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HomeMy WebLinkAbout2011/12/13 Item 18CITY COUNCIL AGENDA STATEMENT ~~~~~ CITY OF -'.~CHULAVISTA 12/13/11 Item ~S ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE THIRD AVENUE VILLAGE ASSOCIATION (TAVA) FOR THE MAINTENANCE OF STREETSCAPE IMPROVEMENTS, SIGNAGE, HARDSCAPE TREATMENTS AND OTHER LANDSCAPE IMPROVEMENTS INSTALLED AS PART OF THE THIRD AVENUE STREETSCAPE MASTF~IZ PLAN (TASMP) SUBMITTED BY: ASSISTANT CITY MANAGEi~IRECTOR OF DEVELOPMENT SERVICES DIRECTOR OF PUB WORKS/CITY ENGINEER. REVIEWED BY: CITY MANAGER 4/STHS VOTE: YES ~ NO SiJMMARY On Mazch 22, 2011, Council approved the final design for the Third Avenue Srtreetscape Master Plan (TASMP). The TASMP will provide improvements to the Third Avenue Village ("Village") by providing for the installation of new and/or modification of streetscape elements (consisting of, but not limited to, street appurtenances, irrigation and components, plantings, new signage and components, street trees (existing, and new planting) and components, hazdscape components (pavers & concrete work) and pedestrian and tree lighting and other electrical components). TAVA and its merchants will benefit from the improvements made pursuant to the TASMP by enhancing the overall Third Avenue image and mazketability, which will bring potential customers into the Village. To assure the improvements made as part of the TASMP will receive maintenance services at no additional cost to the City, the Third Avenue Village Association (TAVA) and the City desire to enter into the attached maintenance agreement. ENVIRONMENTAL REVIEW The Director of Development Services has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the 18-1 12/13/11, Item_~ Page 2 of 4 proposed activity was adequately covered in a previously adopted EIR. Pursuant to the California Environmental Quality Act (CEQA) on April 26, 2007 the City, acting as Lead Agency, certified Final Environmental Impact Report-06-O1 ("FEIR-06-O1'!) for the Urban Core Specific Plan ("UCSP"). On January 25, 2011 the City, acting as Lead Agency, having found and determined that certain amendments to the UCSP, including the referenced Third Avenue Streetscape Master Plan ("TASMP"), would not result in significant unmitigated impacts and that only minor technical changes or additions to FEIR-06-O1 were necessary and that none of the conditions described in Section 15162 of the State CEQA Guidelines calling for the prepazation of subsequent document had occurred adopted an Addendum to FEIR-06-O1. Therefore, approval of the subject maintenance agreement for the Third Avenue approved Streetscape, hardscape and landscaping treatment concepts requires no further CEQA actions or determinations. RECOMMENDATION Council adopt the resolution BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION Currently TAVA provides the maintenance services for all existing ,landscape improvements within the Third Avenue Village area as part of a Property-Based Business Improvement District (PBID). Examples of existing landscape improvements', are street furnishings such as benches and plantings and irrigation systems within the; sidewalk paving azea. TAVA also maintains the graffiti removal program in the Village area. The City's public works operations staff currently maintains, as required, the Street and pedestrian lighting, replacing burned out bulbs as required. Currently the City also maintains the lawn medians on Third Avenue while providing maintenance operations in Memorial Park. Also, public works operations provide pruning and upkeep of the existing street tree program within the Third Avenue Village area. The PBID for Third Avenue is a top priority of the City's revitalization effort in the urban core and on June 5, 2001 adopted a Resolution of Intent to form the PBID. I'he PBID provides maintenance initiatives within the District, beyond the baseline currently delivered by the City and therefore inclusive in their responsibilities and dutiles are the general maintenance of the TASMP improvements. The PBID includes a 15 block azea bounded by "E" Street on the north, Church Avenue on the east, Landis Avenue on the west, and "I" Street on the south, with a special focus on Third Avenue properties. There is an existing Lighting and Maintenance District that maintains the Third Avenue Enhanced Maintenance. When the PBID was originally established the Redevelopment Division of the Community Development Department managed the PBID, with technical assistance from the Engineering Department. With these departments no longer in existence, the Public Works Operations staff will manage general oversight of the maintenance services agreement. 18-2 12/13/11, Item Page 3 of 4 City Staff has been working with representatives of TAVA in developing the maintenance schedule for the TASMP. This schedule is included in the ', proposed Agreement. A draft Agreement was reviewed by TAVA representatives and on July 6`" 2011; their Boazd of Directors voted in general support of the proposed Agreement for Maintenance Services. The final draft Agreement was approved by the Board of Directors at the December 7a`, 2011 Board of Directors meeting. The City and TAVA both acknowledge that the TASMP improvements may be implemented in phases. Accordingly, TAVA will only be required to maintain, as set forth herein, the TASMP improvements as the City completes them. The City shall provide 30 days written notice to TAVA of the start date that TAVA is to begin its maintenance of the Improvements. TAVA agrees to begin its maintenance activity by the start date stated in the City's notice. This Agreement does not otherwise relieve TAVA of its required enhanced maintenance services pursuant to the DTCV PBID The term of the Agreement shall commence on the Effective Date and shall iexpire on June 30`" 2016, unless otherwise terminated at an eazlier date. Notwithstanding the foregoing, the parties may elect to extend the Agreement on a 10-year basis lny mutual written agreement. . DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found than no conflicts occur within 500 feet of the boundary of the property, which is the Subject of this action. CURRENT YEAR FISCAL IMPACT Currently the City contributes $82,000 a year to TAVA, which is allocated to maintenance and economic activity within the PBID. The original operation costs of the PBID, which includes Third Avenue enhanced maintenance, slated that costs may be increased in future years, a maximum of five percent (5%) annually. ' It is not anticipated that as a result of the TASMP improvements the City will inctease this contribution amount. The PBID has an operating budget that will provide the necessary funding for yearly maintenance as required by the Agreement. ONGOING FISCAL IMPACT The City's on-going fiscal responsibility will not change by this action or Agreement. The PBID is aware that additional landscape features will be provided along Third Avenue as a result of the Third Avenue Streetscape Master Plan. The PBID is also aware that any additional yearly costs needed to maintain the TASMP improvements will be funded and covered within the PBID total yearly budget and any additional funding from the General Fund other than the current $82,000 is not expected. Entering into this Agreement will however provide the City an assurance that the maintenance will be provided for all improvements and enhancements which exceed those normally provided for a City street. 18-3 12/13/11, Item~~ Page 4 of 4 ATTACHMENTS 1. Maintenance Agreement with the following Exhibits: • Exhibit "A", Maintenance Areas. • Exhibit "B", Maintenance Schedule for TASMP. • Exhibit "C", Insurance Prepared by: Garry B. Williams, Project Manager, Development Services Department H: ITASMPIPBID Maintenance Agreemen[IAgenda Slatememt for TAVA Main[ Agreement 12.13.Il.doc 18-4 Third Avenue Streetscape Master Plan Agreement Exhibit "A" Limits of Maintenance Service Area ;___:: Right of Way Q Parcel Boundary Limits of Maintenance Service Area :_____ Right oflMay Q Parcel Boundary Limits of Maintenance Service Area /~-/ Exhibit "B" Maintenance Schedule for the TASMP Yanll 4C_R T eof MalntenancelFre UenC LI LYREnf Wb CRy FUWre Yaiw06 T/VN LUmn[ TAVANNre Conmenls LIGHTING a.'T a A" single ornamental street li ht 55 EAC annual inspection, cleaning annual, 815 year bulb replacement (70% lumination X % b."T eB"double ornamental street light c"T eE"treeu li hl 27 29 EAC EAC annual inspection, cleaning annual, 815 year bulb replacement p0% lumination uad ins eclion85 ear bulb re lace-$750/ er bulb X x x d"T eF"treeu li hl e."T eG"heeu li ht f. low voila eli Min transformer 21 23 EAC EAC EAC uarted ins action 85 ear bulb re lace-8150/ er bulb uarteA Ins eclion85 ear bul0 re lace-81501 er bulb 10 ears lice x x x .meter edestal EAG 20 ears life X x h. ower edestal i. sbeelli hl 7 EAC EAC 20 ears life ann. Ins act, bulb r lace 5 ears, re lace fixtures B m 10 Bare X Nla WA x NIA PAVING a. laza street ennancetl avers D. laza stone avers 8,020 13,200 SF SF annual inspection, ongoing replacement es needed, annual spray treatments 8deaning ann. ins ed, on oin re lace as neatlad annual spra VeatmnVdean X % crosswalk enhanced avers 8,050 SF ann. inspect, ongoing re Icmnt as neetled, annuals ray treaVdean X scam etl % x SIGNAGE a. directo kiosk 7 EAC mos. ins ec(4mos than etlireno 5 rbulb re lacement x x b. other si ns annual ins eclion 10 Barre lacement LANDSCAPE a. irri ation 16300 SF month) Ins eclion maintenance8re airs x x x x c. ex ueen alms 19 EAC annual Ins anion, tnmmin 8 runin X x d. new ueen alms e. ex. street trees f. new accent trees .lurt ex. Metlian islands) i. Irri atlon booster um 24 6] 52 8,040 EAC EAC EAC SF EAC annual ins anion, tdmmin & mnin annual ins anion, Inmmin 8 prunin annual ins eclion, Vimmin 8 runin bi-month) mowin and ed in 3months fertilizin bi-annual ins action 810 ear re lacement X X X (mad to X X % NA x x" x x X - X MTS x STREET FURNITURE a. bollards et EAC annual Ins eclion aintin 8 re airs x x b. news a er racks f. Vee rates 1 76 EAC EAC month) Ins action maintenance8re airs annual ins ec~ion8re airs 10 ear re lacement % s x x x x x x xs ., x % t, STORM WATER SYSTEMS Flltera) t.,. annual ins eclion, deanin 8 re airs as needetl X X UTILITIES a. waters stems b. electrical s stems conduit, boxes, wire, 1 1 EACH EACH % X X % metlian % x x X x x STREETS a. Street Swee in 1 annual contract X X General Notes: TAVA is ahead handlin current) t oft ! ~~ EXHIBIT C A. INSURANCE. TAVA agrees to abide by the following insurance requirements: 1. General. TAVA must procure and maintain, during the period of perfo~rrtance of this Agreement, and for twelve months after completion, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under this Agreement and the results of that work by the TAVA, his agents, representatives, employees or subcontractors, and provide documentation of same prior to commencement of work. 2. Minimum Scone of Insurance. Coverage must be at least as broad as: a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). c. c. WC. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 3. Minimum Limits of Insurance. TAVA must maintain limits no less Chan those included in the table below: i. General Liability: $5,000,000 per occurrence for bodily injury, personal (Including injury, (including death), and property damage. If operations, Commercial General Liability insurance with a general products and aggregate limit is used, either the general aggregate limit completed must apply separately to this Project/location or tlhe operations, as general aggregate limit must be twice the required applicable) occurrence limit. The required five million ($S,Op0,000) Liability Limit maybe met by way of combined'Primary and Umbrella or Excess Liability limits ii. Automobile $1,000,000 per accident for bodily injury, including death, Liability: and property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured 18-7 retentions as they pertain to the City, its officers, officials, employees and volunteers; or TAVA will provide a financial guazantee satisfactory tq the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: a. Additional Insureds. City of Chula Vista, its officers, .officials, employees, agents, and volunteers are to be named as additional'. insured's with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of TAVA, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of TAVA, including providing materials, parts or equipment famished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to TAVA's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. b. Primary Insurance. TAVA's General Liability insurance coverage must be primazy insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self~insurance maintained by the City, its officers, officials, employees, or voliunteers is wholly sepazate from the insurance of TAVA and in no way relieves TAVA from its responsibility to provide insurance. c. Cancellation. The insurance policies required by this Agreement shall not be canceled by either pazty, except after thirty days' prior written notice to the City by certified mail, return receipt requested. The w¢rds "will endeavor" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents, or represi;ntatives" shall be deleted from all certificates. d. Active Negligence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured's in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Waiver of Subrogation. TAVA's insurer will provide a \TJaiver of Subrogation in favor of the City for each required policy ',providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: ~ a-s a. Retro Date. The "Retro Date" must be shown, and mustbe before the date of the Agreement or the beginning of the work required by the Agreement. b. Maintenance and Evidence. Insurance must be maintained and' evidence of insurance must be provided for at least five years after completion of the work required by the Agreement. c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of the Agreement, TAVA must purchase "extended reporting" coverage for a minimum of five years after completion of the work required by the Agreement. d. Copies. A copy of the claims reporting requirements must be submitted to the City for review. Acceptabilitv of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current AM. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers (LESLI) with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coveraee. TAVA shall furnish the City with original ce>ificates and amendatory endorsements effecting coverage required by this section of this Agreement. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any tithe, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. TAVA must include all subcontractors as insured's under its policies or furnish separate certificates and endorsements for each subcohttractor. All coverage for subcontractor is subject to all of the requirements included in these specifications. Subcontractor's obligation with respect to the regrired coverage under Section 3(i), as discussed above, may be reduced to a minimum of one million ($1,000,000) only upon the condition and TAVA's agreemept that TAVA shall name subcontractor as an additional insured and TAVA's ulmbrella or excess liability coverage also covers subcontractors for an additional four million ($4,000,000). 18-9 10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed to limit TAVA's obligations under this Agreement, including Indemnity. 18-10 RESOLUTION RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE THIRD AVENUE VILLAGE ASSOCIATION (TAVA) FOR THE MAINTENANCE OF STREETSCAPE IMPROVEMENTS, SIGNAGE, HARDSCAPE TREATMENTS AND OTHER LANDSCAPE IMPROVEMENTS INSTALLED AS PART pF THE THIRD AVENUE STREETSCAPE MASTER PLAN (TASMP) WHEREAS, the final design for the Third Avenue Streetscape Master Plan (TASMP) was approved by Council on March 22, 2011; and WHEREAS, TASMP improvements include, are not limited to, the installation of new and/or modification of Streetscape elements (consisting of, but not limited to, sidewalks, signs, lighting, planter beds, and landscaping, including trees) within the Village; and WHEREAS, the TASMP improvements will provide for TAVA and its merchants substantial benefits, TAVA agrees at its expense to maintain the improvements resulting from the TASMP; and WHEREAS, the City desires to assure that the TASMP improvements are maintained at no cost to the City and TAVA desires to undertake the maintenance of those improvements; and WHEREAS, TAVA is part of a Property-Based Business Improvement District (PBID), which provides for maintenance services of the district, created on June 5, 2001 and is a top priority of the City's revitalization effort in the urban core; and WHEREAS, the TAVA Board of Directors at a meeting held on December 7, 2011 and voted to support the Agreement for Maintenance Services, and WHEREAS, TAVA representatives played an active role in the drafting of the aforementioned Agreement; and WHEREAS, the term of the Agreement shall commence on the Effective Llate and shall expire on June 30`h 2016, unless otherwise terminated at an earlier date. Notwithstanding the foregoing, the parties may elect to extend the Agreement on a 10-year basis by mutual written agreement; and WHEREAS, the Public Works Operations staff will manage general oversight, as required by the Agreement; and WHEREAS, the Director of Development Services has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has deternAined that the 18-11 Resolution Page 2 proposed activity was adequately covered in a previously adopted EIR; and- WHEREAS, pursuant to the California Environmental Quality Act (CEQA) on April 26, 2007 the City, acting as Lead Agency, certified Final Environmental Impact Report-06-O1 ("FEIR-06-O1 ") for the Urban Core Specific Plan ("UCSP"); and WHEREAS, on January 25, 2011 the City, acting as Lead Agency, having found and determined that certain amendments to the UCSP, including the referenced Third Avenue Streetscape Master Plan ("TASMP"), would not result in significant unmitigated impacts and that only minor technical changes or additions to FEIR-06-O1 were necessary and that none of the conditions described in Section 15162 of the State CEQA Guidelines calling for thie preparation of subsequent document had occurred adopted an Addendum to FEIR-06-O1; and WHEREAS, approval of the subject maintenance agreement for the Third Avenue approved Streetscape, hardscape and landscaping treatment concepts requires no further CEQA actions or determinations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby approves the Agreement between the City of Chula Vista and the Third Avenue Village Association for the maintenance of improvement made as a result of the TASMP, a Gopy of which shall be kept on file in the office of the City Clerk, and authorizes the City Manager or his designee to execute such Agreement. The City Manager is further authorized to make such minor modifications to the Agreement as may be recommended by the City Attorney. Presented By: Approved as to form by: Gary Halbert, PE. AICP Assistant City Manager/ Director of Development Services Glen R. Googins City Attorney 18-12 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~ G~ '~ i%L Glen R. Googins City Attorney Dated: I Z _ $ ~~ ~ THIRD AVENUE VILLAGE STREETSCAPE MASTER PLAN AGREEMENT FOR MAINTENANCE SERVICES BETWEEN THE CITY OF CHULA VISTA, AND THE THIRD AVENUE VILLAGE ASSOCIATION 18-13 THIRD AVENUE VILLAGE STREETSCAPE MASTER PLAN AGREEMENT FOR MAINTENANCE SERVICES BETWEEN THE CITY OF CHULA VISTA AND THE THIRD AVENUE VILLAGE ASSOCIATION This Agreement ("Agreement") is entered into effective if 2 s ! , 2011 ("Effective Date") by and between the Third Avenue Village Association ("TAVA"), and the City of Chula Vista ("City") for the purpose of creating along-term maintenance agreement for streetscape improvements, signage, hardscape treatments and landscaping and irrigation systems,: and electrical systems installed as part of the Third Avenue streetscape Master Plan ("TASMP"). RECITALS WHEREAS, pursuant to City and Redevelopment Agency joint Resolution 2006-232 the Downtown Chula Vista PBID ("DTCV PBID") was created; and WHEREAS, DTCV PBID services the Third Avenue commercial corridor that encompasses E Street to the north, Landis Avenue to the west, Church Avenue to the East, and I street to the South; and WHEREAS, the DTCV PBID is administered by TAVA and, inter alia, provides for. enhanced maintenance services by TAVA within the DTCV PBID boundaries; and WHEREAS, the aforementioned enhanced maintenance services provided by TAVA, include, but are not limited to, the following: 1. Maintenance of street appurtenances such as trash and recycling receptacles, bike racks, benches, smoking receptacles and interpretive signs; and 2. Maintenance of landscape planters, including watering, trash and debris removal, plant trimming and dead heading to promote healthy growth and enhanced visual appearances; and 3. Maintenance of irrigation systems, including replacement of sprinkler heads,: valves and other imgation appurtenances; and 4. Maintenance of concrete flat work by cleaning, sweeping, and removal of urusightly materials from the sidewalks as needed; and 5. Graffiti removal; and 6. General maintenance services on a daily basis, including trash, debris, and landscape debris clean up of sidewalks and curb/gutters; and 7: Payment for three electric meters for the landscaping to provide water and eliectricity to perform the above referenced maintenance services. WHEREAS, Third Avenue Village ("Village") which runs the length of Third Avenue, starting at north end of intersection at E Street and ending at south end of intersection at I Street is within the DTCV PBID boundaries and receives the aforementioned enhanced maintenance services; and P1aSe 1 ~f 11 WHEREAS, the City is making improvements ("Improvements") to the Village as set forth in the Third Avenue Streetscape Master Plan ("TASMP"); and WHEREAS, TASMP improvements include, aze not limited to, the installation of new and/or modification of Streetscape elements (consisting of, but not limited to, sidewalks, signs, lighting, planter beds, and landscaping, including trees) within the Village. WHEREAS, TAVA and its merchants will benefit from the Improvements made pursuant to the TASMP by enhancing the overall Third Avenue image and marketability, which will bring potential customers into the Village; and J WHEREAS, the City and TAVA aze entering into this Agreement based on the understanding that TAVA is supportive of the TASMP and that TAVA will provide annual maintenance funding and services to the Improvements made by the City to enhance the Village; and WHEREAS, the purpose of this Agreement is to set forth the enhanced maintenance responsibilities of TAVA (which includes maintenance guidelines, standards, and funding) with respect to the Improvements NOW THEREFORE, for valuable consideration, the City and TAVA do hereby mutually agree as follows: All of the Recitals above aze incorporated into this Agreement by this reference. ARTICLE I. TAVA'S OBLIGATIONS A. GENERAL DESCRIPTION OF MAINTENANCE SERVICES. TAVA agrees, at its expense, to maintain the TASMP Improvements, as set forth more fully in Article I, Section B, at a level acceptable to the City and no less than the generally accepted maintenance standards and frequency that promotes a safe, enjoyable, and vibrant environment or Streetscape experience. The Improvements to be maintained under this agreement are located with the TASIWIP boundaries ("Maintenance Area"), that consists of the following area: Third Avenue within City right of way running the length of Third Avenue, starting at north end of intersection at E Street end ending at south end of intersection at H Street. A map of the Maintenance Area subject to this Agreement is attached as Exhibit A. The Improvements to be maintained under this Agreement include the following items: street appurtenances, irrigation and components, plantings, new signage and components, street trees (existing and new planting) and components, hazdscape components (pavers & concrete work) and pedestrian and tree lighting and other electrical components, and the other items specified in Article I, Section B of this Agreement. A schedule showing TAVA's maintenance duties is attached as Exhibit B. Pase 2 of 11 1$-15 It is understood that the maintenance, repair, and/or replacement of the TASMP improvements that are not the obligation of TAVA under this Agreement, are, unless otherwise agreed upon, the responsibility of the City. However, the City is not required or obligated in any mamner, including this Agreement, to perform maintenance, repair, or replacement of the TASMP improvements. For purposes of definition, the term "maintenance" or "maintain" shall mean maintenance, repair and replacement of items as specifically set forth in Article I, Section B of this Agreement, and repair and replacement at no cost to the City of any City-owned property that is damaged by the performance of TAVA's maintenance responsibilities. The City and TAVA both acknowledge that the TASMP improvements maybe implemented in phases. Accordingly, TAVA will only be required to maintain, as set forth herein, the TASMP improvements as they are completed by the City. The City shall provide 30 days written notice to TAVA of the start date that TAVA is to begin its maintenance of the Improvements. TAVA agrees to begin its maintenance activity by the start date stated in the City's notice. This Agreement does not otherwise relieve TAVA ofits required enhanced maintenance services pursuant to the DTCV PBID. B. MAINTENANCE RESPONSIBILITIES OF TAVA. TAVA, at its own expen$e, shall maintain, as set forth in the Maintenance Schedule attached as Exhibit B, the following: 1. Street Appurtenances. Street appurtenances will be maintained based upon manufacturers recommendations or general accepted practices. Examples of street appurtenances other than those in the following numerated list below would be trash and recycling receptacles, bike racks, newspaper racks, benches, smoking receptacles, interpretive signs and bus shelters. 2. Street Trees. Street trees (consisting of existing and newly planted trees within the maintenance area) will be maintained in general standard horticultural practices proper for each particular tree. Trees branching shall be kept lifted to a minimum height of eight (8) feet for safe pedestrian movement around the trees, and shrubs will be trimmed, irrigated and fertilized per general standard practices to insure a healthy appearance and to prevent interference with walkways and pedestrians. 3. Street Tree Grates. Street tree grates will be maintained per manufacturer guidelines and frequency to ensure that the street tree grates are properly maintained for condition and appearance and to prevent interference with walkways and pedestrians. 4. Pedestrian Lighting. As light bulbs are discovered or reported burnt out TAVA shall replace, as soon as practical. 5. Si a e. Signage shall be kept clean and maintained per manufacturer's recommendations. Internally lit signs shall be maintained in working condition. 6. Planting and Median Islands. Planting and median islands shall be kept weed free. Trash and debris shall be removed as needed. Plantings and lawn azeas shall be maintained and fertilized as needed to promote healthy growth. Lawn edging and clipping should be done on a regular basis to insure a clean and neat appearance. 7. Accent Surface and Up Li¢htin¢. Accent lighting fixtures shall be kept in working order; adjustments to lighting shall be performed as needed. As bulbs bum out, they shall be replaced as soon as practical. P~$e ~ ~f 11 8. h-ri¢ation Systems and Pump Station. The irrigation system, which includes controllers, sprinkler heads, valves and other irrigation appurtenances shall be maintained per manufacturer's guidelines, local conditions and spray heads adjusted to minimaize overspray into adjacent public rights of way. Damaged irrigation controllers, communication cards and antennas, enclosures, pumps, valves, backflows, irrigation lateral and main line and sprinkler heads will be repaired or replaced, including all wiring and other irrigation related electrical equipment. TAVA shall maintain annual online Rainmaster IC ser~iice contracts for central control capability. 9. Street Tree Decorative LipJttinQ. Street Tree Decorative lighting shall be installed, modified and_maintained per manufacturer's guidelines. 10. Pavers. Pavers will be cleaned per manufacturer's guidelines and frequency hand retreated or resealed per manufacturer's recommendation to protect the paver surface. 11. Concrete Flatwork. TAVA shall maintain the appeazance of concrete flatwor~c by cleaning, sweeping and removal of unsightly materials on the new sidewalks as needed. 12. Cleaning and upkeep. Shall be on a regular routine basis and demonstrate consistency. Tree litter, shrub and ground cover clippings, grass cuttings, trash & debris will be disposed of off site by TAVA. 13. Power washing. Power washing of sidewalks 4 times per year. 14. Electricity and water. TAVA shall be responsible for the costs of and be required to provide water and electricity to perform the maintenance services of this Agreement, kncluding watering of vegetation. TAVA agrees to have the bill for water and electricity placed in its name and shall take all necessary actions to do so upon request by the City. 15. Graffiti. Graffiti shall be removed as required within a 72 hour time period after being reported. 16. Permits. Obtain the necessary permits for work within the Village area. 17. Reporting of Hazardous Conditions. Any condition or hazardous situation to the general welfare of the public within the public right of way shall be remedied or blocked off with 48 hours of discovering or reporting of the condition. An example of a hazardoi'as condition would be where a tree grate has been displaced from its safe and proper settimg, in such a way that a pedestrian may trip. Another example would be broken irrigation systems that would flood water if the system were activated. C. STANDARD OF CARE. TAVA expressly warrants that the work to be performed pursuant to this Agreement shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. No Waiver of Standard of Care. Where approval by City is required, it is understood to be conceptual approval only and does not relieve the TAVA of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, arrors, omissions, noncompliance with industry standazds, or the willful misconduct of the TAVA or its subcontractors. D. COMPLIANCE WITH LAWS OR REGULATIONS. TAVA agrees it shall comply with all local, state, and federal laws or regulations in the performance of this Agreement. Should a federal or state law pre-empt a local law, or regulation, TAVA must comply with the federal or state law and implementing regulations. No provision of this Agreement requires TAVA observe or enforce Page 4 of I1 18-17 compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with arny provision of this Agreement violates or would require the TAVA to violate any law or regulation, then TAVA agrees to notify City immediately in writing. Should this occur, the City and TAVA ,agree that they will make appropriate arrangements to proceed with or, if necessary, amend or'terminate this Agreement, or portions of it, expeditiously. TAVA agrees to take appropriate measures necessary to ensure that participants utilized by TAVA to complete its obligations under this Agreement, such as subcontractors, comply with applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting Project implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of TAVA under this Agreement, TAVA shall ensure that the subcontractor carries out the TAVA's responsibilities as set forth in this Agreement. The use of participants by TAVA to fulfill the terms of the Agreement, does not in any form relieve TAVA of its obligations under this Agreement. E. TAVA INSURANCE REQUIREMENTS. TAVA agrees that it shall acquire and maintain insurance as set forth in Exhibit C by the effective date of this Agreement or as otherwise required by the City. The City may, by written notice, change the insurance requirements in its sole and reasonable discretion and TAVA agrees to acquire and maintain such insurance as requested by the City. F. TAVA FUNDING. The TAVA is entering into this Agreement based on an understanding that the City will continue to contribute fiscally to the annual special assessment obligations derived from the Property Based Improvement District (PBID) established on July 2001. Should the City cease to contribute fiscally (at the level of contribution as of the date of this agreement or any subsequent increases approved by the Board of Directors) or the PBID be dissolved by the majority of the property owners, as prescribed under the Property and Business hnprovement District Law of 1994, TAVA shall have the right to terminate this Agreement. Annually, TAVA shall review the maintenance operations of Third Avenue to determine efficiencies, effectiveness, contracts and other aspects of the maintenance to allocate the appropriate funding for such services to be rendered under this agreement. ARTICLE II CITY OBLIGATIONS A. AGREEMENT REVIEW. Both parties agree to meet and confer from time to time to identify changes in site conditions, problems with the maintenance services and/or the need to modify the Agreement to address same. Minor changes to the Agreement maybe made at any time in writing upon mutual agreement of all parties. In addition, each of the parties may call for a meeting to discuss concerns, support, and ideas on how to make the maintenance services more successful and efficient in subsequent years. Or if the City has the appropriated funding and staffing to provide certain maintenance services previously performed by City and will take over the responsibilities of such and release TAVA from this obligation. B. TASMP. P~$e ~ Qf 11 1. This Agreement contemplates that the TASMP will be implemented, including construction in phases, by the City. However, the TASMP is contingent upon several factors including, but not limited to, available funding and funding limitations. Accordingly, should the City elect not to implement the TASMP, either in its entirety or in part, for any reason, the City may terminate this Agreement and such termination shall constitute "Termination for Convenience" as set forth in section B of Article N of this Agreement. 2. In addition, TAVA'S participation in this Agreement is also premised the City's itmplementation, including construction in phases, of the TASMP. Accordingly, should the City elect not to complete the TASMP, then TAVA shall solely be required to perform the maintenance services under the terms and conditions of the Agreement for TASMP Improvements that have been completed by the City. C. COOPERATION-MAINTENANCE SERVICES. The City will perform the following to assist TAVA in performing TAVA's Maintenance Service obligations under this Agreement: 1. The City will maintain a street sweeping contract, to the extent funding is available, for weekly service for Third Avenue and associated streets within the Village, which includes the Maintenance Area set forth in Exhibit A. 2. The City will turn over the existing irrigation controllers and operations for Third Avenue to TAVA staff. 3, The City shall report any repairs or new construction to TAVA staff prior to proceeding to coordinate information, schedule and notification to business within the Village. ARTICLE III. INDEMNIFICATION A. Mutual Indemnification. The parties agree to mutual indemnification as set forth in this Article. 1. TAVA shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of TAVA, its officials, officers, employees, agents, consultants, and contractors, arising out of or in connection with the performance of TAVA's maintenance responsibilities in the "M~intenance Area" or this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees or claims for injury or damages are caused by or the result from the negligent or intentional acts or omissions of TAVA, its officials, officers, employees, agents, consultants, and/or contractors. The aforementioned proportional ',liability shall be determined by agreement of the parties, by arbitration (if arbitration has been agreed upon by the parties), or by a court of competent jurisdiction. 2. The City shall defend, indemnify, protect and hold harmless TAVA, its officers, agents and employees, from and against any and all claims, demands, causes of action; costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of the City, its officials, officers, employees, agents, consultants, and Paee 6 of l1 1$-19 contractors, arising out of or in connection with the performance of the City°s maintenance responsibilities in the "Maintenance Area" or this Agreement but only in pr©portion to and to the extent such liability, loss, expense, attorneys' fees or claims for injury or damages are caused by or the result from the negligent or intentional acts or omissions of the City, its officials, officers, employees, agents, consultants, and/or contractors. The aforementioned proportional liability shall be determined by agreement of the parties, by arbitration (if arbitration has been agreed upon by the parties), or by a court of competent jurisdiction. B. Cost of Defense and Award. Upon receipt of an action or claim against the City or TAVA or both arising under either Party's acts or omissions as a result of this Agreement, TAVA and/or the City shall tender the action or claim to TAVA's insurance carrier for the defense against such claim. Should the tender for defense be denied by the insurance carrier, each party shall then bear their own defense costs (including reasonable attorney's fees), subject to reimbursement based in proportion to and to the extent of the parties respective liability, as provided for in sections A.1 and A.2 of this Article, at the conclusion of the matter. If the City or TAVA beaz their own defense costs as set forth above, neither the City nor TAVA waive any rights or remedies they may have against the insurance carrier to require them to pay all defense costs, including attorney's fees. The Parties shall also pay and satisfy any judgment, award or decree that maybe rendered against them or their directors, officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections A.1 and A.2. The aforementioned proportional liability shall be determined by agreement of the parties, by arbitration (if arbitration has been agreed upon by the parties), or by a court of competent jurisdiction. C. Additional Terms. The parties also agree to the following: 1. Insurance Proceeds. Each Parry's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by them, their directors, officials, officers, employees, agents, and/or volunteers. 2. Declarations. Each Pariy's obligations under this Article shall not be limited by any prior or subsequent declazation by them. 3. Enforcement Costs. Each Party agrees to pay any and all costs incurred by the other party enforcing the indemnity and defense provisions set forth in this Article if the other party is successful in enforcing such indemnity and defense provisions. 4. Survival. Each Parry's obligations under this Article shall survive the termination of this Agreement. ARTICLE PJ. TERMINATION OF AGREEMENT A. TERMINATION FOR CAUSE. If, through any cause, TAVA shall fail to fulfill in a timely and proper manner TAVA'S obligations under this Agreement, or if TAVA shill violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to TAVA of such terminatian and specifying the effective date thereof at least thirty (30) days before the effective date of such termination. TAVA hereby expressly waives any and all claims for damages or compensation arising under this Agreement. Page 7 of 11 18-20 B. TERMINATION OF AGREEMENT FOR CONVENIENCE OF CITI'. City may terminate this Agreement at any time and for any reason, by giving specific written notice to TAVA of such termination and specifying the effective date thereof, at least sixty (60) days before the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement. ARTICLE V. MISCELLANEOUS PROVISIONS A. COMMUNICATIONS AND COORDINATION REPRESENTATIVES. To provide for consistent and effective communication, both parties will appoint a principal and isecondary representative to serve as its central point of contact on matters relating to this Agreement and/or the level of maintenance services in question. The principal representatives for this Agreement aze listed below as follows: For TAVA: Executive Director (619)422-1982 TAVA Boazd President 353 Third Avenue Chula Vista, CA 91910 For the City: Matt Little, Assistant Director Public Works (619)397-6066 276 Fourth Avenue Chula Vista, CA 9190 B. TERM. The term of the Agreement shall commence on the Effective Date and shall expire on June 30`h 2016, unless otherwise terminated at an earlier date. Notwithstanding the foregoing, the parties may elect to extend the Agreement for an additional 10-years by mutual written agreement if the PBID is extended beyond 2016. C. EFFECTIVE DATE. The terms and conditions of this Agreement shall be effective as of the date this Agreement is signed by all parties on the Signature Page. D. ASSIGNABILITY. The services of TAVA are personal to the City, and TAVA shall-not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. 1. Limited Consent. City hereby provides limited consent that TAVA may assign the performance of the aforementioned "Maintenance Services" to sub-contractors, subject to City approval. F. INDEPENDENT CONTRACTOR. City is interested only in the results obtained and TAVA shall perform as an independent contractor with sole control of the manner and means of Page 8 of 11 18-21 performing the services required under this Agreement. City maintains the right only to reject or accept TAVA's Maintenance Services, including their quality. TAVA and any of the TAVA's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and TAVA shall be solely responsible for the payment of same and shall hold the City harmless with regard to them. 1. Actions on Behalf of City. Except as City may specify in writing, TAVA shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. TAVA shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, TAVA agrees and shall require that its agents, employees, subcontractors agree that City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, City shall have no obligation or liability to any person or entity not a party to this Agreement. G. ADMINISTRATIVE CLAIMS REQUIREMENTS AND PROCEDURES. No suit or arbitration shall be brought arising out of this Agreement, against City unless a claim has first been presented in writing and filed with City and acted upon by City in accorcdance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by City in the implementation of same. Upon request by City, TAVA shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. H. ATTORNEY'S FEES. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. J. NOTICES. Notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. Notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the designated parties. Paee 9 of 11 1$-22 K. INTEGRATION. This Agreement, together with any other written document referred to or contemplated in it, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision of it may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. L. CAPACITY OF PARTIES. Each signatory and party to this Agreement warrants and represents to the other party that it has .legal authority and capacity and direction from its principal to enter into this Agreement, and that all necessary resolutions or other actions have been taken so as to enable it to enter into this Agreement. M. GOVERNING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance under it, shall be the City of Chula Vista. (NEXT PAGE IS SIGNATURE PAGE] Page 10 of 11 18-23 SIGNATURE PAGE TO THIRD AVENUE VILLAGE STREETSCAPE MASTER PLAN AGREEMENT FOR MAINTENANCE SERVICES BETWEEN THE CITY OF CHULA VISTA AND THE THIRD AVENUE VILLAGE ASSOCIATION IN WITNESS WHEREOF, City and TAVA have executed this Agreement indicating that they have read and understood same, and indicate their full and complete consent to its terms: For Third Aveau Village Association (TAVA: ",- , l.. ~~~. n __v AD.KM SPARKS, `-' President, Third Avenue Village Association Date: ~ ~' ~'" ~ ( / Date: ~ ~ ~ 7- aid it REGSNRTH, Secretary, Third Avenue Village Association For the City of Chula Vista: JIM SANDOVAL, City Manager, City of Chula Vista Date: Date: GARY HALBERT, Deputy City Manager, Director of Development Services Approved as to form: GLEN R. GOOGINS, CITY ATTORNEY P~$e ll4of 11