42 U.S.C. Sec. 6901 et seq., (c) CWA., 33 U.S.C. Sec. 1251 et seq., (d) CAA, 42 U.S.C. 78401 et seq., (e) TSCA, 15 U.S.C. Sec. 2601 et seq., (f) The Refuse Act of 1899, 33 U.S.C. Sec. 407, (g) OSHA, 29 U.S.C. 651 et seq. (h) Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et seq., (i) USDOT Table (40 CFR Part 302 and amendments) or the EPA Table (40 CFR Part 302 and amendments), (j) California Superfund, Cal. Health & Safety Code Sec. 25300 et seq., (k) Cal. Hazardous Waste Control Act, Cal. Health & Safety Code Section 25100 et seq., (I) Porter-Cologne Act, Cal. Water Code Sec. 13000 et seq., (m) Hazardous Waste Disposal Land Use Law, Cal. Health & Safety Code Sec. 25220 et seq., (n) "Proposition 65," Cal. Health and Safety Code Sec. 25249.5 et seq., (o) Hazardous Substances Underground Storage Tank Law, Cal. Health & Safety Code Sec. 25280 et seq., (p) California Hazardous Substance Act, Cal. Health & Safety Code Sec. 28740 et seq., (q) Air Resources Law, Cal. Health & Safety Code Sec. 39000 et seq., (r) Hazardous Materials Release Response Plans and Inventory, Cal.

Health & Safety Code Secs. 25500-25541, (s) TCPA, Cal. Health and Safety Code Secs. 25208 et seq., and (t) regulations promulgated pursuant to said laws or any replacement thereof, or as similar terms are defined in the federal, state and local laws, statutes, regulations, orders or rules. Hazardous Materials shall also mean any and all other substances, materials and wastes which are, or in the future become regulated under applicable local, state or federal law for the protection of health or the environment, or which are classified as hazardous or toxic substances, materials or wastes, pollutants or contaminants, as defined, listed or regulated by any federal, state or local law, regulation or order or by common law decision, including, without limitation, (i) trichloroethylene, tetracholoethylene, perchloroethylene and other chlorinated solvents, (ii) any petroleum products or fractions thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste.

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