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THIRD AVENUE VILLAGE AGREEMENT AND ENCROACHMENT PERivIIT
FOR MAINTENANCE SERVICES BETWEEN THE CITY OF CHULA VISTA AND THE THIRD AVENUE VILLAGE ASSOCIAT[ ON
This Aereement (" Aereement") is entered into effective Su- nl- ( , 2016 (" Effective Date") by and between the ThirdAvenue Villaee Association (" TAVA"), a private, non- profit corporation, and the City of Chula Vista (" City"), a California municipal chartered corporation. This Aereement shall also constitute an Encroachment Permit issued to TAVA by the City, as of the Effective Date, for all work to be performed by TAVA pursuant to this A reement. This Agreement and Encroachment Permit are made and issued pursuant to the followin facts:
RECITALS
WHEREAS, on June 17, 1980, the City established the Towne Centre # 1 Street Lightine and Landscape Maintenance District (` L& LMD"), via Council Resolution 10139, to maintain the landscapeand liehting beautification project alon Third Avenue; and WHEREAS, on July 24, 2001, the Ciry establishedthe Downtown Chula Vista Property-Based Business Improvement District (" DTCV PB[ D"), via Council Resolution 2001- 232, which took over the L& LMD responsibilities and expanded economic development activities; and WHEREAS, the DTCV PB[ D is administered by TAVA and, inter alia, provides for enhanced maintenanceservices by TAVA within the DTCV PBID boundaries; and WHEREAS, the DTCV PBID services the Third Avenue commercial corridor that encompasses E Street to the noRh, Landis Avenue to the west, Church Avenue to the East, and [ Street ro the south Third Avenue"); and
WHEREAS, the area commonly kno vn as Third Avenue Villaee (" Village") which runs the leneth of Chird Avenue, startine at the north end of the intersection at E Street and endin at the south end of the intersection at [ Street is within the DTCV PBID boundaries; and WHEREAS, on September17, 2002, the City appropriatedfunding to construct the Downtown Monument Sign (" Arch sign"), via Resolution 2002- 378, and the Downtown Business Association predecessor to TAVA) a reed to cover the future electrical power, monthly maintenance and routine repair costs for the Arch sien; and
WHEREAS, on July l8, 2006, the DTCV PBID was renewed for a period of 10 years pursuant ro City Resolution 2006-222/Redevelopment A ency Resolution 2006- 1949; and WHEREAS, TAVA is in the process of renewine the DTCV PB[D for a new 10-year term ending December 31, 2026; and
WHEEZEAS, the proposed Manaeement District Plan, includine the Engineer' s Report, submitted by TAVA in conjunction with the renewal of the DTCV PBID ( the " Rene val Plad'), identify certain Environmental Enhancements to be provided by the DTCV PBID, 2enerally includin:
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sidewalk sweeping, sidewalk pressure washine, gaffiti removaL landscapine maintenance, imoation, sidewalk maintenance, beautification, tree li hting, and other activities as set forth in the Renewal Plan; and
WHEREAS, TAVA members and property owners benefit from the previously installed and planned future enhancements along Third Avenue (" Enhancements") by improvine the overall Third Avenue imaee and marketabiliry, drawing potential customers into the Villaoe; and WHEREAS, the Enhancements include, but are not limited to, the L& LMD, the Arch sien, enhancements being made pursuant to the Third Avenue Streetscape Master Plan (` TASMP"), and the Environmental Enhancements contained in the Renewal Plan; and WHEREAS, the City and TAVA are enterine into this Agreement basedon the understandingthat TAVA is suppoRive of the Enhancements, will perform annual maintenance of, and services to, the Enhancements, and will provide funding for the sameby includine them in the RenewalPlan, and the annual PBID reports and budeet documents prepared in accordance with Califomia Streets and Highways Code Sections 36600, et seq. (" PB[ D Law"); and WHEREAS, the Ciry and TAVA acknowled e that this Agreement is dependent upon renewal of the DTCV PBID, that the TAVA Responsibilities, as described in Article I of this A reement, are encompassedwithin the activities to be provided by the DTCV PBID pursuant to the Renewal Plan, and that the Ciry will continue to provide the basic levels of service within the DTCV PBID boundaries as those provided citywide.
NOW, THEREFORE, for valuable consideration, the City and TAVA do hereby mutually a ee as Follows:
All of the Recitals above are incorporatedinro this Agreement by this reference.
ARTICLE L TAVA' S OBLIGATIONS
A. GENERAL DESCRIPTION OF bIAINTENANCE SERVICES.
The Enhancements to be maintained under this a reement are typically located within the DTCV PB[ D and TASMP boundaries. The " Maintenance Area" consists of Third Avenue, startine at north end of intersection at E Street and ending at south end of intersection at H Street. A map of the Maintenance Area subject to this Agreement is attached as Exhibit A.
TAVA a rees, at its expense usin PB[ D funds, which TAVA will allocate in sufficient amounts to allow TAVA to perform its responsibilities under this agreement, to maintain the Enhancements, as set forth more fully in Article [, Section B, at a level as determined by TAVA no less than the generally accepted preventative maintenance standards and frequency that promotes a safe, enjoyable, and vibrant environment or streetscape experience (" TAVA' s Maintenance Responsibilities"). TAVA further aerees that TAVA' s Maintenance Responsibilities are encompassedwithin the activities contemplated to be provided by the District in the Renewal Plan and will be contained in the PB[D reports and bud ets which TAVA will file with the City Clerk annually, pursuant to the PBID Law.
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The City agrees, at its expense, to maintain facilities asset forth more fully in Article II, Section C, at a basic level of service provided citywide.
t is understood that the maintenance, repair, andlor replacement of the Enhancements that are not the oblieation of TAVA under this Aereement, are; unlessotherwise agreedupon, the responsibiliry of the Ciry. However, the Ciry is not required or obligated in any manner, includine this Agreement, to perform maintenance, repair; or replacement of the Enhancements. For items listed as " Street Appurtenances" in Article I, Section B. l, elements dama ed beyond repair by unknown third parties, as determined by the City, will be removed by the Ciry and not replaced. TAVA can elect to fund replacement of the " Street Appurtenances" items at their discretion.
For purposes of definition, the term " maintenance" or " maintaid' shall mean typical routine maintenanceactivities, including but not limited to, cleaning, paintin„ trimming, pruning, waterino, repairing and the replacement of system components of items identified in Article [, Section B of this A reement. " Replacement of system components" applies to the Imgation and Li htin Systems.
Water utiliry costs from existing and future meters servicine the landscapin alone Third Avenue behveenE and H Street, as shown on Exhibit B, shall be a TAVA responsibility.
Electricity cost from existin and future metersservicine the electrical needsalong Third Avenue beriveenE and H Street, asshown on Exhibit B, will be proportioned bet veen the City andTAVA.
Meters that serve only the auxiliary power pedestals will be the responsibility of the Ciry. A separateagreement will be required to provide payment and allow use of the auxiliary power pedestals. The remaining meters serve the low voltaee transformer for tree (twinkle type) liahts, tree accent (up type) liehts, irrieation systems, special signage and pedestrian liohts. These meters will be in the Ciry' s nameand bills will be divided betweenthe Ciry and TAVA. The City will calculate the energy usage of the pedestrian liehting only, which will be the City share of the monthly bill, and invoice TAVA for the remainine amount since all other electrical components on the meter are TAVA responsibilities. The calculation for the pedestrian lighting will be:
number of liehts x wattage of lights s number of hours on) / 1000 = kilowatt hours kilowatt hours s the rate = costof pedestrianli ht energyusage Any Ciry property and/or Enhancementthat is damagedby TAVA staff or their contractorsdurins the courseof fulfillin2 TAVA' s maintenanceresponsibilitiesshall be repairedor replacedby TAVA. Repair and replacement proposals will be subject to approval of the City to ensure public safety.
The City and TAVA both acknowledee that future Enhancements may be implemented in phases.
Accordinely, TAVA will be required to maintain, as set forth herein, the future Enhancementsafter any applicable plant establishmendwarrantee period has expired and they are accepted by the Ciry.
The City shall provide 30 days written notice to TAVA of the start date that TAVA is to beoin its maintenance of any future Enhancements. TAVA agrees to begin its maintenance activity by the start date stated in the City' s notice. This Agreement does not othenvise relieve TAVA of its required enhanced maintenance services pursuant to the DTCV PBID.
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B. LaINTENANCE RESPONSIB[ L[ TIES OF TAVA. TAVA shall be responsible ro perform the followin and, will annually allocate and bud et appropriate PBID funds to do so:
L Street Appurtenances: Street appurtenances will be maintained based upon manufacturers' recommendations or general accepted practices. Examples of sveet appurtenances are:
benches; bus shelters; trash, recycling and smoking receptacles (excluding " Bi Belly" types); bicycle racks; kiosks; directional/wa nding, signa e; Third Avenue Villaee themed signa ge and banners; interpretive signs; decorative aR elements; outdoor decorative clock, at 3` Ave. & F St.) holiday decorations. Si nageshall be kept clean and intemally lit sions shall be maintained in workin condition.
2. Landscape Maintenance: All public landscaped areas, medians, planters and tree wells will be maintained including trash and debris removal, trimmin, dead headine, root prunin, watering, fertilizin and treating for diseaseto promote healthy growth and enhancedvisual appearances. Replacement of all plantin s, except street and palm trees, that die or are damaged by unknown third parties will be funded for and at the discretion of TAVA. Street trees (consistin of existing and newly planted trees within the maintenance area) will be maintained using general standard horticultural practices proper for each particular tree.
Tree branches shall be kept lifted to a minimum height of ei ht ( 8) feet for safe pedestrian movement around the trees, and shrubs will be trimmed, imeated and fertilized per Qeneral standard practices to insure a healthy appearanceand to prevent interference with walkways and pedestrians. The median palm trees are excluded and will be maintained by the City.
Streettree gates will be maintainedper manufacturer2uidelines and frequencyto ensure that the street tree grates are properly maintained for condition and appearance and to prevent interference with walkways and pedestrians.
3. Irrieation Svstems: Operate, repair and replace, as needed, all imeation system components includine water and electrical utility costs. The system shall be maintained per manufacturer' s uidelines and spray heads adjusted to minimize overspray into adjacent public rights of way. Dama ed irrigation controllers, communication cards and antennas, enclosures, pumps, valves, backflows, irrieation lateral and main line and sprinkler heads will be repaired or replaced, including all wirine and other imeation related electrical equipment, as soon as practical to avoid plant loss. TAVA shallVmaintain annual online Rainmaster IC service convacts for cenval control capability. IrriQation main line failures under streetsor sidewalks are excluded and will be repaired by the Ciry.
4. Li htinQ Svstems: Operate, repair and replace, as needed, all decorative accent lightine systems and component and, associated calculated electrical energy cost as described in Article I, Section A. Accent lighting includes, but is not limited to, tree up-liehting, tree twinkle lights, themed signa e lightine. Accent lightine fi.rtures shall be maintained per manufacturer' s guidelines and kept in working ordec Adjustments to liehting shall be performed as needed. Burnt out bulbs shall be replaced as soon as practical. Since portions on the electrical system are shared with the pedestrian lighting system ( Ciry), only the system components immediately accessible (for example, the bulb/light housing, the electrical outlet for tree lights, the 6- 12 inches of conduit riser below round) are to be maintained by TAVA. The remainder of the electrical system will be maintained by the City.
5. Pedestrian Areas: Clean and perform minor repairs to all pedestrian areas ( concrete and brick pavers), as needed, including the removal of unsishtly materials from the sidewalks, Client Files/ 4957/ 1/ K/ 50405920. DOCX} Page 4 of 12
sweepine, and power washing. Brick paverswill be cleanedper manufacturer's euidelines and frequency and retrea[ed or resealed per manufacturer' s recommendation to protect the paver surface. Pedestrian crosswalks are excluded and will be maintained by the City.
6. Electricitv and Vatec TAVA shall be responsible for the costs of and be required to provide water and electriciry to perform the maintenance services of this Aereement, including watering of vegetation. TAVA a eesto have the bill for water placed in its name and shall take all necessaryactions to do so upon request by the Ciry. Electrical power meters will be in the City' s nameand the City will invoice TAVA the calculatedpower usage, asdescribed above in Article I, Section A.
7. Graffiti. Graffiti ( within 12 feet of the eround, excludine murals on private propeRy) will be removed from all featureswithin the PBID Boundary within 72 hours of being reported.
Graffiti above12feet will betheresponsibiliry of the propertyowner, Public or Private.
8. General Maintenance: Perform eeneral miscellaneous maintenance services in the PBID Boundary area (including alleys) on a daily basis. General maintenance can include routine deanin, trash and debris removal ( excludine hazardous waste), and minor repairs to ensure a clean and aesthetically pleasing environment throu hout the Viliage. These activities will be at the discretion of TAVA and as defined in further detail in the PB[ D Renewal I Management Plan,
9. Permits. This Agreement will serve as the Encroachment Permit for TAVA to perform the activities describedherein. For activities requiring traffic control on theciry streets, a traffic control plan shall be submitted to the Traffic Engineerine Section for review and approval at no cost to TAVA. My other non-city permits that may be needed to perform the work described herein will be obtained by TAVA. Special Event permits will still be required. l0. ReportinQ of Hazardous Conditions. Any condition or hazardous situation to the general welfare of the public within the public rieht of way observed by TAVA personnel or contractors in the normal conduct of their duties under this Agreement shall be remedied, reported to the City when not within the scope of this a reement or blocked off within 43 hours of discoverin or reportina of the condition. An example of a hazardous condition would be where a tree orate has been displaced from its safe and proper settin, 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 Failure of TAVA staff or contractors to observeor appreciatehazardousconditions or situations shall not give rise to any liability by TAVA for a failure to report such conditions that are outside the scope of this Agreement ro the Ciry.
C. STANDARD OF CARE. TAVA expressly warrants that the work to be performed pursuant to this A reement 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 6Vaiver of Standard oj Care. Where approval by City is required, it is understood ro 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, errors, omissions, noncompliancewith industry standards, or the willful misconduct of the TAVA or its subcontractors.
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D. C0 1PLIA\' CE VITH LA VS OR REGULAT[ ONS. TAVA aerees it shall compl, v 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 rewlation, TAVA shall comply with the federal or state law and implementine reb lations. No provision of this Agreement requires TAVA to obsen e or enforce compliance with any provision, perform any other act, or do any other thine in contravention of federal, state, temtorial, or local law, rewlation, or ordinance. If compliance with any provision of this Agreement violates or would require the TAVA to violate any law or rewlation, then TAVA aereesto notify City immediately in writing. Should this occur, the City and TAVA agree that they will make appropriate arraneementsto proceed with or, if necessary, amend or terminate this Aereement, or portions of it, expeditiously.
TAVA a reesto take appropriatemeasuresnecessaryto ensurethat participants utilized by TAVA to complete its oblieations under this Agreement, such as subcontractors, comply with applicable laws, rewlations, ordinances, and policies, whether federal, state, or local, affecting Project implementatioa In addition, if a subcontractoris expectedto fulfill any responsibilitiesof TAVA under this Aereement, TAVA shall ensure that the subcontractor carries out the TAVA' s responsibilities asset forth in this Agreement. The useof participants by TAVA to fulfill the terms of the Agreement doesnot in any form relieve TAVA of its obligations under this Agreement.
E. TAVA [ NSURr1NCE REQU[ REY[ ENTS. TAVA a2rees that it shall acquire and maintain insurance as set forth in Exhibit C by the effective date of this Aereement or as otherwise required by the City. The City may, by written notice, chanee the insurance requirements in its sole and reasonable discretion and TAVA a ees to acquire and maintain such insurance as requestedby the Ciry.
F. TAVA F[ JNDING. The TAVA is enterine into this Agreement based on an understandine thatthe Ciry will continueto contribute fiscally to the annualspecialassessmentobli ationsderned from the Property Based Improvement District ( PBID) establishedon July 2001 and renewed in July 2006. Should the City ceaseto 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 prescribedunder the Property and Business Improvement District Law of 1994, TAVA shall have the rieht to terminate this A; reement.
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 PBID funding for suchservicesto berenderedunderthis Agreement.
ARTICLE [ L CITY OBLIGATIONS
A. THIRD AVENUE STREETSCAPE DIASTER PLAN ( TASNIP).
The TASMP will be constructed in phases. Accordingly, should the City elect not to complete the TASMP, then TAVA shall solely be required ro perform the maintenance services under the terms and conditions of the Aereement for Enhancementsthat have been completed by the City.
B. COOPERATION- DIAINTEN u\' CE SERVICES. The City will be responsible to operate, maintain and repair the following featuresto a basic level of service provided citywide:
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l. Streets (includine on street parking areas) from the face of curb to the face of curb (or theoretical face of curb in the plaza area)
2. Pavementmarkines and stripina
3. Bollards
4. Rewlar street siens
5. Traffic sienals
6. StreetandPedestrianLiehting including the calculated electrical power
7. Palm trees in the median
8. Storm water devices indudin but not limited to " filterras" ( excludine landscape type features)
9. Auxiliary electrical power system (useof the systemwill be a separatecost and require a separate aereement/ permit)
l0. The Ciry will maintain a street sweepine contract, to the exrent fundine is available, for weekly service for Third Avenue and associated streets within the Villaee, which includes the Maintenance Area, set forth in Exhibit A
l l. The City shall report any repairs or new construction to TAVA staff prior to proceedingto coordinate information, schedule and notification to business within the Villaee
12. Replacement of dead/ dyine street trees
ARTICLE [[ I. NDEM IIFICAT[ ON
A. DIUTUAL L\' DEMNIFICATION. The parties aeree to mutual indemnification as set forth in this Artide.
l. TAVA shall defend, indemnify, protect and hold harmless the Ciry, its elected and appointedofficers, aaentsand employees, from and aeainst any and all claims, demands, causesof action, costs, expenses, liabiliry, loss, damage or injury, in law or equiry, to property or persons, including wrongful death, in any manner arisine out of or incident to any aileeed acts, omissions, negligence, or willful misconduct of TAVA, its officials, officers, employees, aeents, consultants, and contractors, arising out of or in connection with the performance of TAVA' s maintenance responsibilities in the " Maintenance Area," or this Aereement, but only in proportion to and to the extent such liabiliry, loss, expense, attorneys' fees or claims for injury or damages are caused by or the result from the neelieent or intentional acts or omissions of TAVA, its officials, officers, employees, aeents, consultants, and/or contractors. The aforementioned proportional liability shall be determinedby a reementof the parties, by arbitration (if arbitration hasbeenagreedupon by the parties), or by a court of competent jurisdiction.
2. The City shall defend, indemnify, protect and hold harmlessTAVA, its officers, agentsand employees, from and aQainst any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, ro property or persons, includine wrongful death, in any manner arisine out of or incident to any alleged acts, omissions, ne ligence, or willful misconduct of the City, its officials, officers, employees, agents, consultants, and contractors, arisin out of or in connection with the performance of the City' s maintenance responsibilities in the " Maintenance Area," or this Agreement, but only in proportion to and to the extent such liabiliry, loss, expense, attomeys' feesor claims for injury or damagesare caused by or the result from the negligent or intentional acts or omissions of the City, its officials, officers, employees, agents, consultants, and/or Client Files/ 49 7/ 1/ K/ SO405920. DOCX} Pa e 7 of l2
contractors. The aforementioned proportional liabiliry shall be determined by agreement of the parties, by arbitration (if arbitration hasbeen agreedupon by the parties), or by a court of competent jurisdiction.
B. COST OF DEFENSE AND A VARD. Upon receiptof an action or claim aeainstthe City or TAVA or both arisin 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 aQainst such claim. Should the tender for defensebe deniedby the insurancecarrier, eachparty shall then bear their own defense costs ( induding reasonable attomey' s fees), subject to reimbursement based in proportion to and to the extent of the paRies respective liability, as provided for in SectionsA. 1 and A.2 of this Artide, at the conclusion of the matter. If the Ciry or TAVA beaztheir own defensecostsasset foRhabove, neitherthe Ciry nor TAVA waive anyriehts or remedies they may have against the insurance camer to require them to pay all defensecosts, including attomey' s fees. The Parties shall also pay and satisfy anyjudement, award or decree that may be rendered a ainst 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 liabiliry shall be determined by a reement of the parties, by arbitration ( if arbitration has been aereedupon by the parties), or by a couR of competent jurisdiction.
C. ADDITIONAL TERititS. The parties also agree to the following:
L Insurance Proceeds. Each Party' s obli ation to indemnify shall not be restricted to insurance proceeds, if any, received by them, their directors, officials, officers, employees, aaents, and/ or volunteers.
2. Declarations. Each Party's oblioations under this Article shall not be limired by any prior or subsequentdeclaration by them.
3. Enforcement Costs. Each Party agreesro pay any and all cosis incurred by the other party enforcin the indemnity and defense provisions set forth in this Article if the other party is successful in enforcin such indemnity and defense provisions.
4. SurvivaL Each PaRy's oblieations under this ARicle shall survive the termination of this A reement.
ARTICLE N. TERMINATION OF AGREEMENT
A. TERDIINATION FOR CAUSE. If, through any cause, TAVA shall fail to fulfill in a timely and proper mannerTAVA' s obligations under this A reement, or if TAVA shall violate any of the covenants, aereements or stipulations of this Agreement, Ciry shall have the right to terminatethis Aereement by givin written notice to TAVA of such termination; which includesthe specific alleged causeor causes, and specifying the effective date thereof at least thirty ( 30) days before the effective date of such termination (`' Termination Notice"). TAVA shall have the ability to cure such causeor causesor, if a cure is not possible within thirty ( 30) days, to begin such cure and dilieendy prosecutesuch cure to completion which in any event shall not exceed ninery (90) days after the receipt of such Termination Notice. TAVA hereby expressly waives any and all claims for damagesor compensation as a result of termination of this Aa eement.
B. TERNt[ NATION OF AGREEb1ENT FOR CONVENIENCE OF CITY. Ciry may terminatethis Agreementat anytime and for anyreason, by givin specific written notice to TAVA Client Files/ 49 7/ 1/ K/ 5040 920. DOCX} Page 8 of l2
of such termination and specifyine the effective date thereof, at least sixty ( 60) days before the effectivedateof suchtermination. TAVA herebyexpresslywaivesany and all claimsfor damaQes or compensation as a result of termination of this Agreement.
ARTICLE V. MISCELLANEOUS PROVISIONS
A. AGREEDIENT REVIE V. Both parties a ree to meet and confer from time to time to identify chan es in site conditions, problems vith the maintenance sen ices and/or the eed to modify the Agreement to addresssame. Minor chan es to the Aoreement may be made at any time in writin upon mutual a reement of all parties. [ n addition, each of the parties may call for a meetine to discuss concems, support, and ideas on how to make the maintenance services more I successfulandefficientinsubsequentyears,
B. CO I 4[ JNICATIONS AND COORDINAT[ ON REPRESENTAT[ VES. To provide for consistentand effective communication, both parties will appoint a principal and secondary representative to serve as its central point of contact on matters relatin to this Agreement andlor the level of maintenance services in question. The principal representatives for this Agreement are listed below as follows:
For TAVA:
Executive Director
619) 423- 1982
TAVA Board President
3 3 Third Avenue
Chula Vista, CA 91910
PorCity:
William Valle, Assistant Director of En ineerine
619) 409- 5976
276 FouRh Avenue
Chula Vista, CA 91910
C. TERDI. The term of the A eement shall commence on the Effective Date and shall expire on December 31, 2026, unless otherwise terminated at an earlier date. Notwithstandine the foregoing, the parties may elect to extend the Agreement by mutual written aereement for an additional period coincidine with a PBID extension of the parties.
D. EFFECTR' E 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.
E. ASSIGNAB[ L[ TY. The services of TAVA are personal to the City, and TAVA shall not assi n any interesi in this Agreement, and shall not transfer any interest in the same (whether by assignmentor notation), without prior written consent of Ciry.
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1. Limited Consent. Ciry hereby provides limited consent that TAVA may assign the performance of the aforementioned " Maintenance Sen ices° to sub- contractors, subject to City approval.
F. I\' DEPENDENT CONTRr1CTOR. Ciry is interested only in the results obtained and TAVA shall perform as an independent contractor with sole control of the manner and means of performin2 the servicesrequiredunder this Ao eement. City maintainsthe rieht only to reject or accept TAVA' s Maintenance Services, indudine their quality. TAVA and any of the TAVA' s aeents, employees or representatives are, for all purposes under this A reement, independent contractors and shall not be deemedro be employeesof City, and none of them shall be entided to any benefits to which Ciry employees are entitled including but not limited tq overtime, retirement benefits, worker's compensationbenefits, injury leave or other leave benefits. Therefore, Ciry will not withhold state or federal income tax, social security tax or any other payroll tax, and TAVA shall be solely responsiblefor the paymentof sameand shall hold the City harmlesswith reeardto them.
1. Actions on Behalf of Citv. Except as Ciry may specify in writins, TAVA shall have no authority, express or imp(ied, to act on behalf of City in any capacity whatsoever, as an aeent or othenvise. TAVA shall have no authority, express or implied, to bind City or its members, a ents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement.
2. No ObliQations to Third Parties. [ n connection with this A eement, TAVA a rees and shall require that its agents, employees, subcontractors a ee that City shall not be responsible for any obli ations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement.
Notwithstandin that Ciry may have concurred in or approved any solicitation, sub agreement, or third paRycontractat anytier, City shall haveno obligation or liability to any person or entity not a party to this Agreement.
G. . aDMINISTRATIVE CLAIbIS REQUIREbIENTS AND PROCEDURES. No suit or arbitration shall be brought arising out of this A reement, against Ciry unless a claim has first been presented in writine and filed with City and acted upon by City in accordance 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 referenceas 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.
L NOTICES. Notices, demands or requests provided for or permitted to be given pursuant to this Aereement must be in writing. Notices, demands and requeststo 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.
Client Files/ 49 7/ l/ K/ 50405920. DOCX} Page l0 of l2 J. INTEGRATION. This Agreement, togetherwith any other written document referred to or contemplatedin it, embodythe entire Agreementandunderstandingbetweenthe partiesrelating to the subject matter hereo£ Neither this A reement nor any provision of it may be amended, modified, waived or dischargedescept by an instrument in writine executedby the party aoainst which enforcement of such amendment, waiver or discharee is soueht.
K. CAPACITY OF P.aRTIES. Each sienatory and paRy to this Agreement warrants and representsto the other party that it has le al authoriry and capaciry and direction from its principal to enter into this Aoreement, and [hat all necessaryresolutions or other actions have been taken so as to enable it to enter into this A eement.
L. GOVERi\'[\' G LAWNENUE. This Aereement shall be overned by and construed i accordancewith the laws of the State of Califomia. Any action arising under or relatine to this A reementshall be broueht only in the federal or statecourts located in San Dieeo County, Stateof Califomia, and if applicable, the City of Chula Vista, or as close thereto aspossible. Venue for this A reement, and performance under it, shall be the Ciry of Chula Vista.
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SIGNATURE PAGE TO
THIRD AVENUE VILLAGE AGREEMENT AND ENCROACH IENT PERMIT FOR MAINTENANCE SERVICES BETWEEN THE C[ TY OF CHULA VISTA
AND THE THIRD AVENUE VILLAGE ASSOCIATION
I WTfNESS WHEREOF, City and TAVA have executed this Agreement indicatin that they have read and understood same, and indicate their full and complete consent to its terms:
For Third Avenue Vi! lage Association ( TAVA):
Date: o ( `
PA S,
Boar es dent, Third Avenue Village Association
Date: J l `
TROTiER,
Secretary, Third Avenue Village Association
For die Ciry of Chu(a sta:
Date:
M CAS[ LLAS SALAS,
Mayor, Ciry of Chula Vista
Approved as to form:
LEN R1G00 S,
Atto ey, ' ry of la ista
ATTEST:
o ,-,
DONNA R. NORR S, CMC
City Clerk
Client Files/ 4957/ I/ K/ 5040 920. DOCX} Page 12 of l2 i
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EaHIBIT C
A. INSURAl' CE. TAVA aerees to abide bv the follo in insurance requirements:
l. General. TAVA must procure and maintain, durine the period of perfortnance of this Agreement. and for n el e months after completion, policies of insurance from insurance companies to protect against claims for injuries to persons or damaeesto propert that may arise from or in connection 1ith the performanceof the ork under this Aareement and the results of that vork bv the TAVA. his agen[s, representatives emplo ees or subcontractors. and provide documentation of same prior to commencement of+ ork.
2. Minimum Scooe of Insurance. Coveraee must be at least as broad as:
a. CGL. lnsurance Sen ices Office Commercial General Liabilin coveraQe occurrence Form CG0001).
a. . 9uro. Insurance Sen ices Office Form \' umber CA 0001 coverine Automobile Liabilit, Code I ( any auto).
b. bi'C. \ Vorkers' Compensation insurance as required b the State of Califomia and Employers Liability Insurance.
c. E80. Professional Liabilit or Errors R Omissions Liabilitv insurance appropriate to the TAVA' s profession. Architects' and Engineers' coveraee is to be endorsed to include contracmal liabilitv.
3. Minimum Limits of Insurance. TAVA must maintain limits no less than those included in the table below:
i. General Liability: 1,000, 000 per occurrence for bodil injun_ personal Includine injury. (includine death). andpropem damaee. If operations, Commercial General Liabilit insurance vith a oeneral products and aggregate limit is used: either the general aegregate limit completed must apply separately to this Projecdlocation or the operations, as eeneral aegreeate limit must be rnice the required applicable) occurrence limit.
ii. Auromobile 1:000,000 per accident for bodih• injur. including death.
Liabilit•: and propem damaee.
iii. Workers' Statutor
Compensation SI, 000, 000 each accident
Employers SI, 000.000 disease-policy limit
Liabilitv: 1. 000. 000 disease- each em lo ee
i. Professional 1. 000. 000 each occurrence
Liabilit or
Errors &
Omissions
Liabilih:
If TAVA maintains hieher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained b TAVA.
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 Cit, either the insurer H ill reduce or eliminate such deductibles or self- insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or TAVA will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
Other Insurance Provisions. The genera] liability, automobile liability, and where appropriate, the tvorker' s compensation policies are to contain, or be endorsedto contain, the following provisions:
a. Addiiio aal Insui• eds. City of Chula Vista, iu officers, officials, employees, agents, and volunteers are Yo be named as additional insureds ith 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, induding pro iding materials. parts or equipment fumished in connec[ion with such work or operations. The general liability additional insured coverage must be pro ided in the form of an endorsement to TAVA' s insurance usine ISO CG 2010 ( 11/8) or its equivalent Specifically, the endorsement must not e clude Products/ Completed Operations coverage.
b. Primury b7surunce. TAVA' s General Liabiliq insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, a ents, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, or volunteers is holly separate from the insurance of ' I'AVA and in no way relieves TAVA from its responsibility to provide insurance.
c. Cuncellarion. The insurance policies required by this Agreement shall not be canceledby either party, except after thirty days' prior H-ritten notice to the Cit b certified mail. rewm receipt requested. The words " rill endeavor' and " but failure to mail such notice shall impose no obligation or liabilih of am kind upon the comaam, its a enu, or representati es" shallbedeletedfromalIcertificates.
d. .9ctrve :' egli ence. Coveraee shall not estend to any indemnit- co eraee for the active neslieence of the additional insureds in an case here an aereement to indemnif the additional insured ould be invalid under Subdi ision ( b) of Section 2782 of the Civil Code.
e. i an er of Subrogation. TAVA' s insurer N ill pro ide a VJaiver of Subrogation in fa or of the Cin• for each required polic pro iding coveraee for the term required b this Asreement.
6. Claims Fortns. If General Liabilih. Pollution and/ or Asbestos Pollution Liabilitv and/ or Erzors & Omissions co eraee are rritten on a claims- made fortn:
a. Rerro Date. The " Retro Date" must be shown. and must be before the date of the Aereement or the beainning ofthe t ork required b the Aereement. b. Alaintena ice u ad Evidence. Insurance must be maintained and e idence of insurance must be pro ided for at least fi e years after completion of the rork required by the Aereement.
c. Cancellation. If coveraee is canceled or non- rene ved, and not replaced i ith another claims- made polic} form with a " Retro Date ' prior to the effecti e date of the Aereement, TAVA must purchase "estended reporting' covera e for a minimum of five ears after completion of the ork required b the Agreement. d. Copres. A copy of the claims reportine requirements must be submitted to the Citv for revie t.
7. Acceptabilin• of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of Califomia ith a current A. M. Best` s rating of no lessthan A V. If insuranceis placed with a surplus lines insurer. insurer must be listed on the State of California List of Elieible Surplus Lines Insurers ( LESLI) with a current A. h9. Besrs ratins of no less than A .
Exception ma be made for the State Compensation Fund • hen not specifically rated.
8. Verification of Co era e. TAVA shall furnish the City with original certificates and amendatory endorsementseffecting coveragerequired by Section I.C. of this Aareement. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the requirements of this A reement.
AIl certificates and endorsements are to be received and approved by the Cit before vork commences. The City reserves the right to require; at any time, complete, certified copies of all required insurance policies, including endorsementse idencin the coveraeerequired by thesespecifications.
9. Subcontractors. TAVA must indude all subcontractors as insureds under its policies or furnish separate certificates and endorsements for each subcontractor All coverage for subcontractors is subject to all of the requirements included in these specifications.
10. Not a Limitation of Other Obli ations. Insurance provisions under this Article shall not be construed to limit TAVA' s obligations under this Agreement, including Indemnit.