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HomeMy WebLinkAbout2012-03-13 City Council Item No. 4C ITY OF LADE �LSIIAORE �% DREAM EXTREME» REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT A. BRADY CITY MANAGER DATE: MARCH 13, 2012 SUBJECT: AMENDMENT TO MANAGEMENT AND MAINTENANCE AGREEMENT FOR LLMD LANDSCAPE ZONE F Background In 1988, the City formed a Landscape and Lighting Maintenance District (the "LLMD ") pursuant to the Landscaping and Lighting Act of 1972. This LLMD included an area largely comprising the Tuscany Hills community and designated the landscape area to be maintained as Landscaping Zone F. In 2001, the City Council approved an agreement with homeowners' association, The Tuscany Hills Landscape & Recreation Corporation (the "Association "), under which the Association would manage and maintain the landscaping in Landscape Zone F covered by the LLMD. A copy of the agreement is attached. Under the terms of the agreement, the Association was compensated by payment equal to 95% of the LLMD assessments levied on the properties within Landscape Zone F. The agreement contemplated a maximum 10 year terms. However, the parties have continued to abide by the terms of the agreement while negotiations continued concerning the compensation formula. Discussion The Association has been faced with substantial cost increases over the last 10 years. As a result, the Association proposes an amendment to the terms of the existing agreement that will: 1. beginning in the current fiscal year, increase the compensation from 95% to 97.5% of the LLMD assessments levied on the properties within Landscape Zone F; and AGENDA ITEM NO. 4 Page 1 of 18 Amendment to Maintenance Agreement February 28, 2012 Page 2 2. provide for a maximum five (5) year contract extension by way of five one year extensions. A copy of the proposed amendment is attached for the City Councils' consideration. City staff continues to believe that the Association is the most efficient and effective provider of the necessary landscape services. Fiscal Impact The increase of 2.5% of LLMD levies within Landscape Zone F will result in an increased transfer of funds to the Association of approximately $7,000.00 annually. Recommendation Approve the attached First Amendment to Agreement for Management and Maintenance of Landscape Zone F and authorize the City Manager to execute such amendment subject to any minor modification as may be approved by the City Attorney. Prepared by: James Riley Director of Ad inistrative Services Approved by: Robert A. Brady City Manager Attachments: 1. Agreement for Management and Maintenance of Landscape Zone F 2. First Amendment to Agreement for Management and Maintenance of Landscape Zone F Third Amended and Restated Joint Powers Agreement Page 2 of 18 AGREEMENT FOR MANAGEMENT AND MAINTENANCE OF LANDSCAPING ZONE F This Agreement is made and entered into as of theZg day of 2001, by and between the City of Lake Elsinore, a municipal corporation ( "City ") and Ae Tuscany Hills Landscape & Recreation Corporation, a California homeowners association (the "Association "). RECITALS A. On June 28, 1988, pursuant to Resolution No. 88 -27, City formed the Landscape and Lighting Maintenance District (the "LLMD ") pursuant to the Landscaping and Lighting Act of I972, California Government Code Sections 22500, et seq. (the "Act "). The LLMD includes that certain area known as Landscaping Zone F as shown on the map attached hereto as Exhibit `B." B. The City has been performing all the services necessary for the maintenance of Landscaping Zone F. C. Association is a homeowners association whose members reside within the boundaries of Landscaping Zone F. D. Association possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement in connection with Landscaping Zone F on the terms and conditions described herein. E. City desires to retain Association to render these services and related work as set forth in this Agreement commencing July 1, 2001 (the "Effective Date "). AGREEMENT 1. Scope of Services Association shall perform the services described on the Scope of Services attached hereto as Exhibit "A." Association shall provide the services set out in the Scope of Services (including pay for the cost of all utilities related thereto) at the time, place, and in the manner specified in the Scope of Services (Exhibit "A "), subject to and at the direction of the City through its staff that it may provide from time to time (hereinafter the "Services "). Association shall make any revisions of its own work as required by the City and redo any work which the City finds unsatisfactory. 2. Area of Service The Services shall be performed solely within that certain area known as Landscaping Zone F as shown on Exhibit "B." 3. Restrictions on Expenditures The Services provided by the Association shall be authorized pursuant to and performed in accordance with the Act, and the most current Engineer's Report for the City of Lake Elsinore Citywide Landscape and Street Lighting District which is updated annually. The 2000 -01 Engineer's Report is attached hereto as Exhibit "C" for reference. The performance of the Services shall also be consistent with the requirements imposed by Proposition 218 adopted by the voters of the State of California on November 5, 1996. The City ManagenimtAgmt 5 114/00 -1 — Page 3 of 18 Attorney of the City shall determine the application of and compliance with the requirements of this Section 3 in her/his sole and absolute discretion. 4. Term. a. Initial Term The initial term of this Agreement (hereinafter referred to as the "Initial Term") shall commence on the Effective Date and, unless sooner terminated or extended under the terms and conditions of this Agreement, shall continue thereafter for one (1) year until 11:59 p.m. Pacific Time, June 30, 2002 (the "Expiration Date "). b. Association's Option to Extend Association is hereby granted the option to extend the term of this Agreement in its sole and absolute discretion for four (4) additional periods of one (1) year each (each an "Option Extension Term "). Association may exercise its option to extend by delivering written notice thereof to the City Manager of the City at least three (3) months before the then scheduled Expiration Date. Upon the Association's exercise of the option to extend for each Option Extension Term, all of the terms and conditions of this Agreement shall apply to such Option Extension Term, and a new Expiration Date shall automatically be established to be 11:59 p.m. Pacific Time on June 30 of the year following the year in which the option was exercised. In the event that the Association does not deliver written notice of its intent to exercise its option to extend within the time set forth in this Section 4b during the Initial Term or any Option Extension Term, then this Agreement shall terminate and be of no further force and effect upon the then existing Expiration Date. C. Mutual Option to Extend Following the exercise of all four of the Option Extension Terms in accordance with Section 4b hereof, the partes may agree to extend the term of this Agreement for five (5) additional periods of one (i) year each (each a "Mutual Extension Term ") pursuant to the written consent of the City Manager or his /her designee and the Association. Either party may notify the other party of its desire to enter into a Mutual Extension Term by delivering written notice thereof to the other party at least three (3) months before the then scheduled Expiration Date. Within thirty (30) days of receiving such notice, the other parry shall indicate whether or not it agrees to the extension. Upon the parties' written agreement to the extension of the term of this Agreement under this Section 4c, all of the terms and conditions of this Agreement shall apply to such Mutual Extension Term, and a new Expiration Date shall automatically be established to be 11:59 p.m. Pacific Time on June 30 of the year following the year in which the agreement to extend the term was reached. In the event that the parties do not agree to extend the term of this Agreement within the time set forth in this Section 4c during the last Option Extension Term or any Mutual Extension Term, then this Agreement shall terminate and be of no further force and effect upon the then existing Expiration Date. 5. Compensation Compensation to be paid to Association for the Services shall be ninety five percent (95 %) of the revenues actually received by the City from the LLMD assessment imposed exclusively on landowners within the Association's boundaries related to Landscaping Zone F (the "Tuscany Hills Assessment"). The Tuscany Hills Assessment shall be the sole source of payment for services rendered by the Association under this Agreement. Neither the City -wide LLMD assessment nor any other assessments, fees or taxes are included in the Tuscany Hills Assessment. Managenwnt Wnt 5114100 -2- Page 4 of 18 6. Method of Payment a. Submission of Budget Association shall submit its first annual budget for the Initial Term to the City's Director of Administrative Services within ten (10) days following approval of this Agreement by the City but in no event later than the Effective Date. Upon the extension of the term of this Agreement pursuant to Sections 4 b and c hereof, Association shall submit its proposed annual budget to the Director of Administrative Service not later than sixty (60) days prior to the applicable Expiration Date. For example in the event that the Association exercises its first Option Extension Term, the budget would be submitted on or before April 29, 2002. No more than ten percent (I0 %) of the budget shall be allocated towards and expended on overhead and administrative expenses to be incurred by the Association in providing the Services. All budgets shall be reviewed and approved by the Director of Administrative Services. b. Reserve Account City currently holds in reserve approximately Two Hundred Seventy Thousand Dollars ($270,000) in previously collected Tuscany Hills Assessments (the "Reserve "). Fifteen (15) days following the Effective Date, the Director of Administrative Services shall deduct from the Reserve any funds otherwise expended or committed to reimburse the City for expenditures related to services for Landscaping Zone F which were either performed or incurred before the Effective Date (the "Reimbursement Amount"). The amount remaining in the Reserve following the deduction of the Reimbursement Amount (the "Remaining Reserve ") shall be allocated by the Director of Administrative Services as follows: (i). Eighty -five percent (85 %) of the Remaining Reserve shall be transferred to a special account held by Association or its designee (the "General Account") to be utilized for payment for the Services to be provided by Association under the terms of this Agreement. Interest earned of the General Account shall be deposited into the General Account. (ii). Ten percent (10 %) of the Remaining Reserve shall be maintained in reserve by the Association, in a separate verified account held by Association or its designee (the "Association Reserve Account "), for use as contingency funds in the event of any emergency or unexpected expense related to Landscaping Zone F, as determined and approved by the Director of Administrative Services. Interest earned on the Association Reserve Account shall be deposited into the Association Reserve Account. (iii). The remaining five percent (5 %) of the Remaining Reserve shall be retained by the City to reimburse the City for its administrative costs. C. Payment of Assessments During the Initial Term and Extension Terms The parties acknowledge that the Tuscany hills Assessment is collected by the Riverside County Assessor's Office during the year and distributed to the City in four separate installments, generally occurring in January, May, June and August (the "County Installments "). The Director of Administrative Services shall forward such County Installment funds, less five percent (5 %), to the Association within fifteen (15) days of City's receipt of the County Installment to be held by the Association in accordance with the terms of this Agreement d_ Fiscal Year End Reporting Annually and within 30 days following each Expiration Date or following termination pursuant to Section 7, Association shall prepare a report Manag=entAgnl 5114/00 —3— Page 5 of 18 comparing its actual expenditures to the approved budget for the preceding fiscal year (the "Report"). The Report shall also contain a list of vendors and the amounts paid by the Association to each listed vendor. Additionally, the Report shall contain a certification under penalty of perjury by an officer of the Association (or the Association's General Manager) that all Quarterly Payments received by the Association were expended for goods and services within Landscaping Zone F consistent with the terms and restrictions set forth in this Agreement. The Report shall be submitted to the Director of Administrative Services. 7. Termination This Agreement may be terminated by the City immediately for cause or by either party without cause upon six (6) months written notice of termination. Cause for termination shall include, but is not limited to, the following: a. Filing by a third party of any legal challenge against the City regarding the validity, enforceability, performance or any other matter related to this Agreement, unless Association agrees that all the City's costs incurred in connection therewith, including without Iimitation, any legal fees incurred by the City, shall be paid from the Association's share of the County Installments notwithstanding Section 5 herein. b. Commencement of any action or proceeding by or against Association under any federal or state bankruptcy or insolvency law. C. Expenditure of funds for goods and services benefitting land outside of Landscaping Zone F and /or any expenditure which is not authorized pursuant to the Act and /or the Engineer's Report attached hereto as Exhibit C, or in any way inconsistent with the requirements imposed by Proposition 218. d. Failure of Association to perform or comply with any other term, covenant or provision of this Agreement not cured within thirty (30) days after Association receives written notice from City of the default. Upon termination by the City without cause pursuant to this Section 7, Association shall be entitled to compensation for services performed, together with expenses actually incurred or for damages incurred by third -party subcontractors (excepting Association's General Manager) hired by Association or its agents in reliance upon this Agreement. Upon termination by the City with cause pursuant to this Section 7, or termination by the Association without cause, Association shall be entitled to compensation for services performed, together with expenses actually incurred. 8. Return of Reserve and Association's Share of County Installments Upon termination or expiration of the Agreement, Association shall within fifteen(15) days following the termination or expiration, return all monies held in the General Account and the Association Reserve Account to the City including any interest earned thereon. 9. Association's Books. Records and Documents a. Association shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for MuiagementAgnt 5/14100 —4— Page 6 of 18 services, or expenditures and disbursements for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment by Association. b. Association shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, or his /her designated representative. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Association's address indicated for receipt of notices in this Agreement. d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Association's business, City may, by written request of the City Manager or hislher designee, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Association, Association's representatives, or Association's successor -in- interest. e. Upon satisfactory completion o£, or in the event of termination, suspension or abandonment of this Agreement, copies of all original documents, including but not limited to photographs and maps, and all other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall be made available to the City upon written request of the City Manager or his /her designee. 10. Independent Contractor It is understood that Association, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. The personnel performing the services under this Agreement on behalf of the Association shall at all times be under the Association's exclusive direction and control. Neither the City nor any of its officers, employees or agents shall have control over the conduct of the Association or any of Associations officers, employees, or agents, %EW6 set forth in this Agreement. Association shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Association shall not incur or have the power to incur any debt, obligation, or liability whatever against the City, or bind the City in any manner. Association's officers, employees and agents shall obtain no rights to retirement benefits or other benefits which accrue to City's employees. 11. Ability of Association City has relied upon the stated ability of Association to perform the Services hereunder as a material inducement to enter into this Agreement. Association shall therefore provide properly skilled personnel to perform all Services under this Agreement. All work performed by Association under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professional landscaping service. Ma gementAgnt 5114/00 —5— Page 7 of 18 12. Compliance with Laws Association shall use the standard of care in its industry to comply with all applicable federal, state and local laws, codes, ordinances and regulations. 13. Licenses Association represents and warrants to City that it has the licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Association to perform the Services herein. Association represents and warrants to City that Association shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required. 14. Indemnity Association agrees to defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therein), arising out of the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers. 15. Insurance Requirements a. Insurance Association shall procure and maintain for the duration of the term of this Agreement, the following insurance policies: i. Workers' Compensation Coverage Association shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for its employees in accordance with the laws of the State of California to the extent that it has any employees. In addition, Association shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by the City at least thirty (3 0) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Association for City. ii. General Liability Coverage Association shall maintain commercial general liability insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage To the extent applicable, Association shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Association arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non -owned vehicles, in an amount of not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. ManagementAgnt 5/14/00 —6— Page 8 of 18 b. Insurance as Part of Association's Administrative and Overhead Costs Insurance cost are properly included as part of the Association's overhead and administrative cost consistent with the limitation imposed in Section 6a hereof. C. Endorsements Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than A:VII and Association shall use its best efforts to cause such insurers to provide endorsements with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Association, including materials, parts or equipment furnished in connection with such work or operations. ii. This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self - insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents, or volunteers. vi. The insurance provided by this Policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City. d. Deductibles and Self - Insured Retentions Any deductibles or self - insured retentions must be declared to and approved by the City. At the City's option, Association shall demonstrate financial capability for payment of such deductibles or self - insured retentions. e. Certificates of Insurance Association shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. ManagmentAgnri 5/14/00 —7— Page 9 of 18 16. Hazardous Materials a. Hazardous Materials" means any hazardous or toxic substance, material or waste which is or becomes designated, classified or regulated by any local governmental authority, any agency of the State of California or any agency of the United States Government. The term "Hazardous Materials" includes (without limitation) any material or substance which (i) contains petroleum or any petroleum by- products, (ii) contains asbestos, (iii) contains urea formaldehyde foam insulation, (iv) constitutes a chlorinated solvent, (v) constitutes a polychlorinated biphenyl, (vi) constitutes a flammable explosive, (vii) consists of aluminum and aluminum compounds, (viii) is designated, classified or regulated as a "hazardous "or "toxic" substance, material or waste pursuant the Federal Water Pollution Control Act (33 U.S.C. §§ et seq.1317), the Federal Resource Conservation and Recovery Act (42 U.S.C.§ §.6901 et seq), the Comprehensive Environmental Response, Compensation and Liability Act, (42 U.S.C. §§ 9601 et seq.), under Sections 25115, 25117, 25122.7, and 2514, of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter - Presley - Tanner Hazardous Substance Account Act), under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), and under Article 11 of Title 22 of the California Code of Regulations, Division 4, Chapter 20. Each reference to a statute or law in this definition shall be deemed to include any amendments thereto which are enacted from time to time. b. Any use, generation, disposal, release or discharge by Association of Hazardous Materials in connection with any use of Landscaping Zone F by Association, including, without limitation, any agent, employee, or contractor of Association, shall be carried out at all times and in all respects in compliance with all applicable Governmental Regulations regulating Hazardous Materials. C. Association shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all applicable permits, licenses and Governmental Regulations affecting the use, occupancy, maintenance or other activity involving Landscaping Zone F by Association, under the authority of this Agreement including (without limitation) discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving Landscaping Zone F. Except as otherwise properly discharged in strict accordance with all applicable Governmental Regulations and only to the extent that such Hazardous Materials are the result of the Association's conduct and activities under this Agreement, Association shall cause such Hazardous Materials to be removed from Landscaping Zone F in accordance with applicable permit(s) and removed and transported solely by duly licensed haulers to duly licensed facilities for final disposal of such materials and wastes. Association shall in all respects handle, treat, deal with and manage any and all Hazardous Materials used on Landscaping Zone F by Association in, on, under or about Landscaping Zone F in connection with its operations in total conformity with all applicable Governmental Regulations and prudent industry practices regarding management of such Hazardous Materials. Upon the expiration or earlier termination of the Agreement, Association shall cause all Hazardous Materials introduced by Association or its agents, employees, or contractors to be removed from Landscaping Zone F in accordance with all applicable Governmental Regulations. Association shall not take or permit any remedial action in ManagementAgmt 5114/00 —8— Page 10 of 18 response to the presence of any Hazardous Materials in or about Landscaping Zone F, nor enter into any settlement agreement, consent decree or other compromise with respect to any claims relating to any Hazardous Materials in any way connected with Landscaping Zone F, without first notifying the City of Association's intention to do so and affording the City ample opportunity to appear, intervene or otherwise appropriately assert and protect the City's interest with respect thereto. d. Association shall immediately notify the City in writing of (i) any enforcement, cleanup, removal 'or other governmental or regulatory action that Association becomes aware is instituted, completed or threatened pursuant to any Governmental Regulations with respect to Landscaping Zone F; (ii) any claim of which Association is aware that is made or threatened by any person against Association or Landscaping Zone F relating to damage, contribution, cost recovery compensation, loss or injury resulting from or claimed to result from any Hazardous Materials; and (iii) any reports made by Association or of which Association is aware to any environmental agency arising out of or in connection with any Hazardous Materials in or removed from Landscaping Zone F, including any complaints, notices, warnings or asserted violations in connection therewith. Association shall also supply to the City as promptly as possible, and in any event within five (5) business days after Association first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations, relating in any way to Hazardous Materials in or about Landscaping Zone F. Association shall promptly deliver to the City copies of any hazardous waste manifests required by applicable Governmental Regulations for the legal and proper disposal of Hazardous Materials removed from Landscaping Zone F. e. Association shall indemnify, defend (by counsel reasonably acceptable to the City), protect, and hold the City, its officers, employees and agents harmless from and against any and all claims, actions, administrative proceedings, liabilities, penalties, forfeitures, judgments, suits, demands, losses or expenses (including remediation costs, attorneys' fees and litigation expenses), or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by (i) Association's or its employees', agents', contractors' or any party claiming through Association, improper or unlawful use, analysis, storage, transportation, generation of Hazardous Materials to, in, about or from Landscaping Zone F; or (ii) Association's failure to comply with any Hazardous Materials laws in connection with Association's use, operation, maintenance or management of Landscaping Zone F. Association's obligations hereunder shall include (without limitation) and whether foreseeable or unforeseeable, all costs of any required or necessary repair, cleanup or detoxification or decontamination of Landscaping Zone F, or the preparation and implementation of any closure, remedial action or other required plans in connection therewith, and shall survive the expiration or earlier termination of the Term. For purposes of the release and indemnity provisions hereof, any acts or omissions of Association, or by employees, agents, assignees, contractors or subcontractors of Association or others acting for or on behalf of Association (whether or not they are negligent, intentional, willful or unlawful) shall be attributable to Association. f. Notwithstanding any other provision of this Agreement, Association shall not be responsible nor shall this Section 16 apply to any Hazardous Materials existing or deposited within Landscaping Zone F which exist prior to the Effective Date and, further, the City warrants M=igcmentAgnt 5/14/00 — 9 — Page 11 of 18 that to its knowledge, no Hazardous Materials exist or have been deposited onto Landscaping Zone 7. This Section 16 shall survive cancellation, termination or expiration of this Agreement. 17. Notices Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to City: City of Lake Elsinore Attn: City Manager 130 South Main Street Lake Elsinore, CA 92530 If to Association: The Tuscany Hills Landscape & Recreation Corporation Attn: "7`S Sammerhiil D ywe— Lake Elsinore, CA 18. Entire Agreement This Agreement consisting of 10 pages, including the Recitals which are a substantive part hereof, and Exhibits A, B and C, each of which is incorporated herein by reference, constitutes the complete and exclusive statement of agreement between the City and Association. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 19. Amendments This Agreement may be modified or amended only by a written document executed by both Association and City and approved as to form by the City Attorney. 20. Assignment and Subcontracting The parties recognize that a substantial inducement to City for entering into this Agreement is the experience and competence of Association. Association shall be fully responsible to City for all acts or omissions of any subcontractors. Assignments of any or all rights, duties or obligations of the Association under this Agreement will be permitted only with the express written consent of the City Manager, or his/her designee. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 21. Waiver Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 22. Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. ManagementAgmi 5/14/00 -10- Page 12 of 18 23. Controlling Law Venue This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. 24. Litigation Expenses and Attorneys' Fees If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees. 25. Mediation The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and share the costs of mediation equally. It the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUPE ( "JAMS ") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 26. Execution This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 27. Authority to Enter Agreement Association has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. 28. Prohibited Interests Association maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Association, to solicit or secure this Agreement. Further, Association warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Association, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 29. Equal Op op rtunity Employ Association represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Association shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. ManagementAgmt 5/14/00 — Page 13 of 18 IN WITNESS WHEREOF the parties have caused this Agreement to be executed on the date first written above. CITY OF LAKE ELSINORE: THE TUSCANY. -HILLS LANDSCAPE & RECREATION O•'O'• •� Presi by: y)AaWRIVZ,� a�-- Secretary ATTEST: 2 L IJ City Clerk APPROVED AS TO FORM: VAN BLARCOM, LEIBOLD, MCCLENDON & MANN, PC by: Barbara Zeid Leibold, City Attorney M=geanentAgmt 5/14100 — Page 14 of 18 NOTICE EXERCISING OPTION TO EXTEND LLMD OPEN SPACE CONTRACT BETWEEN TUSCANY HILLS LANDSCAPE AND RECREATION CORPORATION AND THE CITY OF LAKE ELSINORE In accordance with the Agreement for Managcracm and Maintenance of Landscaping Lone F, Section 4h, Terrn — Association's Option to Extend the Tuscany Hills Landscape and itecreation Corporation hereby extends the term of this Agreement in its sole and absolute discretion for the last of the four (4) additional periods of one (1) year each, under the same original terms and conditions of the Agreement, as resolved by unanimous consent of the Tuscany I Tills Landscape and Recreation Corporation's Board of Directors on February 23, 2005. Effective )uue 30, 2005, the Agreement for \•lanagement and Maintenance of Landscaping Zone F will continue, without interruption, based upon the same original terms, based upon the execution of this addendum for a one (1) year term. It is understood and mutually agreed that this is the last of the four (4) yearly extensions. With the acknov ledgement of this addendum, the contract will expire only if cancellation notice is rnr ce in advance and in writing, and max be furthct renewed in accordance with Section 4c Mutual Option to Extend. All other terms and conditions of the original contract shall remain the same. Tuscany Hills Landscape and Recreation Corporation 75 Sumnu:rhill Drive. Lake Elsinore, CA 92532 -0115 By: James C. Hunt, Prestdenl ' 2005 Acknowledgement: The City of Lake Elsinore 130 South Main Street Take. Elsinore, CA 92530 By: Robes Brad "', City ldanager U: \kim \Tuscany Hills II.O.A \I..LiriD - ADDENDUM TO CONTRACT - 2005.doc 2005 Page 15 of 18 FIRST AMENDMENT TO AGREEMENT FOR MANAGEMENT AND MAINTENANCE OF LANDSCAPE ZONE F THIS FIRST AMENDMENT TO AGREEMENT FOR MANAGEMENT AND MAINTENANCE OF LANDSCAPE ZONE F (the "First Amendment ") is dated for identification purposes as of March 13, 2012 and is entered into by and between the CITY OF LAKE ELSINORE, a municipal corporation (the "City "), and THE TUSCANY HILLS LANDSCAPE & RECREATION CORPORATION, a California homeowners association (the "Association "). WHEREAS, the City and Association have previously entered into that certain Agreement for Management and Maintenance of Landscape Zone F dated as of May 22, 2001 (the "Agreement "). WHEREAS, the City and Association wish to amend the Agreement as set forth more fully herein. NOW, THEREFORE, City and Association hereby agree as follows: 1. AMENDMENT OF AGREEMENT (A) Section 4, Term, subpart (c) of the Agreement is hereby amended in its entirety to provide as follows: C. Mutual Option to Extend Beginning July 1, 2011, the parties may agree to extend the term of this Agreement for five (5) additional periods of one (1) year each, (each a "Mutual Extension Term "). Beginning with the Mutual Extension Term commencing on July 1, 2011 and for each Mutual Extension Term thereafter, the Mutual Extension Term shall be deemed to be exercised automatically unless notice is given as provided herein. Upon the extension of the term of this Agreement under this Section 4c, all of the terms and conditions of this Agreement shall apply to such Mutual Extension Term, and a new Expiration Date shall automatically be established to be 11:59 p.m. Pacific Time on June 30th of the following year. In the event that either party determines not to extend the term of this Agreement during any Mutual Extension Term, such party shall provide written notice to the other party at least two (2) months before the then scheduled Expiration Date and this Agreement shall terminate and be of no further force and effect upon the then existing Expiration Date. (B) Section 5, Compensation, of the Agreement is hereby amended in its entirety to provide as follows: 5. Compensation As of July 1, 2011, compensation to be paid to Association for the Services shall be ninety -seven and five tenths percent (97.5 %) of the revenues actually received by the City from the LLMD assessment imposed exclusively on landowners within the Association's boundaries related to Landscaping Zone F (the "Tuscany Hills Assessment "). The Tuscany Hills Assessment shall be the sole source of payment for services rendered by the Association under this Agreement. Page 16 of 18 Neither the City -wide LLMD assessment nor any other assessments, fees or taxes are included in the Tuscany Hills Assessment. (C) Section 6, Method of Payment, subpart (c) of the Agreement is hereby amended in its entirety to provide as follows: C. Payment of Assessments During the Initial Term and Extension Terms The parties acknowledge that the Tuscany Hills Assessment is collected by the Riverside County Assessor's Office during the year and distributed to the City in four separate installments, generally occurring in January, May, June and August (the "County Installments "). The Director of Administrative Services shall forward that portion of such County Installment funds as provided in Section 5 to the Association within fifteen (15) days of City's receipt of the County Installment to be held by the Association in accordance with the terms of this Agreement. 2. RATIFICATION AND REAFFIRMATION OF THE EXISTING AGREEMENET Except as modified by the terms of this First Amendment, all other terms and conditions of the Agreement shall remain in full force and effect, and the Agreement, as hereby amended, is ratified and confirmed. 3. INTERPRETATION In the event of any conflict between the provisions of the Agreement and the provisions of this First Amendment, the provisions of this First Amendment shall control. 4. EXECUTION IN COUNTERPARTS This First Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 5. EFFECTIVE DATE Upon execution by the City Manager, this First Amendment shall be deemed effective as of July 1, 2011. [Signatures on Next Page] 2 Page 17 of 18 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the day and year set forth below. "CITY" CITY OF LAKE ELSINORE, a municipal corporation 0 Robert A. Brady, City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney "ASSOCIATION" THE TUSCANY HILLS LANDSCAPE & RECREATION CORPORATION, a California homeowners association Date: By: President Secretary 3 Page 18 of 18