City Council and Authorities Concurrent
February 20, 2024

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
21-1214 Agenda Date: 9/28/2021

REPORT TO COUNCIL

SUBJECT
Action on Resolution Authorizing an Agreement with Eugene Burger Management Corporation for Property Management Services of City-Owned Commercial Properties Located at 900 and 1000 Lafayette Street, and Authority for the City Manager to Negotiate and Execute Leases at 900 and 1000 Lafayette Street; and Associated Budget Amendment

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. In 1971, the City entered long-term ground leases which are set to expire in the coming months.

Peddler’s Plaza is approximately a 1.3-acre site with a one-story retail commercial building. The retail commercial building has 10,300 square feet of leasable space with seven (7) units. The Peddler’s Plaza Ground Lease will expire on September 30, 2021.

Commerce Plaza is approximately a 3.7-acre site with a seven-story office building. The office building has 90,000 square feet of leasable space with 60 units. The Commerce Plaza Ground Lease will expire on April 11, 2022.

These two properties have been long discussed as integral components of a long-term vision for rebuilding downtown. The planning process on a specific plan for downtown is not complete and it will be several more years before any redevelopment of the properties could begin to occur. The two buildings are occupied, and it would be beneficial to the City if there is ongoing occupancy of the structures.

As the Ground Leases are set to terminate, the current tenants will have no rights to remain in their spaces. Staff has reached out to tenants to determine their interest in continuing to operate in their existing space and indicated that the City is interested in possibly extending their respective current leases under generally the same terms for a limited period (up to two years) to allow time for the City and its new management company to transition into their new roles.

DISCUSSION
Pursuant to City Code Section 2.105.330, a formal Request for Proposal (RFP) was conducted as the solicitation method for this procurement, with the award recommendation based on “best value”.

The factors considered in the award were qualifications and experience of firm, qualifications and City of Santa Clara Printed on 4/3/2022Page 1 of 5
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21-1214 Agenda Date: 9/28/2021
experience of key personnel, demonstrated capability and cost.

In May 2021, a competitive Request for Proposal (RFP) was advertised on the City’s bid notification system for a Contractor to provide property management services necessary to rent, lease, operate, and manage Commerce Plaza and Peddler’s Plaza.

Forty vendors viewed the RFP, and two proposals were received from Eugene Burger Management Corporation and Orchard Commercial. Proposals were independently evaluated by three representatives from the Housing Division and one representative from the City Manager’s Office. In addition to scoring against the criteria set forth above, the City elected to conduct a Best and Final Offer (BAFO) to clarify certain aspects of the City’s requirements, and provide proposers a final opportunity to revise their cost proposals in light of this new information.

References were checked with the City of Santa Clara Department of Parks and Recreation, County of Sonoma, and King Family Trust. All references checked positive.

Eugene Burger Management Corporation (EBMC) is recommended for award of contract as having submitted the best value proposal. They demonstrated experience in managing multiple property types, specifically commercial retail spaces and government ‐
assisted programs. EBMC provided a
thorough and comprehensive response that met or exceeded the City’s requirements and will ensure a high level of service that is needed to ensure ongoing occupancy of the structures.

EBMC currently manages one other City-owned property, Morse Mansion, located at 981 Fremont Street.

Under the proposed Agreement, EBMC will provide professional property management services to rent, lease, operate and manage Peddler’s Plaza and Commerce Plaza. The initial term of the agreement will be two years and costs are fixed for the initial term as described in Table 1 below. The City may extend the Agreement for three additional one-year options.

Table 1. Costs Associated with Performing Property Management Services Management Services Fee
Description Monthly Rate
Initial Term Year
1 of 2
Initial Term
Year 1 of 2
Monthly Rate
Initial Term Year
2 of 2
Initial Term
Year 2 of 2
Commerce Plaza* $8,000 $40,000 $8,150 $97,800
Peddler's Plaza $1,500 $18,000 $1,525 $18,300
Total for Annual Management Services for Each Property$58,000 $116,100 TOTAL FOR ANNUAL MANAGEMENT SERVICES FOR INITIAL TERM $174,100 Other Service Fees
Description Initial Term Year 1 of 2 Fees Initial Term Year 2 of 2 Fees Accounting Services
Commerce Plaza* $700/Month $715/Month
Peddler's Plaza $300/Month $305/Month
TOTAL FOR ACCOUNTING SERVICES FOR INITIAL TERM$19,340
Construction Management Fees 10% of Improvement Costs
Leasing Services
For vacant space new tenants: - 6% of the fixed annual minimum rent payable under the terms of the original lease during the first three (3) years of the lease - 5% of the fixed annual minimum rent payable during the next two years (2) of the original lease - 4% of all rent payable thereafter during the sixth and subsequent years of the original lease For existing tenants: - Renewal expansion rates for existing tenants will be 50% of the leasing fee for new tenants identified above.

TOTAL ESTIMATE FOR LEASING SERVICES FOR INITIAL TERM $140,000 CONTINGENCY (10%) $33,344 MAXIMUM COMPENSATION NOT-TO-EXCEED FOR INITIAL TERM$366,784 City of Santa Clara Printed on 4/3/2022Page 2 of 5
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21-1214 Agenda Date: 9/28/2021
Management Services Fee
Description Monthly Rate
Initial Term Year
1 of 2
Initial Term
Year 1 of 2
Monthly Rate
Initial Term Year
2 of 2
Initial Term
Year 2 of 2
Commerce Plaza* $8,000 $40,000 $8,150 $97,800
Peddler's Plaza $1,500 $18,000 $1,525 $18,300
Total for Annual Management Services for Each Property$58,000 $116,100 TOTAL FOR ANNUAL MANAGEMENT SERVICES FOR INITIAL TERM $174,100 Other Service Fees
Description Initial Term Year 1 of 2 Fees Initial Term Year 2 of 2 Fees Accounting Services
Commerce Plaza* $700/Month $715/Month
Peddler's Plaza $300/Month $305/Month
TOTAL FOR ACCOUNTING SERVICES FOR INITIAL TERM$19,340
Construction Management Fees 10% of Improvement Costs
Leasing Services
For vacant space new tenants: - 6% of the fixed annual minimum rent payable under the terms of the original lease during the first three (3) years of the lease - 5% of the fixed annual minimum rent payable during the next two years (2) of the original lease - 4% of all rent payable thereafter during the sixth and subsequent years of the original lease For existing tenants: - Renewal expansion rates for existing tenants will be 50% of the leasing fee for new tenants identified above.

TOTAL ESTIMATE FOR LEASING SERVICES FOR INITIAL TERM $140,000 CONTINGENCY (10%) $33,344 MAXIMUM COMPENSATION NOT-TO-EXCEED FOR INITIAL TERM$366,784 *Property Management and Accounting Services for Commerce Plaza will not begin until April 2022, the amount noted for the management services fees and accounting fees for this location is for only five months for year 1 of 2.

The RFP included a protest process. On September 3, 2021, the City received a letter of protest from Orchard Commercial requesting that the City conduct oral presentations with the proposers for the purpose of considering additional information that Orchard Commercial wanted to introduce.

The protest was reviewed by the City’s Purchasing Division Manager who concluded that the RFP process was conducted fairly, and the evaluation team concluded that oral presentations were not necessary in order to make a decision. The process provided other avenues for Orchard Commercial to raise their issues, and an oral presentation after the recommendation is published and after Orchard Commercial’s debriefing where the strengths and weaknesses of their proposal were discussed, would not be appropriate.

Orchard Commercial’s letter of protest and the City’s response are attached.

Tenant Leases
With the expiration of the ground leases, the existing building tenants will have no rights to continue to occupy the retail/office space. In order for their occupancy to continue, the City will need to enter into new lease agreements with each of the existing tenants at both 900 and 1000 Lafayette Street.

Staff proposes that the City authorize leases for a term not to exceed two years to maintain occupancy of the buildings and allow for a transition to a new property manager while the City continues its work on the specific plan for the downtown. Staff is seeking authority from the City Council for the City Manager to negotiate and execute assignment and assumption agreements, lease agreements, and related amendments for a term not to exceed two years on a form that is subject to approval by the City Attorney.

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 City of Santa Clara Printed on 4/3/2022Page 3 of 5
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21-1214 Agenda Date: 9/28/2021
foreseeable indirect physical change in the environment.

FISCAL IMPACT
The City has not received complete rent roll information for the current building tenants. The estimated monthly revenues are $25,000 per month for Peddler’s Plaza and $170,000 per month for Commerce Plaza. The total estimated revenue over the initial two-year term is $3.3 million, while the total management fees over the initial term are not expected to exceed $366,784.

In FY 2021/22, the management services, accounting services, and leasing services costs are estimated at $182,300 and represent activity through June 2022. A FY 2021/22 General Fund budget action is recommended to add funding of $182,300 to the City Manager’s Office, offset by rent revenue. The rent revenue is projected to total over $700,000 in FY 2021/22, which is more than sufficient to cover the costs. The recommended budget action only recognizes rent revenue to offset costs as the City has not yet received complete rent roll information. An additional budget action may be brought forward later in the fiscal year to recognize additional revenue and to adjust the expenditure budget, if necessary, based on actual experience. Funding in future years, along with the associated revenue adjustments, will be incorporated into the budget development process for those years.

Budget Amendment
FY 2021/22
Current Increase/
(Decrease)
Revised
General Fund (001)
Revenue
Rents $9,833,222 $182,300 $10,015,522
Expenditure
City Manager’s Office $5,442,069 $182,300 $5,624,369

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.

RECOMMENDATION

1. Adopt a Resolution to authorize the City Manager to do the following:

A. Negotiate and execute an Agreement with Eugene Burger Management Corporation (EBMC) City of Santa Clara Printed on 4/3/2022Page 4 of 5
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21-1214 Agenda Date: 9/28/2021
to provide property management services for an initial two-year term beginning on or about September 28, 2021 and ending on or about September 30, 2023 with maximum compensation not-to-exceed $366,784 and subject to the appropriation of funds; B. Execute amendments to the Agreement with EBMC, not to exceed $33,344, for contingencies in the event there are unanticipated changes during the initial term of the Agreement, subject to the appropriation of funds;
C. 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;
D. Execute amendments to each of the agreements to add funds as required in the event revenues collected exceed staff’s estimates, subject to the appropriation of funds; E. Negotiate and execute assignment and assumption agreements, commercial leases and related amendments for the commercial spaces at 900 and 1000 Lafayette Street for a term not to exceed 2 years on a form agreement subject to the approval of the City Attorney; and

2. Consistent with City Charter Section 1305, “At any meeting after the adoption of the budget, the City Council may amend or supplement the budget by motion adopted by the affirmative votes of at least five members so as to authorize the transfer of unused balances appropriated for one purpose to another purpose, or to appropriate available revenue not included in the budget,” approve a FY 2021/22 budget amendment in the General Fund to recognize rent revenue in the amount of $182,300 and increase the City Manager’s Office appropriation by $182,300(five affirmative Council votes required to appropriate additional revenue).

Reviewed by: Ruth Mizobe Shikada, Assistant City Manager Approved by: Deanna J. Santana, City Manager

ATTACHMENTS

1. Resolution

2. Draft Agreement with Eugene Burger Management Corporation

3. Protest Letter from Orchard Commercial, Inc.

4. Purchasing Division Manager’s Response to Protest Letter from Orchard Commercial, Inc.

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Resolution/Eugene Burger Page 1 of 4
Rev: 11/22/17
RESOLUTION NO. _____

A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA

APPROVING AN AGREEMENT BETWEEN THE CITY OF SANTA

CLARA AND EUGENE BURGER MANAGEMENT CORPORATION

FOR PROPERTY MANAGEMENT SERVICES OF CITY -OWNED
COMMERCIAL PROPERTIES INCLUDING 900 AND 1000

LAFAYETTE STREET AND AUTHORIZING THE CITY MANAGER

TO NEGOTIATE AND EXECUTE AGREEMENTS RELATED TO
THE PROPERTIES LOCATED AT 900 AND 1000 LAFAYETTE
STREET

BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

WHEREAS, 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;
WHEREAS, In 1971, the City entered into long-term ground leases which are set to expire in the coming months;
WHEREAS, Peddler’s Plaza is approximately a 1.3 -acre site with a one -story retail commercial building. The retail commercial building has 10,300 square feet of leasable space with seven (7) units. The Peddler’s Plaza Ground Lease will expire on September 30, 2021; WHEREAS, Commerce Plaza is approximately a 3.7-acre site with a seven-story office building.

The office building has 90,000 square feet of leasable space with 60 units. The Commerce Plaza Ground Lease will expire on April 11, 2022;
WHEREAS, the City is in the process of developing a specific plan for the downtown area which includes both Peddler’s Plaza and Commerce Plaza;
WHEREAS, in the interim, the City desires to maintain occupancy of both buildings, until the City determines how to develop the area and these properties; WHEREAS, the City would like to enter into lease agreements with tenants to continue to use the property for a period not to exceed two year;
WHEREAS, In 2021, a competitive Request for Proposal (RFP) was advertised on the City’s bid Resolution/Eugene Burger Page 2 of 4
Rev: 11/22/17
notification system for a Contractor to provide property management services necessary to rent, lease, operate and manage Peddler’s Plaza and Commerce Plaza that are owned by the City; and,
WHEREAS, As the Ground Lease is set to terminate, the Agreement for Services between the City of Santa Clara and Eugene Burger Management contemplates the provision of professional property management services to rent, lease, operate and manage Peddler’s Plaza and Commerce Plaza. The initial term of the agreement will be two years. The City may extend the Agreement for three additional one-year options.

NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

1. That the City Council hereby finds that the above Recitals are true and correct and by this reference makes them a part hereof.

2. That the City Council hereby approves and authorizes the City Manager to execute the Agreement for Services between the City of Santa Clara and Eugene Burger Management, substantially in the form attached hereto as Exhibit “Agreement,” subject to clarifying changes consistent with the terms thereof as may be approved by the City Attorney prior to execution thereof.

3. That this Resolution, including the Agreement approval described in Section 2 above, is based on the findings set forth above.

4. That the City Manager and/or designee is hereby authorized and directed to do the following:
a. Negotiate and execute an Agreement with Eugene Burger Management Corporation to provide property management services for an initial two-year term beginning on or about September 28, 2021 and ending on or about September 30, 2023 with maximum compensation not-to-exceed $328,284 and subject to the appropriation of funds; b. Execute amendments to the Agreement, not to exceed $29,844, for contingencies in the Resolution/Eugene Burger Page 3 of 4
Rev: 11/22/17
event there are unanticipated changes during the initial term of the Agreement, subject to the appropriation of funds; and
c. Execute three one-year options to extend the term of the Agreement after the initial term through September 30, 2026 for property management services, subject to the appropriation of funds.
d. Execute amendments to each of the agreements to add funds as required in the event revenues collected exceed staff’s estimates, subject to the appropriation of funds. e. Negotiate and execute assignment and assumption agreements, commercial leases, and related amendments for the commercial spaces located at 900 and 1000 Lafayette Street for a term not to exceed 2 years on a form agreement subject to the approval of the City Attorney.
f. That the City Manager and/or designee is hereby authorized and directed to perform all acts to be performed by the City in the administration of the Agreement for Services between the City of Santa Clara and Eugene Burger Management pursuant to the terms of the submitted proposal. The City Manager and/or designee is further authorized and directed to perform all other acts, including to negotiate and execute all documents (including leases and amendments) necessary or convenient to carry out the purposes of this Resolution and the Agreement.

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Resolution/Eugene Burger Page 4 of 4
Rev: 11/22/17

5. Effective date. This resolution shall become effective immediately.

I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED

AND ADOPTED BY THE CITY OF SANTA CLARA, CALIFORNIA, AT A REGULAR MEETING THEREOF HELD ON THE ___ DAY OF _________, 2021, BY THE FOLLOWING VOTE:

AYES: COUNCILORS:

NOES: COUNCILORS:

ABSENT: COUNCILORS:

ABSTAINED: COUNCILORS:

ATTEST: ______________________________

NORA PIMENTEL, MMC

ASSISTANT CITY CLERK

CITY OF SANTA CLARA

Agreement with Eugene Burger Management Corporation Page 1 Rev. 07-01-18
EBIX Insurance No. S200004328

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND

EUGENE BURGER MANAGEMENT CORPORATION

PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Eugene Burger Management Corporation a California corporation, (Contractor). City and Contractor 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. Contractor represents that it, and its subcontractors, 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 agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor 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 – Schedule of Fees
Exhibit C – Insurance Requirements
Exhibit D – Notice of Exercise of Option to Extend Agreement 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,

Agreement with Eugene Burger Management Corporation Page 2 Rev. 07-01-18
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. Initial Term. 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 or about September 28, 2021 and terminate on September 30, 2023.

B. Options to Extend. After the Initial Term, the City reserves the right, at its sole discretion, to extend the term of this Agreement for up to three (3) additional one-year terms through September 30, 2026 (“Option Periods”), subject to the appropriation of funds. See Exhibit D for Notice of Exercise to Option to Extend Agreement Form.

3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.

4. WARRANTY
Contractor 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. Contractor 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 Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City.

5. QUALIFICATIONS OF CONTRACTOR - STANDARD OF CARE
Contractor 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 Contractor’s representations regarding its skills and knowledge. Contractor 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 Contractor’s complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in

Agreement with Eugene Burger Management Corporation Page 3 Rev. 07-01-18
accordance with Exhibit B, entitled “SCHEDULE OF FEES.” The maximum compensation of this Agreement is Three Hundred Sixty-Six Thousand Seven Hundred Eighty-Four Dollars ($366,784), 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 Contractor’s expense. Contractor 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 Contractor.

B. Termination for Default. If Contractor 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 Contractor.

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, Contractor will deliver to City all City information or material that Contractor has in its possession.

8. ASSIGNMENT AND SUBCONTRACTING
City and Contractor 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. Contractor shall not hire subcontractors without express written permission from City.

Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor 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 CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do

Agreement with Eugene Burger Management Corporation Page 4 Rev. 07-01-18
not act as agent(s) or employee(s) of City. Contractor 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 Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor 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 Contractor which is otherwise known to Contractor 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 Contractor 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, Contractor 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 CONTRACTOR
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 Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor 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. Contractor 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.

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

Agreement with Eugene Burger Management Corporation Page 5 Rev. 07-01-18

14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor 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 Contractor pursuant to this Agreement – including claims of any kind by Contractor’s employees or persons contracting with Contractor 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 indemnify 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. Contractor’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, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.

C. To the extent Contractor 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, Contractor 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 Contractor’s responsibilities under the Act.

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

16. WAIVER
Contractor 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.

Agreement with Eugene Burger Management Corporation Page 6 Rev. 07-01-18

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: City Manager’s Office
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]

And to Contractor addressed as follows:

Eugene Burger Management Corporation
6600 Hunter Drive
Rohnert Park, CA 94928
and by e-mail at *_______________@XXX
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
Contractor 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, Contractor’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 Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Contractor has read and agrees to comply with City’s Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).

19. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and

Agreement with Eugene Burger Management Corporation Page 7 Rev. 07-01-18
following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.

20. FAIR EMPLOYMENT
Contractor 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
Contractor 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.

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.

Agreement with Eugene Burger Management Corporation Page 8 Rev. 07-01-18
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

Approved as to Form: Dated:

Office of the City Attorney
City of Santa Clara

DEANNA J. SANTANA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”

EUGENE BURGER MANAGEMENT CORPORATION
a California corporation

Dated:

By (Signature):

Name:

Title:

Principal Place of
Business Address:
6600 Hunter Drive
Rohnert Park CA 94928
Email Address:

Telephone: (707) 584-5123
Fax: (707) 584-5124
“CONTRACTOR”

Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 1 Rev. 07-01-18

EXHIBIT A

SCOPE OF SERVICES

1. DESCRIPTION OF WORK

1.1. Under this Agreement, Contractor will provide property management services necessary to rent, lease, operate, and manage two properties owned by the City of Santa Clara (“City”).

1.2. The property addresses are as follows:

1.2.1. Commerce Plaza (Current Agreement Expires on April 11, 2022) 900 Lafayette Street
Santa Clara, CA 95050

1.2.2. Peddler’s Plaza (Current Agreement Expires on September 30, 2021) 1000 Lafayette Street
Santa Clara, CA 95050

1.3. To the extent not inconsistent with this Agreement between the City and Contractor including this Scope of Services, the City’s RFP# 20-21-55 (including subsequent updates) and Contractor’s proposal response dated June 8, 2021 are hereby incorporated by reference herein, and shall supplement this Scope of Services and be subject to the terms and conditions of the Agreement.

2. REQUIREMENTS

2.1. Contractor must maintain a valid real estate broker’s license for the term of this Agreement and be in good standing with the California Department of Consumer Affairs and the California Department of Real Estate.

2.2. Contractor has reasonable and working knowledge and understanding of the general principles and responsibilities of property management including, but not limited to, the laws concerning real estate licensing, contracts, tenant/landlord responsibilities, fair housing, employment, property protection and insurance.

2.3. Contractor has working knowledge of principles of business administration, accounting, insurance, repairs and maintenance, and public relations.

3. SERVICE REQUIREMENTS

3.1. Contractor will provide property management services necessary to rent, lease, operate and manage two properties owned by the City of Santa Clara (“City”). Services will include, but not limited to, the following services:

Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 2 Rev. 07-01-18

3.1.1. Operation, Maintenance, and Repair Services. Contractor will maintain the City’s properties identified herein in good repair in accordance with all local codes, and in a condition at all times acceptable to the City, including but not limited monitoring and coordinating cleaning, painting, decorating, plumbing, carpentry, grounds care, and other maintenance and repair work as may be necessary, subject to any limitations imposed by the City in addition to those contained herein. The following will apply:

3.1.1.1. Contractor will contract with qualified independent contractors for ongoing preventative maintenance and minor repair
services, such as landscaping services, janitorial, etc.

Contractor shall follow all City purchasing codes and policies when obtaining services.

3.1.1.2. Enter into agreements on behalf of property owner for electricity, gas, steam, telephone window cleaning, trash removal, security, vermin extermination, and other services as deemed advisable.

3.1.1.3. Contractor will obtain contracts, materials, supplies, utilities, and services on the most advantageous terms for the Project, and is authorized to solicit bids, either formal or informal, for items that can be obtained from more than one source. The Contractor will secure and credit to the Owner all discounts, rebates or commissions obtainable with respect to purchases, service contracts, and all other transactions on the Owner's behalf.

3.1.1.4. Unless it is due to an emergency, Contractor will obtain prior written approval from the City for all expenditures over $1,000.

3.1.1.5. Contractor will promptly receive and investigate all services requests from tenants, take such action thereon as may be justified, and will keep records of the same. Emergency requests will be received and serviced on a twenty-four (24) hour basis and reported to the City by the next business day.

3.1.1.6. Ensure independent Contractors have necessary licensing and insurance coverage.

3.1.1.7. Ensure no improvements or modifications are made to the property without City approval.

3.1.1.8. Coordinate legal action against tenants and contractors as needed.

3.1.1.9. All services provided for repairs must comply with prevailing

Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 3 Rev. 07-01-18
wage laws under California Labor Code Section 1770 et seq.

The Director of the Department of Industrial Relations has ascertained the general prevailing rate of per diem wages and the rates for overtime and holiday work in the locality in which the services are to be performed for each craft, classification or type of worker needed to perform the services under the contract. Copies are on file with and available upon request from the Office of the Clerk of the Board of Supervisors or at http://www.dir.ca.gov/dlsr/DPreWageDetermination.htm.

3.1.1.10. City will reimburse Contractor for repairs in accordance with this section.

3.1.2. Leasing Services

3.1.2.1. Engage with tenants and coordinate with the City on negotiations and finalization with Lessee(s) for lease
agreements.

3.1.2.2. Ensure compliance with the lease agreement on behalf of the City.

3.1.2.3. Address any tenant concerns related to the physical condition of the property.

3.1.2.4. Maintain accurate records including procedures for enforcing the terms of lease agreements, and annual inspections to ensure compliance with Federal, State, and Local Housing Quality Standards and transmit said records and reports to the City on a monthly basis.

3.1.2.5. Manage and resolve conflicts among tenants. Document and keep all record of communications with tenants on issues, complaints, and resolutions.

3.1.2.6. Collection of Rents and other Receipts. Contractor will collect, when due, all rents, charges and other amounts receivable on the City’s account in connection with the management and operation of City owned properties identified herein. Such receipts will be deposited in an account, separate from all other accounts and funds, with a bank whose deposits are insured by the Federal Deposit Insurance Corporation.

This account will be carried in City National Bank and
designated of record as “Eugene Burger Management
Corporation Trust Account FBO City of Santa Clara property name - operating”.

3.1.3. Records and Reports. Contractor will have the following

Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 4 Rev. 07-01-18
responsibilities with respect to records and reports:

3.1.3.1. Annual Management Plan. An annual management plan incorporating an annual budget is to be developed by the Contractor for the project each year beginning with the project's next fiscal year. An interim plan, including an interim budget is to be developed, if necessary, to provide guidance from the beginning of this contract to the beginning of the next fiscal year. The annual management plan and budget shall set forth the financial, physical and operational goals to be achieved by the project in the succeeding fiscal year as well as any other special goals or interests set forth by the City.

3.1.3.2. Contractor will establish and maintain a comprehensive system of records, books, and accounts in a manner
satisfactory to the City. The City will determine whether records and books will be kept on an individual property basis or as a consolidated portfolio. EBMC recommends separate books for each property.

3.1.3.3. With respect to each fiscal year ending during the term of this Agreement, the Contractor will, upon the specific direction of the City, have an annual financial report prepared by a Certified Public Accountant or other person acceptable to the City. The report will be certified by the preparer and the Contractor and will be submitted to the City within sixty (60) days after the end of the fiscal year, for the City's further certification. Compensation for the preparer's services will be paid out of the Operating Account as an expense of the
Project.

3.1.3.4. Contractor will prepare a monthly report comparing actual and budgeted figures for receipts and disbursements and will submit each such report to the City on or about fifteen (15) days after the end of the month covered.

3.1.3.5. Contractor will furnish such information (including occupancy reports) as may be requested by the City from time to time with respect to the financial, physical or operational conditions of the City owned properties.

3.1.3.6. On or about the fifteenth (15th) day of each month, the Contractor will furnish the City with a statement of receipts and disbursements during the previous month, and with a schedule of accounts receivable and payable, and reconciled bank statements for the Operating Account and Security Account (if any) as of the end of the previous month.

Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 5 Rev. 07-01-18

3.1.3.7. By the fifteenth (15th) day of each month, the Contractor will furnish the owner with an itemized list of all delinquent accounts, including rental accounts as of the end of the previous month.

3.1.4. Accounting Services

3.1.4.1. Fidelity Bond. The Contractor will furnish, at its own expense, a fidelity bond in a principal sum which is at least equal to the gross potential income for two months and is conditioned to protect the City against misappropriation of Project funds by the Contractor and its employees.

3.1.4.2. Annual operating budgets for the City owned properties identified herein will be as approved by the City and
incorporated in the Annual Management Plan.

3.2. Disbursements from Operating Account. From the funds collected and deposited by the Contractor in the Operating Account the Contractor will make the following disbursements promptly when payable: utilities, maintenance services, repair services, janitorial services, landscape services, supplies and materials, misc. taxes and fees, insurance, etc.

3.3. Other Services

3.3.1. Perform, record, and submit to the City a bi-annual visual inspection.

3.3.2. Provide a detailed monthly management report to the City to include:

3.3.2.1. Monthly maintenance, preventative maintenance, and tenant requested maintenance.

3.3.2.2. Onsite property visits, inspections, and complaint logs.

3.3.2.3. Lease agreement enforcement issues.

3.3.2.4. Legal matters.

3.3.3. Provide annual operating budget for both properties to the City for review and approval.

Agreement with Eugene Burger Management Corporation/Exhibit B-Schedule of Fees Page 1 Rev. 07-01-18

EXHIBIT B

COMPENSATION

1. MAXIMUM COMPENSATION
The maximum amount payable for property management services provided under this Agreement and as set forth below shall not exceed Three Hundred Sixty-Six Thousand Seven Hundred Eighty-Four Dollars ($366,784) during the Initial Term of the Agreement. Any additional services requested by the City that would exceed the preceding maximum amount will be addressed in an Amendment to the Agreement. No additional services will be performed unless both Parties execute an Amendment outlining the services requested and the compensation agreed for such services.

2. FEES

2.1. In consideration of the property management services rendered to City by Contractor under this Agreement the City shall pay the following fees:

Management Services Fee
Description
Monthly Rate
Initial Term
Year 1 of 2
Initial Term
Year 1 of 2
Monthly Rate
Initial Term
Year 2 of 2
Initial Term
Year 2 of 2
Commerce Plaza* $8,000 $40,000 $8,150 $97,800
Peddler's Plaza $1,500 $18,000 $1,525 $18,300
Total for Annual Management Services
for Each Property $58,000 $116,100
TOTAL FOR ANNUAL MANAGEMENT SERVICES FOR INITIAL TERM $174,100 Other Service Fees
Description Initial Term Year 1 of 2 Fees Initial Term Year 2 of 2 Fees Accounting Services
Commerce Plaza $700/Month $715/Month
Peddler's Plaza $300/Month $305/Month

TOTAL FOR ACCOUNTING SERVICES FOR INITIAL
TERM $19,340
Construction Management Fees 10% of Improvement Costs
Leasing Services

Agreement with Eugene Burger Management Corporation/Exhibit B-Schedule of Fees Page 2 Rev. 07-01-18
For Vacant Space New Tenants:
- 6% of the fixed annual minimum rent payable under the terms of the original lease during the first three (3) years of the lease
- 5% of the fixed annual minimum rent payable during the next two years (2) of the original lease
- 4% of all rent payable thereafter during the sixth and subsequent years of the original lease
For Existing Tenants:
- Renewal expansion rates for existing tenants will be 50% of the leasing fee for new tenants identified above.

TOTAL ESTIMATE FOR LEASING SERVICES FOR
INITIAL TERM $140,000
CONTINGENCY (10%) $33,344

MAXIMUM COMPENSATION NOT-TO-EXCEED FOR
INITIAL TERM $366,784
*Property Management Services for Commerce Plaza will not begin until April 2022, the amount noted for the management service fee for this location is for only five months for year 1 of 2.

2.2. Contractor is entitled to the leasing fee specified in the above table when (i) the lease is fully executed with tenant (ii) the first months rent and security deposit (if applicable) is paid to the City.

3. PRICING AND OPTION RENEWALS

3.1. Pricing is firm fixed for the Initial Term of the Agreement.

3.2. Price Adjustments: Contractor may request adjustments to rates prior to any one-year option to renew the Agreement after the Initial Term. Price increase requests must be tied to CPI, PPI, or relevant industry specific index. Requests for increase must be fully documented by Contractor. Price adjustments are subject to City’s approval.

4. INVOICING

4.1. Contractor shall invoice the City on a monthly basis for Services provided by the Contractor during the preceding month on an invoice and in the format approved by the City and is subject to verification and approval by the City.

4.2. City will pay Contractor within thirty (30) days of City’s receipt of an approved invoice.

Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 1 Rev. 07-01-18

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, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:

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:
$2,000,000 Each occurrence
$2,000,000 General aggregate
$2,000,000 Products/Completed Operations aggregate
$2,000,000 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 least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.

Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 2 Rev. 07-01-18
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. 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 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.

Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 3 Rev. 07-01-18
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 D of this Exhibit C, above.

E. 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 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.

F. 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,

Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 4 Rev. 07-01-18
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.

G. 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 emailed to:
[email protected]
or mailed to:

EBIX Inc.

City of Santa Clara Electric Department
P.O. Box 100085 – S2
Duluth, GA 30096
Telephone number: 951-766-2280
Fax number: 770-325-0409
H. 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.

Agreement with Eugene Burger Management Corporation/Exhibit D-Notice of Option to Extend Agreement Page 1
Rev. 07-01-18

EXHIBIT D

NOTICE OF EXERCISE OF OPTION TO EXTEND AGREEMENT

AGREEMENT TITLE:

CONTRACTOR:

DATE:

Pursuant to Section __ of the Agreement referenced above, the City of Santa Clara hereby exercises its option to extend the term under the following provisions:

OPTION NO. # of #

NEW OPTION TERM
Begin date:

End date:

CHANGES IN RATE OF COMPENSATION

Percentage change in CPI upon which adjustment is based:

Pursuant to Section ___ of the Agreement the rates of compensation are hereby adjusted as follows:
(use attachment if necessary)

MAXIMUM COMPENSATION for New Option Term:

For the option term exercised by this Notice, City shall pay Contractor an amount not to exceed the amount set forth above for Contractor’s services and reimbursable expenses, if any. The undersigned signing on behalf of the City of Santa Clara hereby certifies that an unexpended appropriation is available for the term exercised by this Notice, and that funds are available as of the date of this signature.

Approved as to Form:

Dated:

Office of the City Attorney
City of Santa Clara

DEANNA J. SANTANA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771

September 3, 2021

City of Santa Clara
1500 Warburton Avenue
Finance Department – Purchasing Division
Santa Clara, CA 95050
Attention: Purchasing Officer

RE: Notice of Protest regarding Bid# RFP 20-21-55

Directed to: Purchasing Officer

This is to file formal protest pursuant to the above RFP (Section 17,) in which our firm recently participated. The subject RFP was issued for property management duties associated with two commercial properties the city will soon be gaining back under ground lease agreements (900- 1000 Lafayette Street in Santa Clara.)

Orchard Commercial has a long standing and successful relationship with the city, for which we have high regard and appreciation and we are grateful for the opportunity to collaborate with the city under existing service agreements. In particular, our work managing MD#183 (Maintenance District) which supports the Convention Center, Hyatt Hotel, Tech Mart and parking structure and grounds was recently rewarded with a contract extension.

Our pro test of the subject RFP Award Recommendation is based on a number of factors as outlined below.

1. Based on our past experience and current work with the city, our understanding is that contractual preference is given to do business with (i) locally-based service firms that (ii) offer the best pricing and (iii) are willing to accept the city’s contractual terms. Orchard meets each of these criteria but was not selected in this case. We scored the best in key areas of “cost and qualifications.” We submitted the lowest bid and were the only Santa Clara-based company considered while the competing firm is located nearly 100 miles away and submitted the highest cost proposal.

2. The Ground Lease transfer for these assets and related leasing plan is an integral part of the underlying value of the buildings. Discussing and fully understanding these dynamics

would greatly assist with developing a strategy and pricing model for new and renewing tenants as well as how to market and lease the vacant space. As outlined in our response, Orchard believes it to be in the city’s best interest to engage a leasing broker for this purpose in order to gain the best market intelligence before entering into lease commitments with tenants . H owever without the benefit of a discussion or interview, the city is denying itself the opportunity to fully vet the options and make the most informed decision related to this RFP . We made several requests for an interview to discuss this key topic but were denied.

3. The pre-award tabulation report was very limited in terms of what was scored from the written proposal. It only included the following:

o Qualifications and Experience of the firm
o Qualifications and Experience of personnel
o Demonstrated Capability
o Cost

There were only two firms bidding on the assignment, including Orchard and a company based in Rohnert Park, located nearly 100 miles away and a 2 -hour drive from Santa Clara. Orchard scored best on Cost and Qualifications , areas we think represent high priorities for the city, yet the overall score was slightly higher for the other firm based on “qualifications of the firm and demonstrated capability.” We did not elaborate in our RFP response on topics such as “emergency procedures, dealing with tenant complaints and vendor relations” since we assumed our status as the leading Silicon Valley PM firm would be apparent. Perhaps an oversight on our part, but not a basis for inferior scoring.

May we suggest other key attributes of the service f irms be considered such as (i) depth and coverage in the local market to respond to emergencies, (ii) available corporate support and (iii) a demonstrated commitment to the City of Santa Clara by virtue of its base of business and (iv) charitable & civic contributions . Additionally, may we suggest that s uccess in the property management business depends and relies upon local resources and knowledge, which Orchard offers more of than any other firm. Our company manages 12 million square feet in the region and we have been recognized as the largest privately owned PM firm in Silicon Valley. This translates to being able to replace people when turnover occurs, for example. Most importantly, we have specific strategies in mind for these assets we wish to explore with the city in order that the best choice may be made for value creation and preservation.

In summary, there is considerably more information to be obtained when making a selection to manage a valuable real estate portfolio than what may be contained in a written proposal scored on limited categories. That is why most RFP processes include an oral interview. We understand this to be in the city’s discretion and highly recommend that you exercise your right to do so. We believe this additional key step will provide the best available intelligence to the city prior to making a final selection for this important RFP.

Very respectfully and sincerely,
ORCHARD COMMERCIAL, INC.

Tim Ballas CPM, CCIM
VP, Director of Asset Management

[email protected]
510.329.1280

1500 Warburton Avenue ● Santa Clara, CA 95050 ● Phone: 408-615-2340 ● Fax: 408-243-8687 ● www.SantaClaraCA.gov Finance Department

September 21, 2021

Mr. Tim Ballas
Orchard Commercial Inc.
3350 Thomas Road, Suite 201
Santa Clara, CA 95054

Reference: City of Santa Clara RFP 20-21-55 for Property Management Services

Dear Mr. Ballas,

The City of Santa Clara (City) received the subject letter from Orchard Commercial, Inc. (Orchard) regarding the award recommendation for RFP 20-21-55, Property Management Services. In your letter, you request that the City reconsider its decision not to conduct oral interviews with each proposer prior to making a final recommendation of award to Eugene Burger Management Corporation (EBMC).

Background:

The objective of the referenced RFP for Property Management Services was to select a vendor to provide property management services for two City owned properties, Commerce Plaza and Peddler’s Plaza. Proposals were evaluated and scored by a four-member evaluation team with representatives from the City Manager’s Office and the Community Development Department.

Scoring was based on the following evaluation criteria and corresponding weights:

Qualifications and Experience of Firm (25%), Qualifications and Experience of Key Personnel (25%), Demonstrated Capability (30%), and Cost (20%). The RFP requested that proposers respond to a series of questions that mapped to each criterion. The RFP instructions stated that the recommendation of award may be based on the final scores of the written proposals and, at the sole discretion of the City, an optional oral presentation and Best and Final Offer (BAFO).

On August 19, 2021, the City issued a Notice of Intended Award to Eugene Burger Management for property management services based on the scores of their written proposal and Best and Final Offer.

On September 2, 2021, you received a debrief on the RFP with the City’s Contracts Manager, who also facilitated the RFP process. The briefing covered Orchard’s strengths and weaknesses, and several elements of the RFP including the City’s local business preference, ground lease requirements, and the possibility of introducing additional elements to consider as part of the evaluation process.

Subject: Notice of Protest regarding RFP 20-21-55 dated September 3, 2021 Notice of Protest from Orchard Commercial, Inc. dated September 3, 2021

1500 Warburton Avenue ● Santa Clara, CA 95050 ● Phone: 408-615-2340 ● Fax: 408-243-8687 ● www.SantaClaraCA.gov On September 3, 2021, you submitted your Notice of Protest requesting the City to conduct an oral presentation to provide Orchard the opportunity to address many of the same topics that were discussed in the debrief.

Discussion:

Orchard Commercial’s Notice of Protest makes the following arguments to support why the City should reconsider its decision not to conduct oral presentations that would have provided Orchard the opportunity to introduce new requirements that Orchard feels should have been considered by the City.

Argument 1:

a) Orchard Commercial is an active, local business with a long-standing presence in the City of Santa Clara, offered the lowest pricing, and is willing to accept the City’s contractual terms.

b) Orchard Commercial did not object to the City’s contractual terms.

c) Orchard Commercial scored best in the key areas of cost and qualifications and submitted the lowest bid.

Response:

a) Santa Clara City Code Section 2.105.260 provides a local preference of 1% for bids where low price is the only award factor. For example, if a vendor located in the City of Santa Clara submits a bid for $100, that bid will be considered as $99 when comparing the other bidders. The City does not have a local preference for a “best value” or evaluative process, which was the scoring methodology for this RFP.

Notwithstanding, 1% consideration of Orchard’s total score would not have changed the outcome of the award.

b) The evaluation team is aware and noted that Orchard Commercial did not take exceptions to the City’s contractual terms.

c) Considering the evaluation criteria listed above, Orchard’s scores were 5% higher, and 44% and 60% lower for Qualifications and Experience of Key Personnel, Qualifications and Experience of Firm, and Demonstrated Capability, respectively.

The cost proposal score is misleading. Although it appears that Orchard’s cost is 50% less than EBMC’s (20 versus 10 points), the cost proposals were not equally compared because EBMC provided pricing for leasing services (as requested) that was valued at $360,000, and Orchard elected not to price this item stating that leasing “will be provided by others.” A more accurate approach to scoring cost would have been not to consider the $360,000. When doing so, there is a 25% separation Notice of Protest from Orchard Commercial, Inc. dated September 3, 2021

1500 Warburton Avenue ● Santa Clara, CA 95050 ● Phone: 408-615-2340 ● Fax: 408-243-8687 ● www.SantaClaraCA.gov between the scores, with Orchard’s price $62,660 higher than EBMC’s. Adjusting the cost scores by using this more accurate comparison increases the separation between the total scores and has no effect on the overall rankings.

Argument 2:

The City should have conducted oral interviews to better understand the dynamics of the Ground Lease transfer. Several requests for an interview were denied.

Response:

The RFP introduction clearly states that the City was seeking proposals to “provide professional property management services necessary to lease, operate, and manage two properties owned by the City.” The statement of work also included requirements for leasing services. In addition, the BAFO required pricing for leasing services.

The RFP required that proposers describe a strategy and provide a cost for leasing services. Orchard elected not to provide this information, and recommended deferring discussion of the requirement pending the completion of other tasks.

After the proposals were submitted and during the evaluation process, Orchard requested an oral interview to discuss the requirement that they did not address in their proposal.

Oral presentations are typically conducted when the City wants clarification or additional information on what was proposed. Oral presentations are not conducted to provide proposers the opportunity to “fill-in” significant omissions that should have been addressed in their proposal. If Orchard wanted additional information or clarification regarding this requirement, the RFP process included a process for Q&A and Objections as discussed below.

Argument 3:

a) The pre-award tabulation report was very limited in terms of what was scored from the written proposal. It only included the following:

• Qualifications and Experience of the Firm
• Qualifications and Experience of Personnel
• Demonstrated Capability
• Cost
b) Orchard did not elaborate (in their proposal) on several service areas, “assuming our (Orchard’s) status as a leading Silicon Valley PM firm would be apparent.” Notice of Protest from Orchard Commercial, Inc. dated September 3, 2021

1500 Warburton Avenue ● Santa Clara, CA 95050 ● Phone: 408-615-2340 ● Fax: 408-243-8687 ● www.SantaClaraCA.gov Orchard further states that, “this was an oversight on our (Orchard’s) part, but not a basis for inferior scoring.”

c) Orchard contends that many additional attributes should have been considered in the selection process, and these could have been presented in an oral presentation.

Response

a) As stated in the Background section of this letter, the RFP requested that proposers respond to a series of questions that map to each of the evaluation criteria described above.

b) Generally, evaluators are only able to evaluate and score information that is presented to them. There were several areas in the RFP that allowed Orchard to address their status as a leading Silicon Valley firm and elaborate on key service areas. Electing not to address these key areas in your proposal is a basis for lower scoring.

c) The RFP process included two opportunities for proposers to request the City to consider additional information: 1) the Question & Answer process and 2) the Objections process described in Sections 10 and 11 of the RFP, respectively.

Specifically, the Objections section allows proposers to object to the “structure, content or distribution” of the RFP prior to the close of the Q&A period. Orchard did not avail itself of these processes, electing instead to introduce new attributes after the proposal deadline and during the evaluation process, and further requesting that such concerns be considered using the oral presentation process.

If oral presentations are conducted, they occur later in the process, after proposals are received and evaluated. They are never conducted after a proposer is debriefed on the process where the proposer was made aware of the strengths and weaknesses of their proposal. Oral presentations are intended to further explore and understand information that was submitted. Oral presentations are not designed to provided second chances to address significant proposal omissions or consider new information that might change the specifications or evaluation factors, thus requiring a re-bid for the service.

The City elected not to conduct oral presentations because the evaluation team agreed that sufficient information was provided to make a final decision.

Notice of Protest from Orchard Commercial, Inc. dated September 3, 2021

1500 Warburton Avenue ● Santa Clara, CA 95050 ● Phone: 408-615-2340 ● Fax: 408-243-8687 ● www.SantaClaraCA.gov Conclusion:

The RFP process was conducted fairly and pursuant to the rules set forth in the RFP. Therefore, I am upholding staff’s award recommendation to Eugene Burger Management Corporation and denying your request to further the process by conducting oral presentations.

Thank you for your interest and participation in the RFP process.

Sincerely,

Mark Giovannetti
Purchasing Division Manager

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City Council
Hearing
Item 4.1 21-1214
Property Management Services and
Lease Extensions
September 28, 2021
1 Conceptual Timeline --
Two-year lease extension fits comfortably within Downtown construction schedule • Precise Plan adoption currently scheduled for July 2022 • After Plan adoption start land disposition process for City property (does not apply to any private property in the Downtown)
• Surplus Land Process — 6 months
— Council Surplus Declaration
— Noticing Period: 60-day noticing period
— City respond to Eligible Entities -negotiation for no less than 90 days — Council consideration
• If no notices of interest are received or if negotiations conclude with no recommended project proposals, City can proceed with RFP 2 ~'~S~ ii~E~~'~NG IVIAT~~~~►~ . 1

Conceptual Timeline
• Developer Selection Process —12 months
— Develop and advertise Request For Proposals (RFP)
— Evaluate RFP
— Select Developer and negotiate Exclusive Negotiation Agreement (ENA) — Council Consideration of Developer and ENA
• Conceptual Design/Community Outreach — 15 months
— Initial conceptual design and community outreach
— Additional environmental work
— Council Consideration of Conceptual Design and Development Agreement • Final Design and City Permits — 12 months
• Construction begins
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City Council
Hearing
Item 21-1214
Property Management Services and
Lease Extensions
September 28, 2021
4 7

RESOLUTION NO. 21-9001

A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA

APPROVING AN AGREEMENT BETWEEN THE CITY OF SANTA

CLARA AND EUGENE BURGER MANAGEMENT CORPORATION

FOR PROPERTY MANAGEMENT SERVICES OF CITY-OWNED
COMMERCIAL PROPERTIES INCLUDING 900 AND 1000

LAFAYETTE STREET AND AUTHORIZING THE CITY MANAGER

TO NEGOTIATE AND EXECUTE AGREEMENTS RELATED TO
THE PROPERTIES LOCATED AT 900 AND 1000 LAFAYETTE
STREET
BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

W HEREAS, 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;
W HEREAS, in 1971, the City entered into long-term ground leases which are set to expire in the coming months;
W HEREAS, Peddler's Plaza is approximately a 1.3-acre site with cone-story retail commercial building. The retail commercial building has 10,300 square feet of leasable space with seven (7) units. The Peddler's Plaza Ground•Lease will expire on September 30, 2021; W HEREAS, Commerce Plaza is approximately a 3.7-acre site with aseven-story office building.

The office building has 90,000 square feet of leasable space with 60 units. The Commerce Plaza Ground Lease will expire on April 11, 2022;
W HEREAS, the City is in the process of developing a specific plan for the downtown area which includes both Peddler's Plaza and Commerce Plaza;
W HEREAS, in the interim, the City desires to maintain occupancy of both buildings, until the City determines how to develop the area and these properties; W HEREAS, the City would like to enter into lease agreements with tenants to continue to use the property for a period not to exceed two year;
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Resolution/Eugene Burger Page 1 of 4
Rev: 11 /22/17

WHEREAS, in 2021, a competitive Request for Proposal (RFP) was advertised on the City's bid notification system for a Contractor to provide property management services necessary to rent, lease, operate and manage Peddler's Plaza and Commerce Plaza that are owned by the City; and,
W HEREAS, as the Ground Lease is set to terminate, the Agreement for Services between the City of Santa Clara and Eugene Burger Management contemplates the provision of professional property management services to rent, lease, operate and manage Peddler's Plaza and Commerce Plaza. The initial term of the agreement will be two years. The City may extend the Agreement for three additional one-year options.

NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

That the City Council hereby finds that the above Recitals are true and correct and by this reference makes them a part hereof.

2. That the City Council hereby approves and authorizes the City Manager to execute the Agreement for Services between the City of Santa Clara and Eugene Burger Management, substantially in the form attached hereto as Exhibit "Agreement," subject to clarifying changes consistent with the terms thereof as may be approved by the City Attorney prior to execution thereof.

3. That this Resolution, including the Agreement approval described in Section 2 above, is based on the findings set forth above.

4. That the City Manager and/or designee is hereby authorized and directed to do the following:

A. Negotiate and execute an Agreement with Eugene Burger Management Corporation to provide property management services for an initial two-year term beginning on or about September 28, 2021 and ending on or about September 30, 2023 with maximum compensation not-to-exceed $328,284 and subject to the appropriation of funds; Resolution/Eugene Burger Page 2 of 4
Rev: 11 /22/17

B. Execute amendments to the Agreement, not to exceed $29,844, for contingencies in the event there are unanticipated changes during the initial term of the Agreement, subject to the appropriation of funds; and,
C. Execute three one-year options to extend the term of the Agreement after the initial term through September 30, 2026 for property management services, subject to the appropriation of funds.

D. Execute amendments to each of the agreements to add funds as required in the event revenues collected exceed staff's estimates, subject to the appropriation of funds.

E. Negotiate and execute assignment and assumption agreements, commercial leases, and related amendments for the commercial spaces located at 900 and 1000 Lafayette Street for a term not to exceed 2 years on a form agreement subject to the approval of the City Attorney.

F. That the City Manager and/or designee is hereby authorized and directed to perform all acts to be perFormed by the City in the administration of the Agreement for Services between the City of Santa Clara and Eugene Burger Management pursuant to the terms of the submitted proposal. The City Manager and/or designee is further authorized and directed to perform all other acts, including to negotiate and execute all documents (including leases and amendments) necessary or convenient to carry out the purposes of this Resolution and the Agreement.
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Resolution/Eugene Burger
Rev: 11 /22/17

5. Effective date. This resolution shall become effective immediately.

HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED

AND ADOPTED BY THE CITY OF SANTA CLARA, CALIFORNIA, AT A REGULAR MEETING THEREOF HELD ON THE 28T" DAY OF SEPTEMBER, 2021, BY THE FOLLOWING VOTE:

AYES: COUNCILORS: Hardy, Jain, Park, and Watanabe
NOES: COUNCILORS: Becker, and Chahal
ABSENT: COUNCILORS: None
ABSTAINED: COUNCILORS: Mayor Gil or
ATTEST:

RA PIMENTEL, MMC

ASSISTANT CITY CLERK

CITY OF SANTA CLARA
Attachments incorporated by reference:

1. Agreement for Services
Resolution/Eugene Burger Page 4 of 4
Rev: 11 /22/17

EBIX Insurance No. S200004811

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND

EUGENE BURGER MANAGEMENT CORPORATION

PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Eugene Burger Management Corporation a California corporation, (Contractor). City and Contractor may be referred to individually as a "Party" or coliecfively 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. Contractor represents that it, and its subcontractors, 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 agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor 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 —Schedule of Fees
Exhibit C —Insurance Requirements
Exhibit D —Notice of Exercise of Option to Extend Agreement 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, Agreement with Eugene Burger Management Corporation Page 1 Rev. 07-01-18

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. Initial Term. 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 or about September 28, 2021 and terminate on September 30, 2023.

B. Options to Extend. After the Initial Term, the City reserves the right, at its sole discretion, to extend the term of this Agreement for up to three (3) additional one-year terms through September 30, 2026 ("Option Periods"), subject to the appropriation of funds. See Exhibit D for Notice of Exercise to Option to Extend Agreement Form.

3. SCOPE OF SERVICES &PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.

4. WARRANTY
Contractor 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. Contractor agrees to promptly replace or correcf any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City.

5. QUALIFICATIONS OF CONTRACTOR -STANDARD OF CARE
Contractor 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 Contractor's representations regarding its skills and knowledge. Contractor 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 Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in Agreement with Eugene Burger Management Corporation Page 2 Rev. 07-01-18

accordance with Exhibit B, entitled "SCHEDULE OF FEES," The maximum compensation of this Agreement is Three Hundred Sixty-Six Thousand Seven Hundred Eighty-Four Dollars ($366,784), 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 Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

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

B. Termination for Default. If Contractor 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 Contractor.

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, Contractor will deliver to City all City information or material that Contractor has in its possession.

8. ASSIGNMENT AND SUBCONTRACTING
City and Contractor 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. Contractor shall not hire subcontractors without express written permission from City.

Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor 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 CONTRACTOR
Contractor and all persons) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do Agreement with Eugene Burger Management Corporation Page 3 Rev. 07-01-18

not act as agents) or employees) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement. 1'I. CONFIDENTIALITY OF MATERIAL
Ail ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other wriften information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor 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 Contractor which is otherwise known to Contractor 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 Contractor 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, Contractor 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 CONTRACTOR
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 Contractor for the purpose of verifying any and all charges made by Contractor in connection wifh Contractor compensation under this Agreement, including termination of Contractor. Contractor 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. Contractor 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.

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

Agreement with Eugene Burger Management Corporation Page 4 Rev. 07-01-18

14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor 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 al( 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, ar in any way connected with the Services performed by Contractor pursuant to this Agreement —including claims of any kind by Contractor's employees or persons contracting with Contractor 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 indemnify 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. Contractor'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, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.

C. To the extent Contractor 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, Contractor warrants that it is meeting its obligations under fhe Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor's responsibilities under the Act.

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

16. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waivers) 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.

Agreement with Eugene Burger Management Corporation Page 5 Rev. 07-01-18

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: City Manager's Office
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]
And to Contractor addressed as follows:

Eugene Burger Management Corporation
Attention; Jay Kacirk
6600 Hunter Drive
Rohnert Park, CA 94928
and by e-mail at jaykacirk@ebmc,com
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
Contractor 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, Contractor's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter2.~30), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Contractor has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).

19. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and Agreement with Eugene Burger Management Corporation Page 6 Rev. 07-01-18

following, and certifies that it does not know of any facts which would violafe these code provisions. Contractor will advise City if a conflict arises.

20. FAIR EMPLOYMENT
Contractor 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
Contractor 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.

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.

Agreement with Eugene Burger Management Corporation Page 7 Rev. 07-01-18

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
Appro s to Form:

Office f e Ci y Attorney
City of Santa Clara
Dated: i ~ ~~ I ~ (~~
~ ~ , i,Y~~.~~~
DEANN .SANTANA
City Man er
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
"CITY"

EUGENE BURGER MANAGEMENT CORPORATION
a California corporation
Dated: /U ~~ .(
By (Signature): ~ t~..

Name: ~~c- r'~4~r~1 f3U(zC~2
Title: resident
Principal Place of 6600 Hunter Drive
Business Address: Rohnert Park CA 94928
Email Address: [email protected] ~ ✓~' ~ ~ ~' y P r~r ~ c, , Cv~ Telephone: (707) 584-5123
Fax: (707) 584-5724
"CONTRACTOR"
Agreement with Eugene Burger Management Corporation Page 8 Rev. 07-01-18

EXHIBIT A

SCOPE OF SERVICES
1, DESCRIPTION OF WORK

1.1. Under this Agreement, Contractor will provide property management services necessary to rent, lease, operate, and manage two properties owned by the City of Santa Clara ("City").

1.2. The property addresses are as follows:

1.2.1. Commerce Plaza (Current Agreement Expires on April 11, 2022) 900 Lafayette Street
Santa Clara, CA 95050

1.2.2. Peddler's Plaza (Current Agreement Expires on September 30, 2021) 1000 Lafayette Street
Santa Clara, CA 95050

1.3. To the extent not inconsistent with this Agreement between the City and Con#ractor including this Scope of Services, the City's RFP# 20-21-55 (including subsequent updates) and Contractor's proposal response dated June 8, 2021 are hereby incorporated by reference herein, and shall supplement this Scope of Services and be subject to the terms and conditions of the Agreement.

2. REQUIREMENTS

2.1. Contractor must maintain a valid real estate broker's license for the term of this Agreement and be in good standing with the California Department of Consumer Affairs and the California Department of Real Estate.

2.2. Contractor has reasonable and working knowledge and understanding of the general principles and responsibilities of property management including, but not limited to, the laws concerning real estate licensing, contracts, tenant/►andlord responsibilities, fair housing, employment, property protection and insurance.

2.3. Contractor has working knowledge of principles of business administration, accounting, insurance, repairs and maintenance, and public relations.

3. SERVICE REQUIREMENTS

3.1. Contractor will provide property management services necessary to rent, lease, operate and manage two properties owned by the City of Santa Clara ("City"). Services will include, but not limited to, the following services:

Agreement with Eugene Burger Management CorporationlExhibit A-Scope of Services Page 1 Rev. 07-01-18

3.1.1. Operation, Maintenance, and Repair Services. Contractor will manage, coordinate, and inspect tha exterior operation, maintenance, and repair activities at the City's properties identified herein to maintain properties in good repair in accordance with all local codes, and in a condition at all times acceptable to the City. Duties include, but not limited to, the oversight of the existing vendor base, and take actions necessary to ensure vendors are providing services as agreed upon in the vendor's contract with the City for landscape services, cleaning, painting, decorating, plumbing, carpentry, and other maintenance and repair work as may be necessary, subject to any limitations imposed by the City in addition to those contained herein. The following will apply:

3.1.1.1. All maintenance and/or repairs cosfing in excess of $1,000 requires prior approval of the City, with the exception of emergency repairs involving imminent danger to persons or property. Contractor shall notify City of all relevant facts as soon as possible after the occurrence of the events) giving rise to the expenditure.

3.1.1.2. The contracts for the vendors, including but not limited to landscapers, janitors, painters, shall be contracts entered into directly by the City with the vendor. The Contractor is not authorized to executing contracts on behalf of the City and these vendors are not the subcontractors of Contractor.

3.1.1.3. City will provide Contractor with a list of city-approved vendors to be called on for repair and maintenance services. Subject to the approval process requirement in this Agreement,
Contractor is authorized to engage, manage and oversee city- approved vendors that are providing services to the Property.

3.1.1.4. Contractor will promptly receive and investigate all service requests from tenants, take such action thereon as may be justified, and will keep records of the same. Emergency requests will be received and serviced on a Twenty-four (24) hour basis and reported to the City by the next business day.

Contractor shall respond to emergency requests within two (2) hours from receipt of cal(.

3.1.1.5. Ensure no improvements or modifications are made to the property without City approval.

3.1.1.6. Coordinate legal action against tenants and contractors as needed.

3.1.1.7. Contractor will review and request City approval for payment Agreement with Eugene Burger Management CorporationlExhibit A-Scope of Services Page 2 Rev. 07-01-18

of vendor's invoices for services in a timely manner.

Contractor, on behalf of the City, will pay invoices which are related to the Property from the City's "Operating" Account.

3.1.1.8. Contractor will be responsible for collection of all costs from lessees) for any maintenance and repairs on the properties herein that are the lessee's responsibility pursuant to the lease agreement.

3.1.2. ,easing Services

3.1.2.1. Engage with tenants and coordinate with the Cify on negotiations and finalization with Lessees) for lease
agreements,

3.1.2.2. Ensure compliance with the lease agreement on behalf of the City.

3.1.2.3, Address any tenant concerns related to the physical condition of the property.

3.1.2.4. Maintain accurate records including procedures for enforcing the terms of lease agreements, and annual inspections to ensure compliance with Federal, State, and Local Housing Quality Standards and transmit said records and reports to the City on a monthly basis.

3.1.2.5. Manage and resolve conflicts among tenants. Document and keep all record of communications with tenants on issues, complaints, and resolutions.

3.1,2.6. Collection of Rents and other Receipts. Contractor will collect, when due, all rents, charges and other amounts receivable on the City's account in connection with the management and operation of City owned properties identified herein. Such receipts will be deposited in an Operating Account, separate from all other accounts and funds, with a bank whose deposits are insured by the Federal Deposit
Insurance Corporation. This account will be setup as a Trust Account with the City's name and designated of record as "Eugene Burger Management Corporation Trust Account FBO City of Santa Clara".

3.1.3. Records and Reports. Contractor will have the following responsibilities with respect to records and reports:

3.1.3.1. Annual Management Plan. An annual management plan incorporating an annual budget is to be developed by the Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 3 Rev. 07-01-18

Contractor for the project each year beginning with the project's next fiscal year, which beings on July 1 St each year.

An interim plan, including an interim budget is to be
developed, if necessary, to provide guidance from the
beginning of this contract to the beginning of the next fiscal year. The annual management plan and budget shall set forth the financial, physical and operational goals to be achieved by the project in the succeeding fiscal year as well as any other special goals or interests set forth by the City. The annual budget shall include the estimated costs of management
services, utilities, maintenance services, repair services, janitorial services, landscape services, supplies and materials, misc. taxes and fees, insurance and capital costs, if any. The annual management plan and budget is due to the City for approval on or before March 1St of each operating year as part of the City's annual budget process.

3.1.3.2. Contractor will establish and maintain a comprehensive system of records, books, and accounts in a manner
satisfactory to the City, which shall be kept on an individual property basis.

3.1.3.3. With respect to each fiscal year ending during the term of this Agreement, the Contractor will, upon the specific direction of the City, have an annual financial report prepared by a Certified Public Accountant or other person acceptable to the City, The report will be certified by the preparer and the Contractor and will be submitted to the City within sixty (60) days after the end of the fiscal year, for the City's further certification. Compensation for the preparer's services will be paid out of the Operating Account as an expense of the
Project.

3.1.3.4. Contractor will prepare a monthly report comparing actual and budgeted figures for receipts and disbursements and will submit each such report to the City on or about ten (10) days after the end of the month covered.

3.1.3.5. Contractor will furnish such information (including occupancy reports) as may be requested by the City from time to time with respect to the financial, physical or operational conditions of the City owned properties.

3.1.3.6. On or about the tenth (10th) day of each month, the Contractor will furnish the City with a statement of receipts and
disbursements during the previous month, and with a schedule of accounts receivable and payable, and reconciled bank Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 4 Rev. 07-01-18

statements for the Operating Account and Security Account (if any) as of the end of the previous month,

3.1.3.7. On or about the tenth (10th) day of each month, the Contractor will furnish the owner with an itemized list of all delinquent accounts, including rental accounts as of the end of the previous monfh.

3.1.4. Accounting Services

3.1.4.1. Fidelity Bond. The Contractor will furnish, at its own expense, an insurance coverage policy for misappropriation in a
principal sum which is at least equal to the gross potential income for two months and is conditioned to protect the City against misappropriation of Project funds by the Contractor and its employees.

3.1.4.2. Annual operating budgets for the City owned properties identified herein will be as approved by the City and
incorporated in the Annual Management Plan.

3.2. Disbursements from Operating Account. Contractor shall pay all items of expense for the operation, maintenance and supervision and management of the properties with the funds in the Operating Account. Operating expenses include but are not limited to management fees, utilities, maintenance services, repair services, janitorial services, landscape services, supplies and materials, misc. taxes and fees, insurance, etc. To ensure sufficient funds are available in the Operating Account, City will deposit in the Operating Account, beginning on or before the Effective Date, at the amount equal to the budgeted or otherwise approved expenses for the two (2) months period. City shall thereafter maintain an amount of at least the budgeted or otherwise approved expenses for the next two rolling months, leaving at al(times an average of two extra months of funding in the Operating Account.

3.2.1. As stated in 3.1.3.4, Contractor shall remit the rent collected, less any operating expenses, in the Operating Account to the City on or about the tenth (10th) day of each month following. Contractor shall provide a statement of receipts and disbursements during the previous month, and with a schedule of accounts receivable and payable, and reconciled bank statements for the Operating Account at the time of remittance.

3.3. Other Services

3.3.1. Perform, record, and submit to the City a bi-annual visual inspection.

3.3.2. Provide a detailed monthly management report to the City to include:

Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 5 Rev. 07-01-18

3.3.2.1. Monthly maintenance, preventative maintenance, and tenant requested maintenance.

3.3.2.2. Onsite property visits, inspections, and complaint logs.

3.3.2.3. Lease agreement enforcement issues.

3.3.2.4. Legal matfers.

3.3.3. Provide annual operating budget for both properties to the Cify for review and approval.

Agreement with Eugene Burger Management Corporation/Exhibit A-Scope of Services Page 6 Rev. 07-01-18

EXHIBIT B

COMPENSATION
1, MAXIMUM COMPENSATION

1.1. The maximum amount payable for property management services provided under this Agreement and as set forth below shall not exceed Three Hundred Sixty-Six Thousand Seven Hundred Eighty-Four Dollars ($366,784), during the Initial Term of the Agreement. Any additional services requested by the City that would exceed the preceding maximum amount will be addressed in an Amendment to the Agreement. No additional services will be performed unless both Parties execute an Amendment outlining the services requested and the compensation agreed for such services.

2. FEES

2.1. In consideration of the property management services rendered to City by Contractor under this Agreement the City shall pay the following fees:

Monthly Rate initial Term Monthly Rate ~nitiai Term
Description Initial Term Year 1 of 2 initial Term Year 2 of 2 Year 1 of 2 Year 2 of 2
Commerce Plaza* $8,000 $40,000 $8,150 $97,800
Peddler's Plaza $1,500 $18,000 $1,525 $18,300
Total for Annual Management Services $58,000 $116,100
for Each Property
TOTAL FOR ANNUAL MANAGEMENT SERVICES FOR INITIAL TERM $174,100 Description Initial Term Year 1 of 2 Fees Initial Term Year 2 of 2 Fees Accountin Services
Commerce Piaza $700IMonth $715/Month
Peddler's Plaza $300/Month $305/Month
TOTAL FOR ACCOUNTING SERVICES FOR INITIAL $19,340
TERM
Construction Management Fees 10% of Improvement Costs
Leasing Services
Agreement with Eugene Burger Management CorporationlExhibit B-Schedule of Fees Page 1 Rev. 07-01-18

For vacant space new tenants:
6% of the fixed annual minimum rent payable under the terms of the original lease during the first three (3) years of the lease
- 5% of the fixed annual minimum rent payable during the next two years (2) of the original lease
- 4% of all rent payable thereafter during the sixth and subsequent years of the original lease
For existing tenants:
- Renewal expansion rates for existing tenants will be 50% of the leasing fee for new tenants identified above.

TOTAL ESTIMATE FOR LEASING SERVICES FOR $140,000

INITIAL TERM
CONTINGENCY 10%) $33,344
MAXIMUM COMPENSATION NOT-TO-EXCEED FOR $366,784

INITIAL TERM
*Property Management Services for Commerce Plaza will not begin until April 2022, the amount noted for the management service fee for this location is far only five months for year 1 of 2.

2.2. Contractor is entitled to the leasing fee specified in the above table when (i) the lease is fully executed with tenant (ii) the first month's rent and security deposit (if applicable) is paid to the City.

3. PRICING AND OPTION RENEWALS

3.1. Pricing is firm fixed for the Initial Term of the Agreement.

3.2. Price Adjustments: Contractor may request adjustments to rates prior to any one-year option to renew the Agreement after the Initial Term. Price increase requests must be tied to CPI, PP1, or relevant industry specific index. Requests for increase must be fully documented by Contractor. Price adjustments are subject to City's approval.

4. INVOICING

4.1. Contractor shall invoice the City on a monthly basis for Services provided by the Contractor during the preceding month on an invoice and in the format approved by the City and is subject to verification and approval by the City.

42. City will pay Contractor within thirty (30) days of City's receipt of an approved invoice.

Agreement with Eugene Burger Management Corporation/Exhibit B-Schedule of Fees Page 2 Rev. 07-01-18

EXHIBIT C

INSURANCE REQUIREMENTS
W ithout 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, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:

A. COMMERCIAL GENERAL LIABILITY INSURANCE
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:
$2,000,000 Each occurrence
$2,000,000 General aggregate
$2,000,000 Products/Completed Operations aggregate
$2,000,000 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 least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.

Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 1 Rev. 07-01-18

C. WORKERS' COMPENSATION
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 Acts) 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. 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 from, any other insurance which the Indemnities may possess, including any self-insurance orself-insured retention they may have. Any other insurance Indemnities may possess shag 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 unfit 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,
Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 2 Rev. 07-01-18

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 nan-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non- renewa t.

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 D of this Exhibit C, above.

E. 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 limiks. 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 projecf reserves the right to charge City or Contractor for the cast of additional insurance coverage required 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.

F. 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 cast 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, Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 3 Rev. 07-01-18

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.

G. 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 emailed to:
ctsantaclara a.ebix.com
or mailed to:

EBIX Inc.

City of Santa Clara Electric Department
P.O. Box 100085 — S2
Duluth, GA 30096
Telephone number: 951-766-2280
Fax number: 770-325-0409
H. 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.

Agreement with Eugene Burger Management Corporation/Exhibit C-Insurance Requirements Page 4 Rev. 07-01-18

EXHIBIT D

NOTICE OF EXERCISE OF OPTION TO EXTEND AGREEMENT
AGREEMENT TITLE:

CONTRACTOR:

DATE:

Pursuant to Section of the Agreement referenced above, the City of Santa Clara hereby exercises its option to extend the term under the following provisions:

OPTION NO. # of #

NEW OPTION TERM
Be in date:

End date:
❑ CHANGES IN RATE OF COMPENSATION
Percenta e chan e in CPI u on which ad'ustment is based:

Pursuant to Section ~ of fhe Agreement the rates of compensation are hereby adjusted as follows:
(use attachment if necessary)
MAXIMUM COMPENSATION for New O tion Term:

For the option term exercised by this Notice, City shall pay Contractor an amount not to exceed the amount set forth above for Contractor's services and reimbursable expenses, if any. The undersigned signing on behalf of the Cify of Santa Glara hereby certifies that an unexpended appropriation is available for the term exercised by this Notice, and that funds are available as of the date of this signature.

Approved as to Form:

Dated:

Office of the City Attorney DEANNA J. SANTANA
City of Santa Clara City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
Agreement with Eugene Burger Management Corporation/Exhibit D-Notice of Option to Extend Agreement Page 1
Rev. 07-01-18