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FIFTH AMENDMENT TO LANDSCAPE MAINTENANCE AGREEMENT THIS FIFTH AMENDMENT TO AGREEMENT is entered into on March 7, 2011, by and between Midori Gardens ("Contractor") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). RECITALS: A. The parties entered into Agreement #A-2006-195, dated August 7, 2006, (hereinafter "said Agreement") by which Contractor has provided landscape maintenance in street medians and City owned property. B. By amendments dated October 10, 2008, November 6, 2008, July 20, 2009 and June 21, 2010, the parties agreed to adjust rates to compensate for increases in labor and material costs, provide for services on additional City properties, extend the term of said Agreement and add compensation to pay for services during the extended term. C. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of Services to provide landscape services for additional properties within the City, extend the term and add compensation to pay for services during the additional two-year term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Fifth Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be amended to include additional sites agreed between Contractor and City since the commencement of said Agreement. Additional maintenance sites may be included in the monthly maintenance schedules as agreed by the Executive Director of Public Works, or his designee, and Contractor. 2. Section 2.a., COMPENSATION, shall be deleted in its entirety and replaced with the following: "a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit D-l, attached hereto and incorporated by reference. The total sum to be expended under this Agreement shall not exceed $850,000, annually, for the term from July 1, 2011 through June 30, 2013." Section 3, TERM, shall be deleted in its entirety and replaced with the following: "This Agreement shall commence on August 1, 2006 and continue through June 30, 2013, unless terminated earlier in accordance with Section 12, of said Agreement. However, if City Council fails to appropriate funds for the landscape services during the 2012/2013 fiscal year, said Agreement shall automatically terminate effective June 30, 2012." 25G-3