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Terminix - Gilroy Museum Fumigation (2019)AGREEMENT FOR SERVICES (For contracts over $5,000 —NON-DESIGN, NON -ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 3rd day of October, 2019, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: TERMINIX, having a principal place of business at 1610 Moffett Street, Suite B Salinas, CA 93905. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on October 14, 2019, and will continue in effect through October 14, 2020 with an extension of one year at a time for a period up to four years at City's sole option to be exercised by written notice to be given by City not less than thirty (30) days nor more than sixty (60) days prior to October 13, 2020, unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement terminate this Agreement regardless of any other provision stated herein. ewq Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONTRACTOR A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit "A" ("Specific Provisions") and Exhibit "B" ("Scope of Services"), within the time periods described in Exhibit "C" ("Milestone Schedule"). 4835-2267-0361v1 _1 LAC104706083 B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR'S services. C. Employment of Assistants CONTRACTOR may, at the CONTRACTOR'S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR'S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR'S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit "D" ("Payment Schedule"). In no event however shall the total compensation paid to CONTRACTOR exceed $10,000. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit I'D". No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A", Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. 4836-2267-0361v1 _2_ LAM04706083 D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONTRACTOR agrees to provide workers' compensation insurance for CONTRACTOR'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONTRACTOR'S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRACTOR'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY'S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terns. 4836-2267-0361v1 -3- LAC104706083 E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONTRACTOR is not CITY'S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONTRACTOR'S payments; • CITY will not make state or federal unemployment insurance contributions on CONTRACTOR'S behalf; • CITY will not withhold state or federal income tax from payment to CONTRACTOR; • CITY will not make disability insurance contributions on behalf of CONTRACTOR; • CITY will not obtain workers' compensation insurance on behalf of CONTRACTOR. G. Prevailing Wage CONTRACTOR agrees and acknowledges that it is its obligation to determine whether, and to what extent, any work performed is or any workers employed relative to any construction to be performed under this Agreement are subject to any Codes, Ordinances, Resolutions, Rules and other Regulations and established policies of CITY and the laws of the State of California and the United States, including, without limitation, the California Labor Code and Public Contract Code relating to public contracting and prevailing wage requirements ("Prevailing Wage Laws"). To the extent Prevailing Wage Laws apply to work performed or workers employed for the purpose of performing work under this Agreement, CONTRACTOR shall fully comply with and ensure that all workers and/or subcontractors are informed of and comply with all Prevailing Wage Laws and specifically any applicable requirement of California Labor Code Sections 1720 et seq. and 1770 et seq. and the regulations thereunder, which require the payment of prevailing wage rates based on labor classification, as determined by the State of California, and the performance of other requirements on certain "public works" or "maintenance" projects. It is the duty of CONTRACTOR to post a copy of applicable prevailing wages at the job site. Prevailing wage information may be obtained at www.dir.ca. eov. 4835-2267-0361v1 _4 _ LAM4706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR's Business/ Death of CONTRACTOR CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONTRACTOR is an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY' S option, may tenninate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONTRACTOR'S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR'S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terns of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR'S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY 4835-2267.0361v1 LAM04706083 -5- may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONTRACTOR's duties by any new CONTRACTOR hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ("the Act") in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. 4836-2267-0361v1 -6- LAC104706083 C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. 4835-2267-0361v1 LAM04706083 H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. 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. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: TERMINIX By: Name: Title: d-,A 2 /?2 Social Security or Taxpayer Identification Number 7 S-S-7 4836-2267-03610 LAC104706083 CITY: a CITY OF GILROY By: N e: Girum Awoke Title: Public Works Director Approved as to Form: City Attorney 4835-2267-0361v1 _9_ LAM04706083 Attest: City r V EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER, CONTRACTOR shall provide the services indicated on the attached Exhibit "B", Scope of Services ("Services"). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign . who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE, A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written "Notice to Proceed", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Walter Dunckel shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. ("Notices") of this Exhibit "A". B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C". IV. PAYMENT OF FEES AND DIRECT EXPENSES. Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. 4836-2267-0361 v1 _ 1 LAC104706083 Direct expenses are charges and fees not included in Exhibit `B". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR'S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well -organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY'S review, acceptance or payment for any of the Services shall not be construed 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, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR'S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. 4835-2267-0361v1 -2- LAC104706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral 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 the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR'S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use CITY' S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports 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 subject to Section V.D of this Exhibit "A". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, 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 for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third parry or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. 4835-2267-0361v1 LAC104706083 -3- H. NOTICES. Notices are to be sent as follows: CITY: Walter Dunckel City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: Terminix 1610 Moffett Street, Suite B Salinas. CA 93905 FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. ® If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City -adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4835-2267-0361vt LAM04706083 EXHIBIT "B" SCOPE OF SERVICES Perform fumigation treatment of the structure listed below to control for infestations of drywood termites (kalotermes spp., incisitermes spp., cryptotermes spp.,), in a manner consistent with State law and in accordance with any other applicable regulatory requirement. Structure and site location is described as: Gilroy Museum 195 5t' Street Gilroy, CA 95020 This contract does not provide for the repair of damage caused by such drywood termites. 4836-2267-0361A LAC104706083 *Revised 7/19/19 *Prevailing Wage Compliant TERM/N/X COMMERCIAL TENT DEFEND SERVICE PLAN FOR DRYWOOD TERMITES THIS AGREEMENT PROVIDES FOR FUMIGATION TREATMENT OF A STRUCTURE TO CONTROL FOR INFESTATIONS OF DRYWOOD TERMITES (KALOTERMES SPP., INC/SITERMES SPP., CRYPTOTERMES SPP.) BUT DOES NOT PROVIDE FOR THE REPAIR OF DAMAGE CAUSED BY SUCH DRYWOOD TERMITES. Customer (print name) City of GIImy Main Phone ALT Phone Mailing Address City State Zip Code Property Address 195 51h Street _ City �Ilrov State LAzip Code 95020 Description of Structure(s) Covered MURP_I1M Email PAYMENT OPTIONS SUMMARY OF CHARGES AND PAYMENTS ❑ Initial cash, check or credit card down payment of $ 1. SERVICE(S) PURCHASED will be due upon acceptance of this Agreement by Terminix, and A. INITIAL CHARGES (Initial Fumigation ❑ 12 ❑ 18 installments $ be 9302, or monthly of will paid as and Initial Term Fee) ...................................$ indicated on a Retail Installment Contract. I understand that these installments are subject to a Finance Charge and that if I select B. Aral Renewals U 930. this option, I will be required to sign a Retail Installment Contract. year(s) @ $ per year (Limit 2 Years) $ 0 I further understand that this option is only available subject to 9302. credit approval and that the Finance Charge and other terms Subtotal (Sum A + B). . . . . . . .. . ........ . . ..... . . . .. . ...$ and conditions not set forth herein will be contained in the Retail 2, TAX ..................................................$ 0 Installment Contract, fA Initial 20% down payment of $ 0 by cash, check or 3. GRAND TOTAL (1 + 2).................................. $ 9302 credit card will be due upon acceptance of this Agreement by 0 4. LESS $ DOWN PAYMENT ..................... ($ 0 Terminix, with the remaining balance to be paid upon completion of the initial treatment or installation. 5. LESS AMOUNT TO BE PAID PER RETAIL 0 ❑ One-time cash, check or credit card payment will be paid upon INSTALLMENT AGREEMENT ........................... ($ 1 acceptance of this Agreement by Terminix. 6. BALANCE TO BE PAID TO TERMINIX 9302. ❑ One-time credit card payment will be paid upon completion of AT COMPLETION (Sum 3 - 4 - 5) ........................ $ the initial treatment or installation. By signing the Card Holder BALANCE TO BE PAID BY (Check One): Signature line in the box below, I, the Card Holder, am authorizing ❑ Cash ❑ Check ❑ Money Order ❑ Credit Card Terminix to process this one-time credit card payment upon the 930. completion of the initial treatment or installation without further ANNUAL RENEWAL TERM FEE ...........................$ signature or authorization from me, OWNERSHIP TRANSFER FEE .............................$ 0 Credit Card Type: ❑ MasterCard ❑ Visa ❑ Discover ❑ AMEX Credit Card # Name (as it appears on credit card) Card Holder Signature Card Exp. Date Customer acknowledges, accepts and agrees that: • Terminix has provided the Customer with a copy of the manufacturer's specimen label or other state -required disclosures for the fumigant(s), which will be used to treat the above -named property. • Terminix has provided the Customer with an Inspection Graph as described in Section 5 of the Terms and Conditions on page 2 of this Agreement, which is a part of this Agreement and is incorporated by reference herein. • Terminix has provided to Customer for review and execution the Wood Destroying Pests and Organisms Inspection Report as required by Cal. Bus. & Prof. Code §8516, which is a part of this Agreement and is incorporated by reference herein. • Terminix has provided the Customer with Notice to Owner/Tenant as required by Cal. Bus. & Prof. Code §8538. • Terminix has provided the Customer with Occupants Fumigation Notice and Pesticide Disclosure Statement as required by Cal. Code of Regulations, Title 16, Article 4, §1970.4. • Terminix has provided the Customer with the following Notices: (a) Preparation by Owner or Occupant Prior To Fumigation Notice and (b) Fumigation Services Notice. Customer accepts and agrees to the Terms and Conditions on pages 1-2 of this Agreement, including the MANDATORY ARBITRATION and CLASS ACTION WAIVER provisions in Sections 20 and 21 of the Terms and Conditions on page 2 of this Agreement: Customer's Company Name Customer's Authorized Representative (signature) ` ~ Customer's Authorized Representative alinshaw Customer's Authorized Representative Date Terminix Representative (signature) Date / "-lTerminix Representative (print name) Terminix Branch Phone - Terminix Branch Address 1610 Moffett Street, Suite B, Salinas, CA 93906 Terminix License No. F'KU8U1 In the event you have any questions or complaints, you may contact a Terminix representative by calling 1-800-TELLTMX (1-800-835-5869). www.terminix.com Key #37981 Commercial Tent Defend Service Plan (v 7.22.2015) New 9/2015 (s) 2015 The Terminix International Company Limited Partnership. All rights reserved. BRANCH COPY TERMS AND CONDITIONS, 1. INITIAL INSPECTION. Terminix shall conduct a full inspection of the Structures for wood destroying pests and organisms and provide a written report to Customer within ten (10) business days of the date of the inspection and prior to commencing the provision of any services under this Agreement in accordance with Cal. Bus. & Prof. Code 98516. 2. INITIAL TERM; RENEWAL. The term of this Agreement shall commence on the date of initial treatment of the Structures with the Tent Defend System and shall continue thereafter for one year (the "Initial Term'), unless terminated earlier as set forth herein. Customer may extend the Initial Term far additional one year periods (each a "Renewal Term") for so long as Customer owns the property described on the inspection Graph by paying the Annual Renewal Term Fee set forth above prior to the expiration of the Initial Term or any Renewal Term. Terminix reserves the right to revise the Annual Renewal Fee following the expiration of the second Renewal Term. 3. NOTICE OF WORK COMPLETED AND NOT COMPLETED. Within ten (10) business days of the date of the completion of the initial fumigation service, Terminix will file with the California Structural Pest Control Board and furnish to customer a copy of the written Notice of Work Completed and Not Completed in accordance with Cal. Bus. & Prof. Code §8518 and Title 16, Article 4, §1996.2 of the California Code of Regulations respectively. 4. FEES. Customer shall pay the fees for the initial treatment of the Structures with the Tent Defend system and Services for the Initial Term and any Renewal Term based upon the Payment Option selected by Customer. 5, INSPECTION GRAPH. This Inspection Graph prepared by Terminix and provided to Customer is a record of a visual, non-destructive inspection by Terminix of certain readily accessible areas of the identified property for visible termite infestation/ damage. Terminix is not responsible for repairs to damages identified on the Inspection Graph. In addition, hidden damage may exist in concealed, obstructed or Inaccessible areas. No attempt to remove siding, plastic or sheetrock insulation, carpeting, paneling, etc. to search for hidden damage was made. Terminix cannot guarantee that the damage disclosed by visual inspection of the premises depicted In the Inspection Graph represents the entirety of the damage which may exist as of the date of the Initial control application, Terminix shaft not be responsible for repair of any damages to the Structures including without limitation, any damage which existed in areas or in structural members which were not accessible for visual inspection as of the date of the Inspection Graph, if X (circled or not) appears on the Inspection Graph, It is advisable that a qualified building expert inspect the property to determine what effect, if any, the infestation/damage has upon the structural integrity of the property, 6. LIMITED PLAN SERVICES; NO COVERAGE FOR DAMAGES. The sole obligation of Terminix during the InitlalTerm or any Renewal Term, as applicable, of this Agreement (hereinafter the "Services") is as follows: (a) Treat the Structures as described on the inspection Graph attached to this Agreement with the Terminix Tent Defend System (the "Tent Defend Svstem"); (b) Provide additional fumigation treatments at no additional charge to Customer, as deemed necessary by Terminix, to provide ongoing prevention, control and/or elimination of Drywood Termite colonies; and (c) Conduct a full inspection of the Structures annually or at any time upon the request of Customer for termite activity. THIS AGREEMENT DOES NOT COVER AND TERMINIX SHALL HAVE NO OBLIGATION WHATSOEVER, WHETHER EXPRESS OR IMPLIED, TO REPAIR ANY DAMAGE CAUSED BY DRYWOOD TERMITES REGARDLESS OF WHETHER SUCH DAMAGE OCCURS PRIOR TO OR SUBSEQUENT TO THE DATE OF INITIAL TREATMENT WITH THE TENT DEFEND SYSTEM. All corrections of infestations or infections covered by this control services agreement shall be completed within 6 months of discovery, unless otherwise agreed to in writing by the parties. 7. PROTECTION AGAINST DRYWOOD TERMITES. CUSTOMER ACKNOWLEDGES THAT THE FOLLOWING WOOD -DESTROYING ORGANISMS COULD INFEST OR INFECT CUSTOMER'S STRUCTURES: (A) SUBTERRANEAN (IN -GROUND) TERMITES (RETiCULITERMES SSP., HETEROTERMES SPP.) AND FORMOSAN TERMITES (COPTOTERMES SPP.); (B) DRYWOOD TERMITES (KALOTERMESSPP., INCISITERMES SPP., CRYPTOTERMES SPP.); (C) DAMPWOOD TERMITES (ZOOTERMOPSIS SPP., NEOTERMES SPP.); (D) CARPENTER ANTS AND CARPENTER BEES; (E) WOOD - BORING AND/OR POWDER -POST BEETLES; AND (F) WOOD -DECAY FUNGI. THE TERMINIX TENT DEFEND SYSTEM ONLY CONTROLS FOR AND PROTECTS THE STRUCTURES FROM DRYWOOD TERMITES (i<ALOTERMESSPA, INCISITERMESSPA, CRYPTOTERMES SPP.) (COLLECTIVELY "DRYWOOD TE��11ITSS") INFESTATIONS. THE TENT DEFEND SYSTEM DOES NOT CONTROL OR PRbTI CT THE STRUCTURES FROM SUBTERRANEAN (IN -GROUND) TERMITES (RETICULITERMES SSA, HETEROTERMES SPP.) AND FORMOSAN TERMITES (COPTOTERMES SPP.) INFESTATIONS OR OTHER WOOD DESTROYING ORGANISMS, INCLUDING BUT NOT LIMITED To, AS DAMPWOOD TERMITES, CARPENTER ANTS, POWDER -POST BEETLES OR WOOD DECAY FUNGI. S. ACCESS TO PROPERTY. Customer must allow Terminix access to the Structures for any purpose contemplated by this Agreement, Including but not limited to reinspectlons, whether the inspections were requested by the Customer or considered necessary by Terminix. The failure to allow Terminix such access will terminate this Agreement without further notice. 9. CUSTOMER COOPERATION. Customer's cooperation is important to ensure the most effective results from Services. Whenever conditions conducive to the breeding and harborage of pests covered by this contract are reported in writing by Terminix to the Customer, and are not corrected by Customer, Terminix cannot ensure effective Services. If Customer fails to correct the conditions noted by Terminix within a reasonable time period, all guarantees as to the effectiveness of the Services in this Agreement shall automatically terminate. Further, additional treatments in areas of such conditions that are not corrected as required shall be paid for by Customer as an extra charge. 10. LIMITATION OF LIABILITY; LIMITED WARRANTY. EXCEPT AS OTHERWISE PROHIBITED BY LAW, TERMINIX DISCLAIMS AND SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE AND/OR LOSS OF ENJOYMENT DAMAGES. THE OBLIGATIONS OF TERMINIX SPECIFICALLY STATED IN THIS AGREEMENT ARE GIVEN IN LIEU OF ANY OTHER OBLIGATION OR RESPONSIBILITY, EXPRESS OR IMPLIED, INCLUDING ANY REPRESENTATION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS AGREEMENT DOES NOT PROVIDE FOR THE REPAIR OF ANY DAMAGE CAUSED BY DRYWOOD TERMITES. THIS AGREEMENT DOES NOT GUARANTEE, AND TERMINIX DOES NOT REPRESENT, THAT TERMITES WILL NOT RETURN FOLLOWING ANY TREATMENTS. 11. WATER LEAKAGE, Water leakage in treated areas, in interior areas or through the roof or exterior walls of the Structures, may destroy the effectiveness of treatment by Terminix and is conducive to new infestation. Customer is responsible for making timely repairs as necessary to stop the leakage. Customer's failure to make timely repairs will terminate this Agreement automatically without further notice. Terminix shall have no responsibility for repairs with respect to water leakage. 12. ADDITIONS OR ALTERATIONS TO STRUCTURES. This Agreement covers the Structures described on the Inspection Graph as of the date of initial treatment with the Tent Defend System. If the Structures are structurally modified, altered or otherwise changed (collectively "Alterations'), Customer must provide Terminix with written notice of such Alterations within ten (10) days of the occurrence of such Alteration. Customer's failure to provide such notice will terminate this Agreement automatically without further notice. The failure of Terminix to discover such Alterations does not release Customer from the obligations to provide written notice to Terminix of the same. Customer shall pay Terminix's then current charges for a service call to evaluate the Alterations and provide additional Tent Defend System treatment as a result of the Alterations. Terminix reserves the right to increase the Annual Renewal Term Fee as a result of the Alterations. 13. OWNERSHIP TRANSFER. Upon transfer of ownership of the Structures, Services may be continued upon request of the new owner and upon payment of the Ownership Transfer Fee set forth on page 1 of this Agreement. In addition, Terminix reserves the right to revise the Annual Renewal Term Fee upon transfer of ownership. In the event the new owner fails to request continuation of this Agreement or does not agree to pay the transfer fee of the revised Annual Renewal Term Fee, this Agreement will terminate automatically as of the date of the change of ownership. 14. FORCE MAJEURE. Terminix shall not be liable to Customer for any failure to perform, or delay in the performance under this Agreement attributable in whole or in part to any cause beyond its reasonable control and without its fault or negligence, including but not limited to acts of God, fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, government actions, war, civil disturbance, insurrection or sabotage. 15. ADDITIONAL DISCLAIMERS. This Agreement does not cover and Terminix will not be responsible for damage resulting from or services required for: (a) termites and/ or any other wood -destroying organisms except as specifically provided herein; (b) moisture conditions, including but not limited to fungus damage and/or water leakage caused by faulty plumbing, roofs, gutters, downspouts and/or poor drainage; (c) masonry failure or grade alterations; (d) inherent structural problem*, including but not limited to, wood to ground contacts; (e) termites entering any rigid foam, wooden or cellulose containing components in contact with the earth and the Structures regardless of whether the component is a part of the Structures; and (f) the failure of Customer to properly cure at Customer's expense any condition that prevents proper treatment or inspection or is conducive to termite infestation. 16. CHANGE IN LAW. Terminix performs its services in accordance with the requirements of law. In the event of a change in existing law as it pertains to the services herein, Terminix reserves the right to revise the Annual Renewal Term Fee or terminate this Agreement. 17. NON-PAYMENT; DEFAULT. in case of non-payment or default by the Customer, Terminix has the right to terminate this Agreement. In addition, cost of collection Including reasonable attorney's fees shall be paid by the Customer, whether suit is filed or not. In addition, interest at the highest legal rate will be assessed for the period of delinquency. 18. CHANGE IN TERMS, At the time of any renewal of this Agreement, Terminix may change this Agreement by adding, deleting or modifying any provision. Terminix will notify the Customer in advance of any such change, and Customer may decline to accept such a change by declining to renew this Agreement. Renewal of this Agreement will constitute acceptance of any such changes. 19, SEVERABILITY. If any part of this Agreement is held to be invalid or unenforceable for any reason, the remaining terms and conditions of this Agreement shall remain in full force and effect. 20. MANDATORY ARBITRATION. Any claim, dispute or controversy, regarding any contract, tort, statute, or otherwise ("Claim ), arising out of or relating to this agreement or the relationships among the parties hereto shall be resolved by one arbitrator through binding arbitration administered by the American Arbitration Association ("AAA"), under the AAA Commercial or Consumer, as applicable, Rules in effect at the time the Claim is filed ("AAA Rules'). Copies of the AAA Rules and forms can be located at www.adrorg, or by calling 1-800 778-7879. The arbitrator's decision shall be final, binding, and non -appealable. Judgment upon the award may be entered and enforced in any court having jurisdiction. This clause is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or of the arbitrator's award; any such suit may be brought only in Federal District Court for the District or, if any such court lacks jurisdiction, in any state court that has jurisdiction, The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the Interpretation, applicability, unconscionability, arbitrability, enforceability or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable. However, the preceding sentence shall not apply to the clause entitled "Class Action Waiver." Venue for arbitration hereunder shall lie in Memphis, TN. 21, CLASS ACTION WAIVER. Any Claim must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding ("Class Action"). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator, THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION, HOWEVER, THE PARTIES UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION, 22. GOVERNING LAW. Except for the Mandatory Arbitration Clause in Section 18 of this Agreement which is governed by and construed In accordance with the Federal Arbitration Act, this Agreement shall be governed by, and construed in accordance with, the laws of the state in which the dispute arises without regard to the conflict of laws provisions. 23. ENTIRE AGREEMENT. This Agreement together with all exhibits thereto constitutes the entire agreement between the parties, supersedes all proposals, oral or written, and all other communications between the parties relating to such subject matter and no other representations or statements will be binding upon the parties. This Agreement may not be modified or amended In any way without the written consent of both parties. www.terminix.com Key #37981 Commercial Tent Defend Service Plan (v 722.2015) New 9/2015 © 2015 The Terminix International Company Limited Partnership. All rights reserved. EXHIBIT "C" MILESTONE SCHEDULE N/A 4835-2267-0361v1 LAC104706083 EXHIBIT "D" PAYMENT SCHEDULE Total contract amount not to exceed $10,000. Invoice to be provided with a detailed itemization of regular labor hours, overtime hours, parts and/or materials used. 4835-2267-0361v1 LAC104706083