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HomeMy WebLinkAbout08 - Newport Center Lighting & Landscape Maintenance Agreement�y NEWPORT REACH City Council Staff Report Agenda Item No. 8 January 28, 2014 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Stephen G. Badum, Assistant City Manager 949 - 644 -3002, sbadum .newportbeachca.gov PREPARED BY: Stephen G. Badum, Assistant City Manager APPROVED: I J TITLE: Newport Center Lighting & Landscape Maintenance Agreement ABSTRACT: The City and The Irvine Company are requesting a consolidated Lighting and Landscape Maintenance Agreement to replace Newport Center Palm Tree Replacements Letter Agreement dated February 5, 1985, the Newport Center Streetlight Agreement dated February 13, 1985, and other agreements between The Irvine Company and the City of Newport Beach. RECOMMENDATIONS: 1) Authorize the payment of $88,458.86 to The Irvine Company representing the City's share of costs for Newport Center utility costs in accordance with the Letter Agreement dated February 5, 1985, between The Irvine Company and the City of Newport Beach. 2) Approve the Newport Center Lighting and Landscape Agreement. 3) Approve Budget Amendment No. 14BA -029 appropriating $88,458.86 from the Water Enterprise fund balance reserves to Account No. 5500 -8250. FUNDING REQUIREMENTS: If approved, the reimbursement expenditure will be funded from Water Enterprise Fund surplus fund balance. Newport Center Lighting & Landscape Maintenance Agreement January 28, 2014 Page 2 DISCUSSION: On November 13, 2012, the City Council approved payment for the City's share of tree replacements that occurred between September 2006 and September 2011 in the amount of $123,000 in accordance with the 1985 Letter Agreement with The Irvine Company. Additionally, Council directed staff to explore formalizing the letter agreement and review other Newport Center agreements for potential consolidation. The existing agreements between the, City and The Irvine Company (TIC) are as follows: • In 1985, TIC initiated a project to refurbish various improvements throughout Newport Center including replanting various medians, entrance plantings, and street trees. As part of that project, the City and TIC entered into a letter agreement (see attachment A) to specify responsibilities. In general, the agreement allowed TIC to replace certain trees and plant new trees and plantings; specified maintenance and utility cost responsibilities for each party; and agreed that the cost of any future replacements of palm trees due to disease or injury would be shared equally. • On February 13, 1985, the City and TIC executed an agreement transferring the operation and maintenance of the Newport Center street lighting to TIC. This action was taken to allow TIC to install Metal Halide lighting fixtures which provide a white /blue light as opposed to the standard street lighting fixture which produces a yellow /orange light. Additionally, TIC wanted to provide white painted steel street light poles to complete their signature look. • TIC's development standards for Newport Center include the white painted traffic signals. As traffic signals were added over the development of Newport Center, starting in the 1970s, TIC paid for the initial installation and the City committed to future maintenance including providing painted replacements when necessary. Additionally, the City committed to the white painted equipment for any City initiated projects to preserve the signature look of Newport Center. Over the past year, City and TIC staff have been reviewing various responsibilities and associated costs of each agreement in an effort to normalize and balance the components of the agreements. Of particular concern to the City was the variable costs from year to year for the date palm tree replacements. The cost to replace one of these signature palms ranged from $20,000 to $25,000 and the number of trees replaced varied from zero to as high as four in one year. The list and table below shows the existing and proposed responsibilities and associated costs. In general, the various responsibilities have been bundled to provide consistent control for each party of the agreement. For example, the cost of water for landscaping was previously shared by TIC and the City. Since TIC is responsible for median and parkway maintenance, it is more appropriate for TIC to be responsible for water costs as they control the watering of those areas. Another example is the N Newport Center Lighting & Landscape Maintenance Agreement January 28, 2014 Page 3 streetlights in Newport Center. TIC currently maintains the streetlights, but the City is responsible for the electrical costs. Since the City maintains streetlights citywide, it is more appropriate for the City to maintain the lights in Newport Center as we are already responsible for the energy costs. The City would gain control over the lighting equipment which would allow us the ability to upgrade to LED lighting and reduce our energy use through a future retrofit project. Current Agreements City Responsibilities • 50% of costs to replace Date Palms at entrances 50% of water costs for landscape irrigation • 100% of electricity costs for streetlights • 100% of maintenance and trimming for the median and parkway trees TIC Responsibilities • 50% of costs to replace Date Palms at entrances • 50% of water costs for landscape irrigation • 100% of the cost to maintain the streetlights • 100% of the cost to maintain the median and parkway landscape Proposed Agreement City Responsibilities • 100% of the cost to maintain the streetlights • 100% of electricity costs for streetlights (no change) • 100% of maintenance and trimming for the median and parkway trees TIC Responsibilities • 100% of costs to replace Date Palms at entrances • 100% of water costs for landscape irrigation • 100% of the cost to maintain the median and parkway landscape (no change) 3 Newport Center Lighting & Landscape Maintenance Agreement January 28, 2014 Page 4 Annual Cost Summary Maintenance Activity Current City Cost Current TIC Cost Proposed City cost Proposed TIC cost Streetlights $0 $51,552 $51,552 $0 230 streetlights Water Utility $24,543 1 $24,543 1 $0 $49,086 Entry Palm Replacement $25,000 $25,000 $0 $50,000 One per year, avg. Total = $49,543 $51,552 The proposed changes allows the city and TIC to be in control of their associated responsibilities and encourages conservation of power and water utilities. Staff recommends the approval of a new agreement, Newport Center Lighting and Landscaping Agreement, which rescinds all previous agreements. To close out the previous agreements, staff is also recommending the one -time payment of $88,458.86 to TIC representing the City's past share of water utility costs per the 1985 agreement (approximately four years of back charges). The execution of the new agreement is generally cost neutral to the City and TIC. However, each party will have the opportunity to reduce costs in the future through power and water conservation efforts. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQK) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2 Newport Center Lighting & Landscape Maintenance Agreement January 28, 2014 Page 5 NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: n-G. Badum nt City Manager A. Letter Agreement dated February 5, 1985 B. Agreement for Modification & Maintenance of Street Lighting System, February 13, 1985 C. Lighting & Landscape Maintenance Agreement with The Irvine Company LLC, January 28, 2014 D. Budget Amendment 5 Attachment A THE IRVINE CAPAW 610 Newport Center Drive, P.O. Box I C _ Z1f99 ' Newport Beach, California 82668.8904 (714) 720-2000 February 5, 1985 Mr. Robert H, Burnham Office of the City Attorney P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Mr. Burnham: the purpose of this Letter Agreement is to confirm our understanding regarding the removal of existing trees, the planting of replacement trees,.and the maintenance'of trees and landscaping for certain streets in Newport Center. The City of Newport Beach (City) currently maintains: (1) landscaping in the median strip; and (2) trees located in the median strip and along the parkways located in Newport Center for the streets shown in red on Exhibit A attached hereto. The Irvine Company (TIC) currently maintains landscaping along the parkways in Newport Center for the streets shown in red on Exhibit A. The median strip in and parkways along those streets shown in red on Exhibit A shall be referred to herein as the Maintenance Area. TIC, as principle owner of property within Newport Center, is presently engaged in refurbishment of improvements within Newport Center and in conjunction with that project, desires to remove the existing trees in the Maintenance Area and replace them with Ficus Rubiginosa and several species of palm trees, and, further, to establish, future responslbllities between TIC and the City for main- tenance of the trees and landscaping in the Maintenance Area. In consideration of the following terms and conditions, TIC and the City agree that: TIC may remove the existing trees located in the Maintenance Area. 2. TIC shall plant various species of palm trees in the median strip and parkways along Newport Center Drive East and West and at such other lo- cations as are shown in red on Exhibit B hereto. Ficus Rubiginosa trees shall be planted in the median in and parkways along those streets in green on Exhibit B hereto. 3. TIC will purchase a one year warranty on all palm trees planted by it in Newport Center, and shall be solely responsible for replacement of any Palm trees that may require replacement during the one year warranty period. 0 Mr. Robert H. Burnham February 5, 1985 Page Two E Following the one year warranty period, City and TIC will share equally all costs associated with replacement of any palm trees that require replacement due to death, disease or injury. Any replacement tree shall be of the same species and sex and of comparable size to the tree replaced. City and TIC shall mutually agree upon the need for replacement of any tree, and the source of supply. If TIC and Newport are unable to agree whether any palm should be replaced, or on the source of supply, City and TIC agree to in good faith mutually select and retain an independent horticultural consultant to resolve such differences, whose recommendations as to the advisability of replacement and source of supply will be binding upon both parties. City shall be responsible for providing the labor 'to accomplish the replacement. TIC shall provide funds to purchase the replace- ment tree. Each party shall be reimbursed by the other.party for expenses in excess of its share within thirty (30) days of receipt of an invoice pursuant to this paragraph. 4. City shall perform all activities in connection with maintenance of the trees located in the areas shown in red on Exhibit C hereto. TIC shall perform all maintenance activities for trees located in the areas shown in blue on Exhibit C hereto. Such activities shall include without limitation pruning as needed but no less than annually; pest control and fertilization; provided, however, that irrigation for all trees in 'the Maintenance Area shall be the responsibility of TIC. 5. TIC shall be responsible for all activities in connection with the main- tenance of landscaping, exclusive of trees, in the taintenance Area; provided, however, that TIC shall provide adequate irrigation for the trees located in the haintenance Area as indicated in Paragraph 4. Such activities shall include trimming of shrubs and grass, pest control, fertilization and irrigation. TIC shall be responsible for all activities and associated expense relating to the installation and maintenance of the irrigation system in the Maintenance Area. 6. The City shall pay for the costs of utilities associated with maintenance of the median in the areas shown in yellow on Exhibit D attached hereto. TIC will pay for allremaining utilities costs associated with maintenance under this Letter Agreement. Each party shall make arrangements to be invoiced directly by the pro vider of utilities for costs for which each party is responsible. 7: TIC and City shall indemnify, defend and hold the other harmless with respect to any claim, loss, damage or injury that arises out of, or is In any way related to the performance by each of them or their respective officers, agents, employees or representatives, of any of the duties or acts authorized by this Letter Agreement. 8. TIC shall have the right to take all reasonable action necessary or convenient to perform its duties and obligations under this Letter Agreement including the right to enter onto City -owned property and remove portions of street or sidewalk surfacing. Any work done by TIC within any street or .. 7 - 9 0 W. Robert H. Burnham February 5, 1985 Page Three sidewalk shall be performed pursuant to a - permit issued by City and TIC agrees to restore any surface area affected by its activities to substantially the same condition as existed prior to the commencement of work. This Letter Agreement constitutes the entire understanding of the parties hereto and may be amended only by a writing, executed by authorized representatives of the parties. If the above terms and conditions are acceptable to you please sign below in the space provided, return the executed copies to me for execution by The Irvine Company. 1 will return a fully executed copy for your files. Sincerely, hIarney an Associate Division Counsel NEB:clg Attachments Agreed and Accepted This day of fe — 1985. City 91 Newpor Be h By Ronala A. Wnitiey , ector Parks, Beaches & Rec eation Appr ed as to Form [City ttorne THE By: Its By:, / z e e Its Assi 8 •I1., 421. wa•ulm 0 pill LL LI ni '. 7P Ir L" LOD" cr IL a lie DIRo'. lit ftil:!l6i� i? ii -. 12 Attachment B January 14, 1985 CITY COUNCII AGENDA ITEM N0, TO: CITY COUNCIL FROM: Utilities Director SUBJECT: NEWPORT CENTER STREET LIGHT CONVERSION RECOMMENDATION: Approve an agreement transferring the operation and maintenance of the Newport Center street lighting to the Irvine Company. DISCUSSION: The City of Newport Beach has operated and maintained the street lights within Newport Center since the Center was first constructed. In 1973, at the beginning of the energy crisis, one -half of the street lights in Newport Center were turned off. They have not been turned back on. The Irvine Company is presently putting great effort into a refurbishment of Newport Center. In connection with this program, the Company wants to upgrade the lighting within the center through the use of metal halide lamps and also by energiz- ing the lights that are presently turned off. The Company selected metal halide lamps because they provide an extremely white glow and will match the lighting used to light the buildings and parking lots. While metal halides are energy efficient, they have the disadvantage of having a very short lamp life. This life span necessitates a maintenance program that is labor and material intensive and for this reason metal halides are not used in conventional street lighting systems. It• is also for this reason that the City does not recommend upgrading the Newport Center street lighting system at public expense. The proposed agreement would transfer the maintenance and operation of the Newport Center street light system to the Irvine Company. The City would, however, contribute on an annual basis an amount equal to the present energy expense of $29,404 plus any inflationary cost increases, l eph Devlin litre.. Director be 13 � a .1 II ;! n �lYo�.�v fi 1I I 1 V f -i y�-J'i ,�? i 1 t C n G+�a i� . ���" 4�tl /f ef,'j; ♦{� 4 :.Fit %Jt 1 hz / CLfMFNrE \ I \ -,' cep AN' I Da"• s//Oia, 'mac '.•"�.- .•:�sr.. ,�. /R!/ /NE COAST CO!/NTR✓ CI-4116 _ _ ISLAND V9 1 lop ccv♦vR.,r�- E�ilC pR MA ?G c C \ \\� EXHIBIT IAI' �9 14 r 11 11 r.� a. ri /,�- 1 1 ��� /; .. r`S C •••,i� � k , i4Wt - '. "'1% ir1 1 �f�\; . \t d .' ill G y,`�sy �• ,. l 1a�it - 31a�'f, tell bi m _S�i •lxi. I! FASHION ISLAND /1V!/ /N6 CO,JST WeIAMRV CL UB c Sj WME A0* 7n; - 0 P1 D � o 15 i r/ rr r 1 /Rillme COUNTRY coosr C/- UB CQIsST ISLAND ::2p-z �ti� FASHION ISLAND 4 , Cp o\� Go \\ \\� EXHIBIT 'A` 9 16 r AV 1 C, '. \\ 1!n Z. 1 J� V /Rillme COUNTRY coosr C/- UB CQIsST ISLAND ::2p-z �ti� FASHION ISLAND 4 , Cp o\� Go \\ \\� EXHIBIT 'A` 9 16 ,1 fl f. A >f�ff f •f7 �P�1 1 �f 17 .� }F \� / —, I ,��_I .,'iJJI • �.� i `� ' ....:mot } . �ti /,.•i1 � +� ^•K.`\^ '�' '`�,`, ill' 7� ,: �r� \�a�' �i,:� �l1 �% 1 � \ \ k ��. Cpiwii •- �i ?jF� I I \I � �. — jji i• . (2,-' • /Rl� /NE COQSr COC/NT,PV CG U8 ��atra� `SLQND 1 � \ N. FASHION ISLAND CpR�4 ^TE MdDdpold' d$ �-- • 7 coca c�n 17 1 CITY OF NEWPORT BEACH TO: FINANCE DIRECTOR Utilities FROM: CITY CLERK DATE:. February 14, 1985 SUBJECT: Contract No. 9-2489 OFFICE OF THE CITY CLERK (714(640 -2251 Description of Contract Agreement for Modification S Maintenance of Street Lighting System Effective date of Contract Februaty 13, 1985 Authorized by Minute Action, approved on January 14, 1985 Contract with The Irvine Company Address 550 Newport Center Drive Newport Beach, CA 92660 -9959 Amount of Contract (See Agreement) Wanda E. Andersen City Clerk WEA:lr attach. City Hall • 3300 Newport Boulevard, Newport Beach, California 92663 18 E ACREEMENT FOR NM1FI CAT ION & MAINTENANCE Coil STREET LICHTING SYSTEM THIS ACREEM`=NT, entered into this% day of 1985, by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City (hereinafter "City ") and THE IRVINE COMPANY, a Michigan Corporation, duly authorized and existing under and by virtue of the laws of the State of Michigan, (hereinafter ( "TIC "), is made with reference to the following facts: A. City owns, operates and maintains a street lighting system within public utilities easements located in Newport Center; B. The precise location of the street lighting systems covered by the terms of this Agreement are as set forth as Exhibit "A"; C. TIC, the principal owner of property within Newport Center, is presently engaged in refurbislrnent of certain improvements within the shopping center and, in conjunction with that project, would like to make certain minor modifications to the street lighting system; 19 D. In consideration of City's permission to make changes to the street lighting system and amounts paid by the City to TIC pursuant to Paragraph 3 hereof, TIC will operate and maintain the system subject to City compensating TIC for certain fixed energy costs; E. This Agreement is in the public interest in that City will be relieved of the costs incurred in the maintenance and repair of the system, and the appearance of the area will be improved with the modifications to be made by TIC pursuant to this Agreement. MOW, TI-EREFORE, BE IT RESOLVED the parties agree as follows: 1. City hereby permits TIC to construct or Install certain minor modifications, including but not limited to the replacement of the luminaire, conduit and wiring, to the street lighting system within Newport Center as shown on Exhibit "A" hereto. The modifications shall be made in conformance with the plans and /or specifications required by the Utilities Director of the City of Newport Beach. 2 20 • 2. TIC, In consideration of the rights granted by this Agreement, agrees to do the following: (a) Maintain and repair the street lighting system, shown on Exhibit "A ". TIC "s obligation to maintain and repair the system shall extend to all maintenance and repairs, irrespective of cost, necessary to keep the system in good working order and condition; (b) Except as provided in Paragraph 3, TIC shall pay all costs and expenses that relate, in any way, to the installation of modificotions and the operation and maintenance of the street lighting system, including but not limited to electrical bills and charges; (c) TIC shall indemnify, defend and hold City harmless with respect to any claim, loss, damage or injury that arise out of, or is in any way related, to the performance by TIC, or its officers, agents, employees or representatives, of any of the duties or acts authorized by this Agreement; 3 21 9 0 3. In consideration of TIC's agreement to the terms and conditions contained herein, City shall, within 30 days from the receipt of a monthly invoice pay the sum of Twenty Three Thousand, One Hundred Seventy Dollars and no Cents ($23,170.00). This amount shall be adjusted on a monthly basis to reflect percentage increases or decreases in energy rates charged to TIC, which become effective after the date of this Agreement. 4. TIC shall have the right to take all reasonable action necessary or convenient to perform its duties and obligations under this Agreement including the right to enter onto City -owned property and remove portions of street or sidewalk surfacing. Any work done by TIC within any street or sidewalk shall be performed pursuant to permit issued by City and TIC agrees to restore'any surface area affected by its activities to substantially the some condition as existed prior to the commencement of work. 5. City reserves the right to make emergency repairs to the street lighting system as it may deem necesary for the immediate protection of the public health and safety. TIC agrees to reimburse City for any reasonable costs and expense incurred in effecting such repairs. Cv 22 6. This Agreement constitutes the entire understanding of the parties hereto and may be amended only by a writing,• executed by authorized representatives of the parties. Executed the day and year first above written at Newport Beach, California. ATTUT Q-4 City Cler < C� AS TO FORM orney AGP /Devlin 5 CITY CITY OF NEWPORT BEACH Mayor L: TIC t" THE IRVINE COMPANY uN By: By: 23 •., l/ 1 J I/ pt ' _p�,QV�lil • -�`f �,�` � \ '� \, �✓..G .� C .� ._..� V rr//"p /,,(� '� = °„aa 1 ��� 11 •• 3 �Il ?A'F . `�.� �•``P •- 1•l;•w � � j�✓� 1 � ,� l„ s7 �1 of -.i, •;�` /��.�i'�j .r � k ..' // Ih tell EMENtE ft cov/vr/e✓ lz'-' c oasr cove FASHION ISLAND 1, " 3- �N7dM wl'�P,- 4� tai ✓ /lp 0'P? . VN �caTTT1 gAKSIDE SERE rE4. Sf17Doo aj 4 CE QOSL Ndpd pold � _. O Vj L.ANO �\ oa EXHIBIT 'A' 24 0 0 /S/ MENURN4XIM OFFICE OF THE CITY ATTOR,4EY February 8, 1985 To: Wanda Roggio - City Clerk From: Robert H. Burnham - City Attorney Re: Lighting Agreement Attached please find the original Lighting Agreement signed by the Irvine Company. Please have the Mayor sign the Agreement and then attest. The City Clerk's office should retain the original and forward a copy of the signed document to our office for distribution to the Irvine Company. ert I. urn am 25 Attachment C LIGHTING & LA MSCAPE MAINTENANCE AGREEiVIENT BETWEEN THE CITY OF NEWPORT BEACH ANT THE IRVINE COMPANY LLC This Lighting & Landscape Maintenanco Agreement ("Agreement') is made and entered into this 28 day of January, 2014, by and between City of Newport Beach, a California municipal corporation and charter city ("City" ), and The Irvine Company LLC, a Delaware limited liability company ( "TIC"). City and TIC are sometimes individually referred to herein as a "Party", and collectively referred to as the "Parties." RECITALS A. TIC and City entered into that certain letter agreement dated February 15, 1985 and that certain Agreement for Modification & Maintenance of Street Lighting System dated February 13, 1985, each addressing cost and maintenance responsibilities for trees, landscaping, irrigation, utilities, street lighting and related improvementE (collectively, the "Improvements ") located within the Fashion Island/Newport Center shopping area in Newport Beach, California (together, the "Prior Agreements "). B. TIC and City desire to revise the responsibilities and other terms contained in the Prior Agreements in order to provide City with greater certainty as to the cost of such responsibilities and otherwise clarify the rights and obligations of each Party as to maintenance, inspection and other matters relating to the .Improvements. The various Improvements to be maintained by the Parties pursuant to this Agreement are located within the portions of.the Fashion Island/Nowport Center shopping area depicted on Exhibit A which locations are referred to collectively in this Agreement as the "Maintenance Aren." NOW, THEREFORE, in consideration of the above Recitals and the mutual promises contained herein, TIC and City hereby agree as follows: AG11EEMENT 1. hncorooration.of Recitals. The above Recitals are incorporated into this Agreement by this reference. 2. Effective Date. The terns and provisions of this Agreement shall be deemed effective on January 1, 201.4 (the "Effective Date ") and shall continue in effect until terminated as provided in Section LO below. Prior Agreements: City Payment Obligations. TIC and City hereby agree to terminate the-Prior Agreements as of the Effective Date; -provided however, that the payment and indemnity obligations of each Party under the Prior Agreements with respect to matters occurring prior to the Effective Date shall remain in effect. To that end, City shall pay to TIC the sum of Eighty - Eight Thousand Four Hundred Fifty -Eight Dollars and Eighty -Six Cents ($88,458.86) for water and utilities owed to TIC under the Prior Agreements, which amount City agrees to pay to TIC within ten (10) business days of City Council approval of this Agreement. All rights and obligations of the Parties with -respect to the Improvements arising on and after the Effective Date shall be governed by the terms of this Agreement. 26 d. Maintenance & Cost Obligations. The following are the respective obligations of each Party under this Agreement regarding cost and maintenance of the Improvements: A. Landscape Maintenance. i. TIC Landscape Maintenance Obligations. TIC shall, at its sole cost and expense, provide, or cause to be provided, the following: (a) landscape maintenance of all trees (including, without limitation, replacement of dead or diseased trees with replacement trees in a thirty -six inch (36 ") box or larger) located within the portions of the Maintenance Area depicted on Exhibit B as the "TIC Tree Areas'; (b) landscape maintenance of all grass, shrubs, bushes and other landscaping (including, without limitation, replacement of dead or diseased grass, shrubs, bushes and other landscaping with plants of the same variety and approximate size) located within the portions of the Maintenance Area depicted on Exhibit B as the "TIC Turf Areas"; (c) maintenance of all landscape irrigation systems (including, without limitation, repair or replacement of broken, malfunctioning or inoperable irrigation systems) that are not owned by the water utility that provide water to trees and landscaping in the Maintenance Area (whether the irrigation systems are located within TIC Tree Areas, TIC Turf Areas or City Tree Areas); and (d) maintenance of all signage /entry monuments related to property owned by TIC in the Maintenance Area. ii. City Landscape Maintenance Obligations. City shall, at its sole cost and expense, provide, or cause to be provided, the following: (a) landscape maintenance of all trees (including, without limitation, replacement of dead or diseased trees with replacement trees in a thirty -six inch (36 ") box or larger) located within the portions of the Maintenance Area located outside of the TIC Tree Areas. Such City - maintained tree areas are depicted on Exhibit C as the "City 'free Areas'; (b) maintenance of all signage /entry monuments related to City Hall and the City Library located within the Maintenance Area. B. Lighting Maintenance. i. TIC Light Maintenance Obligations. TIC shall, at its sole cost and expense, maintain all improvements used to light landscaping, trees and signage /entry monuments other than those related to City Hall, the City Library and the Street Lighting Improvements defined below (collectively, `Landscape Lighting Improvements ") in the Maintenance Area. ii. City Light Maintenance Obligations. City_ shall, at its sole cost and expense, perform the following during the term of this Agreement: 27 (a) maintain, repair and replace all street lights, including, without limitation, all posts, light bulbs, standards and electrical components other than those related to the Landscape Lighting Improvements (collectively, the "Street Lighting Improvements ") located in the Maintenance Area. City shall be solely responsible for all maintenance, repair and replacement of the Street Lighting Improvements regardless of the cause of the damage, provided the damage is not caused by TIC or its contractors. City shall repaint the painted portions of the Street Lighting Improvements (I) as required as a result of an inspection pursuant to subsection 4.B.ii.c below, and (II) as necessary to maintain them in good condition and appearance. (b) City shall retain a professional consultant to perform an ultrasonic inspection of the Street Lighting Improvements once every year commencing on July 1, 2014 during the term of this Agreement (the "Annual Ultrasonic Inspection "). Upon the written request of TIC, City shall, or require its consultant to, provide a written report of the requested Annual Ultrasonic Inspection to TIC within ten (10) business days of City's receipt of TIC's written request. (c) Promptly after receipt of each Annual Ultrasonic Inspection report that designates Street Lighting Improvements that require replacement, repainting or other maintenance work (and in any event within six (6) months after receipt of such report), City shall commence the repainting or repair of such designated improvements and diligently thereafter complete such work in a timely manner. (d) TIC has previously delivered to City a copy of the Ultrasonic Inspection report of the Street Lighting Improvements prepared by PEM in October 2013 (the "PEM Report'). TIC represents and warrants that it shall, within one hundred and eighty (180) calendar days of the Effective Date, replace, repaint or repair the poles listed on Exhibit D attached hereto, which are the poles identified in the PEM Report as requiring replacement, repainting or repairs. In addition, TIC shall, wilhin such one hundred and eighty (180) calendar day period, inspect and bring the seven (7) electrical service cabinets (located in the approximate locations depicted on Exhibit E into good operational condition. TIC shall pay For the cost of the inspection and report prepared by PEM, as well as the cost of such replacement, repair and repainting of the poles and the electrical service cabinets, at TIC's sole cost and expense. C. Modifications to Street Lighting Improvements. Except as provided in this subsection and subsection 6(B) below, City shall not modify the design or components of the Street Lighting Improvements unless such modification has been mutually agreed upon by the Parties. City shall, however, have the right to change the type of bulbs in the Street :Lighting Improvements upon prior written notice to TIC so long as the new bulbs are of the same or greater luminosity as the then existing bulbs. Any change in the type of bulbs in the Street Lighting Improvements to a lower luminosity shall require the mutual agreement of the Parties. City shalt be the sole Party responsible for any election to change the design or luminosity of the Street Lighting Improvements, and TIC shall bear no liability for City's decision to make a change, despite any consent or agreement by TIC to any request by City. D. Cost of Utilities. i. TIC Utility Cost Obligations. TIC shall, at its sole cost and expense, pay for (a) the electrical bills for all electricity used for operation of the Landscape Lighting Improvements 3 28 within the Maintenance Area, (b) the cost of electricity supplied to the irrigation meters, and (c) the water bills for all water delivered to the _Maintenance Area for maintenance of the trees and landscaping described in this Agreement. ii. City Utility Cost Obligations. City shall, at its sole cost and expense, pay for all electrical bills for all electricity used for operation of the Street Lighting Improvements, irrigation systems and utility meters (other than the irrigation meters) within the Maintenance Area. E. Water Usage in Maintenance Area. To the extent applicable to water usage in the Maintenance Area, TIC shall comply with the water conservation and supply level requirements of Chapter 14.16 of the City's Municipal Code, as the same may be amended from time to time. Subject to its compliance with the City Water Ordinance, TIC shall have the right to determine, in its sole and absolute discretion, the time and duration of watering for all trees and landscaped areas within the Maintenance Area, including the TIC Tree Areas, the TIC Turf Areas and the City Tree Areas. S. Access to Perform Maintenance. Effective on the Effective Date, the Party that owns the land where the maintenance activity is to take place (the "Owner Patty ") hereby grants to the other Party a nonexclusive right to access the land of the Owner Party required to fulfill the maintaining Party's obligations set forth in this Agreement, subject to the following conditions: A. Access Limited. Each entry by the maintaining Party shall be (i) only for the obligations set forth herein, (ii) limited to the areas of the Owner Party's property as necessary to perform the maintenance, and (iii) limited in duration to the amount of time during each entry as reasonably required to fulfill such maintenance obligations. B. No Interference. The maintaining Party shall perform its maintenance activities in a manner that minimizes, to the extent reasonably possible, interference with the reasonable use and enjoyment of the Owner Party's property by the Owner Party and any of its representatives, lessees or occupants. C. As Is Condition. The Owner Party shall have no duty to inspect its properly and no duty to disclose or warn the maintaining Party of any latent or patent defect, condition or risk that might be incurred during the maintaining Party's presence on the property of the Owner Party. The maintaining Party has inspected or will inspect each area of the Owner Party's property that the maintaining Party enters and hereby agrees that it accepts the condition of the Owner Party's property in its "AS IS" condition. D. Insurance. Prior to any entry on the property of the Owner Party, the maintaining Party shall comply with the insurance requirements set forth in Section 12 below. E. Supervision and Control. During entry on the property of the Owner Party, the maintaining Party and its maintenance contractors shall be under the supervision and control of the maintaining Party. Each person entering the property of the Owner Party under this provision shall be considered to be acting as the maintaining Party's agent, and all such persons shall enter such property at their own risk. F. Restoration: Repair of Damage. Upon completion of the maintenance activity, the maintaining Party shall restore and repair any portion of the property of the Owner Party 4 29 affected or damaged in the course of performing the maintenance, including, without limitation, replacing in kind (with equal or better quality) any improvements located on such property to at least as good condition as existed prior to the maintenance activity. 6. Standard of Maintenance. Each Party, at its sole cost and expense, shall perform its maintenance obligations in accordance with the following standards: A. Landscaping/Tree Standards. All landscaping and trees within the Maintenance Area shall be maintained in healthy and attractive condition, consistent with the appearance of other landscaping at TIC's commercial retail shopping center known as Fashion Island/Newport Center. In any event, the Parties agree that City shall be deemed to be in compliance with the "attractive condition" requirement of the preceding sentence so long as City maintains the landscaping and trees for which it is responsible in compliance with ANSI A300 standards (as amended or updated from time to time) and the trim cycles described on Exhibit F to this Agreement (as said trim cycles may be amended from time to time upon mutual agreement of the Parties). B. Lighting Improvement Standards. All Landscape Lighting Improvements and Street Lighting Improvements shall be maintained in good and attractive condition, consistent with the appearance of other lighting improvements servicing commercial properties owned by TIC in Newport Beach, California. If any light poles in the Street Lighting Improvements require painting or replacement pursuant to subsection 4.B.ii of this Agreement, City shall (i) either repaint the poles with epoxy paint to match the existing white color or repaint with another color that is mutually acceptable to the Parties, and (ii) replace any pole requiring replacement with an Ameron JS306 single or double- headed (as applicable) galvanized pole (or like -kind equivalent reasonably acceptable to the Parties) of the same height and color as the pole being replaced. Maintenance Coordination. With respect to communications between the Parties as to maintenance, inspection and other matters relating to this Agreement, City and TIC designate the following persons as their respective contact persons: A. City Contact Person. City's Municipal Operations Director, telephone (949) 644 -3055, shall be the City's Contact Person. B. TIC Contact Person. The Operations Manager, Newport Center, telephone (949) 729 -1450, shall be TIC's Contact Person. City and TIC may, at any time, change their respective representative by providing written notice to the other Party. S. Failure to Perform. If either Party fails to fulfill its maintenance or other responsibilities under this Agreement (the "Defaulting Party"), the other Party may provide written notice to the Defaulting Party of such failure describing the deficiencies in reasonable detail (the "Deficiency Notice "). If such deficiency is not corrected within ten (10) business days of receipt of tine Deficiency Notice, the other Party shall have the right, but not the obligation, to cure the deficiency; provided, however, that if the deficiency is of a type that cannot reasonably be cured within ten (10) business days, it will be deemed Cured if the Defaulting Party commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. if the non - Defaulting Party elects to cure the deficiency, the Defaulting Party shall 30 reimburse the non - Defaulting Party for its reasonable actual costs incurred in curing the deficiency within fifteen (15) calendar days of the Defaulting Party's receipt and approval of the invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by the non - Defaulting Party. 9. Liens. Neither Party shall suffer or permit to be enforced against the other Party's property any mechanics, laborers, materialmens, contractors, subcontractors, or any other liens, claims or demands arising from any maintenance or other work performed by such Party, and such Party shall pay or cause to be paid all of said liens, claims and demands before any action is brought to enforce the same against any portion of the other Party's property or any other land within the Maintenance Area. 10. Tenn. This Agreement shall remain in effect from the Effective Date for a period of ten (10) years, and shall automatically renew for two (2) successive periods of ten (10) years each unless at least six (6) months prior to the then effective expiration date, the terminating Party delivers written notice to the other Party of the terminating Party's election not to renew this Agreement. 11. Assignment. Neither Party shall have the right to assign all or any portion of this Agreement without the prior written consent of the other Party, except that TIC shall have the right to assign its rights and obligations under this Agreement to any entity controlling, controlled by or under common control with TIC without consent by City. No assignment shall be effective until the proposed assignee provides City (or TIC, as the case may be) with certificates of insurance verifying that the assignee's insurance coverage meets and complies with the insurance requirements of this Agreement. After the elective date of any such assignment by the Parties, the assigning Party shall have no further rights or obligations hereunder. 12. Insurance. Each Party shall require in its contracts with any contractors that perform installation, maintenance or other work in connection with the rights and obligations in this Agreement, that such contractors obtain, provide and maintain at all times during the performance of any such work, at no cost or expense to the other Party, policies of liability insurance of the type and amounts described below. Prior to performance of any work within the Maintenance Area, certificates of all required policies must be provided to the Owner Party by the maintaining Party. Except for workers compensation and any errors and omissions coverage, all insurance policies shall, to the extent coverage is provided under such policies, add the Owner Patty, its officers, agents, representatives and employees as additional insureds for all liability arising from the work performed by the maintaining Party within the Maintenance Area. A. Insurance policies for the following coverages shall be issued by companies approved or licensed to do business in California and assigned-A.M. Best's ratings of A- VII or other ratings acceptable to the Owner Party: i. Workers compensation insurance, including "Waiver of Subrogation" clause, covering all employees of such contractor, per the laws of the State of California, and Employer's Liability Insurance in the amount of One Million Dollars ($1,000,000) per occurrence for injuries incurred in performing maintenance or other work hereunder. ii. Commercial general liability insurance, including additional insured and primary and non - contributory wording, covering third party liability risks, including without limitation, contractual liability, in a minimum amount of Two Million Dollars ($2,000,000) single limit, per occurrence, for bodily injury and property damage, 6 31 including coverage for products and completed operations. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to the Maintenance Area, or the general aggregate limit shall be twice the occurrence limit. iii. Commercial automobile liability and property insurance, (including owned, non - owned, ]eased and hired vehicles used in connection with the work) in the amount of Two Million Dollars ($2,000,000) single limit; per occurrence for bodily injury and property damage. The policy shall be written on a "'date of occurrence" and not a "claims made" basis. City and TIC may, from time to time, require increases in the amounts of coverage specified above in connection with maintenance work on their respective properties to conform with the levels of insurance required in landscape maintenance or similar contracts used by such Patty. B. The liability insurance policy shall be written by a good and solvent insurance company authorized to do business in the State of California or which is approved in writing by City and TIC; and shall contain clauses specifying that (i) such insurance is primary and City's and TIC's respective insurance is excess and noncontributing with such primary coverage; (ii) the insurer waives all rights of subrogation against City and TIC; (iii) coverage shall not be suspended or cancelled without the responsible Party providing at least thirty (30) days prior written notice to the other Party of such suspension or cancellation; (iv) City and TIC are listed as additional insureds thereunder, and that there are no special limitations on the scope of protection afforded to City, TIC and any of their respective officers, officials, employees; directors, shareholders, parent and affiliated companies. 13. Indemnification. Each Party shall indemnify, defend and hold the other Party harmless from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including without limitation reasonable attorneys' fees (collectively, the "Claims "), whether incurred by or made against the indemnified Party, arising from or related to the performance or failure to perform the obligations of the indemnifying Party set forth in this Agreement, including without limitation the acts or omissions of such Patty and its contractors within the Maintenance Area; provided, however, that each Party's indemnity obligations hereunder shall not apply to the extent that any Claim is caused by the active negligence or willful misconduct of the other Party or any of such other Party's officers, officials, employees, directors or shareholders. 14. Notices. All Notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: If to City: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attention: Municipal Operations Director II'to TIC: Irvine Company Office Properties 620 Newport Center Drive, Suite 150 Newport Beach, CA 92660 Attn: Operations Nfanager, Newport Center 7 32 With a copy to: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: Group Senior Vice President & General Counsel 15. Incorporation of Exhibits. Exhibits A. B. C. D. E and F, which are attached hereto, are hereby incorporated herein by this reference. 16. Authority. The Parties represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 17. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. t8. No Third Pafi, Beneficiaries. This Agreement is not intended, and shall not be deemed or construed, to confer any rights, powers or privileges on any person, firm, partnership, corporation or other entity that is not a Party hereto. 19. Amendment. This Agreement may be amended only by a written instrument approved and executed by the Parties. 20. No Attomevs Fees. In the event of any dispute arising under this Agreement, the prevailing party shall not be entitled to its attorneys' fees. 21. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire agreement between the Parties pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the Parties, whether oral or written, are hereby superseded and merged herein. [Signature 1'age Follows] 33 [Signature Page to Agreement] IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth at the top of page 1 of this Agreement. «CIS,» City of Newport Beach, a California municipal corporation By: Rush N. Hill, U Mayor ATTEST: By: Leilani. I. Brown City Clerk Date: APPROV D AS TO ORI\ . By: --- Aaron C. Harp City Attorney Date: I I 'L Z � "TIC" The I m Company LLC, a Del waA limited Iriabilit By: kvv V V ' / Daniel T. Miller Senio Pr s dent By: iL Clui o 1 er J. Popma Vice President "I'. Jr 9 34 Exhibit A DEPICTION OF THE -MAINTENANCE AREA W :t A n � - PXA M1. AN t q:� 1�- Y 1 4 EXHIBIT A 1 36 .da e LS 36 Exhibit B DEPICTION OF TIC TREE AREAS AND TIC TURF AREAS WITB N MAINTENANCE AREA 37 s ,i PlU V ' T a 44 r �3 6 l 1 v� @yi EXHIBIT B Si ;fir r Fz�i 13 ::tE :_ r -r -p Y °v2 u i'MIS- 1. E Si ;fir r Fz�i 13 ::tE :_ r -r -p Y UI 9 ✓ ' s� S •t _ � t F s - .r"ta-Cli :''fig r '�s�tii�il'i4:�st: �...mti _ZkL.,.... August 5, 2013 38 r -p Y 3 *Y .r"ta-Cli :''fig r '�s�tii�il'i4:�st: �...mti _ZkL.,.... August 5, 2013 38 Exhibit C DEPICTION OF CITY TREE AREAS WITMN MAINTENANCE AREA 39 EXHIBIT C - 75 I is * 1 ♦ r ® 5 `n °{ 1 �"' Y 4 i ✓�1I 1 R I 1 �.. rj,C�� .� ♦vvi ,x y 1 eP. i �i 9. !li �' 2� `�i C ♦�`oyvi�`�v, f,��,; � a - � v! � J,;l �v� ..' ' ♦ ®r I — �. �. '�' • \1 `i•�, � � � � .,_ "„ ��. °y° 1`� \ etc i .?'� \ \ ■111 1��'�`'F @ 1`1� - - -.S ! ♦ \ - 1 1 j�Sc�` b �' _ ,111. # 1 '`° _ -�',� ;``loa \4\, ♦jaml `��11 _ �'�-•!'�ms��s > - _ -11 �y 1 ��� r� �i ` ♦ ♦'♦\,♦� .., + 'il` \ 271`,,z'_ � i i 1 1'Ye. i "'�- � 'gyp 1 + ♦ \ "b �1'P�� �, e ��� - 11 1 a xl 2 � n - 2{!u -rr ;`2 Ja�t Yt ` \; ♦,, 'yE 'GU., AN Acp — � � � �".e"iti ��'� fA-:e �Sj �.--z 1 1 �``�io a • e,. 1 - '� r? � 44�.i'1 2 [��.� �s �y � yq1` ♦♦ �s� •• ° r °.uFl ?1 �� 4 � y r tltt' yYp�'t ti at t,`r."'ih 'e 1 '! `♦ ' 1 Y 1 A r 1 .;. lUi° _ '` [9 ♦ ` ♦, t ,.� . -I��rb iE. � ; � � s, Wii VF . ♦♦ �♦ r z 1 ueYu, •� '. 1� Y AM - ',�. GtyTree Hreas _k -1 4. i f V L4WT,.km- 01MAky [m17W{61VmGC_P'Ilyry.•t!e -! <al July 26, 2013 40 W am Exhibit D LIST OF POLES TO BE REPLACED. REPAINTED OR REPAIRED Licht Poles to be Replaced #20 #114 #22 #136 #25 #137 #34 #176 #68 #178 #100 #204 #102 #205 #107 #206 #113 #220 Light Poles to be Repainted or Repaired #14 #100 #15 #105 #16 #106 #17 #107 #18 #129 #21 #150 #24 #170 #26 #188 #34 #193 #36 1 #194 #96 #195 #97 #216 #99 #225 41 Exhibit E LOCATIONS OF SEVEN ELECTRICAL SERVICE CABINETS 42 EXHIBIT E LOCATIONS OF SEVEN ELECTRICAL SERVICE CABINETS _ Tz= — �, FF � 4 g rt L $ y t t 1171 T Lki, a � str ! vsfl:4wTT' ` ;Ej Electrical Service Cabinets PRO x s T p L'•, LG!• n+} r14JU1?tk-JUi;'Ledn?+4EaWLLSerK_ We &rl l grayl•:3e rE:e F PUVA r f4•i6 �a � t10 \t Q IFNp u 1a�1 iNr l Al M n r P if �-3..• PJ- �� _ y-. _• ?_ �� -sit �� � .. +.. Y 5 9 � 'rL _ Tz= — �, FF � 4 g rt L $ y t t 1171 T Lki, a � str ! vsfl:4wTT' ` ;Ej Electrical Service Cabinets PRO x s T p L'•, LG!• n+} r14JU1?tk-JUi;'Ledn?+4EaWLLSerK_ We &rl l grayl•:3e rE:e kC. 4e 'v^r• _ < •.. Mi mswi . December 19. 2013 43 F PUVA r 9 �a � t10 \t Q IFNp 1a�1 iNr l Al M n r P if �-3..• PJ- �� _ kC. 4e 'v^r• _ < •.. Mi mswi . December 19. 2013 43 Exhibit F CITY LANDSCAPE NUMUE\ANCL+ TRLEI CYCLE SCHEDULE Ficus Trees: trim trees at least once every two (2) years. 2. Palm Trees: trim all palm trees located outside of the TIC Tree Areas as follows: a. trim palm fronds once per year between June I and August 31; and b. in pruning fronds on each tree, remove fronds below 2:00 and 10:00 (do not prune fronds higher than 2:00 and 10:00). 15 44 City of Newport Beach NO, BA- 14BA -029 BUDGET AMENDMENT 2013 -14 AMOUNT: ssa,a5s.es EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates ' Increase in Budgetary Fund Balance X Increase Expenditure Appropriations X Decrease in Budgetary Fund Balancc Transfer Budget Appropriations No effect on Budgetary Fund Balanp SOURCE: from existing budget appropriations from additional estimated revenues NX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To Increase expenditure appropriations from Water Enterprise Fund unappropriated fund balance to fund the City's share of costs for Newport Center utility costs in accordance with the Letter Agreement dated February 5, 1985, between The Irvine Company and the City. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 500 3605 • REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Amount Description Debit Credit Water Enterprise Fund - Fund Balance $88,458.86 Description Description Division Number 5500 Water Utilities Account Number 8250 Special Dept Expense NOC Signed: r V, q"'^ ''A' Gyk� 6^gi/ Financial Approval: Finance Director Signed: Administrative Approval: City Manager Signed: City Council Approval: City Clerk ' Automatic $88,458.86 1 ' `7 Date Date Date 45