HomeMy WebLinkAboutMINUTES - 08142007 - C.13 C � s� L
TO: BOARD OF SUPERVISORS, AS THE GOVERNING `t - -_U� Contra
BOARD OF THE BLACKHAWK GEOLOGICAL HAZARD
ABATEMENT DISTRICT �- Costa
FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR CountyUI'�
DATE: August 14, 2007
SUBJECT: Agreement for Funding for the Blackhawk Geologic Hazard Abatement District, Danville area.
(County Service Area M-23 funds) (District III) Project No. 7760-6X5147
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDED ACTION: APPROVE and AUTHORIZE the Public Works Director, or designee to
terminate the April 22, 1986 agreement between the Blackhawk Geologic Hazard Abatement District
C'GHAD") and the County, on behalf of County Service Area M-23 (CSA M-23), and execute a new
agreement effective August 14, 2007 to provide continuing funding to the GHAD from surplus CSA M-23
revenues for an initial 20-year term, to be automatically renewed annually thereafter.
FISCAL IMPACT: : This contract will not impact County general funds as funding for the GHAD comes
from surplus CSA M-23 funds that are generated from ad valorem taxes based upon the assessed value
of all real property located within CSA M-23.
CONTINUED ON ATTACHMENT: ❑x SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE, OTHER
SIGNATURE(S): J
ACTION OF BO ON APPROVED AS RECOMMENDED _V-' OTHER
VOTE OF SUPERVISORS: 1 HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT
COPY OF AN ACTION TAKEN AND ENTERED ON
UNANIMOUS(ABSENT �Q;rJI/ ) MINUTES OF THE BOARD OF SUPERVISORS ON THE
AYES: NOES: DATE SHOWN.
ABSENT: ABSTAIN:
Contact: Warren Lai,Special Districts (313-2180)
.WL:ab x
G:\SpDist\Board Ordcrs\2007\08-14-07 GIIAD Balackhawk funding.doc ATTESTED
JOHN CEN, CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
cc: County Administrator
Assessor
Auditor-Controller
Conmiunity Development BY: DEPUTY
County Cotmsel
E.Whan,Engineering Services
H.I leard,Special Districts
Public Works Accotmling
SUBJECT: Agreement for Funding for the Blackhawk Geological Hazard Abatement District. Danville
area. (County Service Area M-23 funds) (District III) Project No. 7760-6X5147
DATE: August 14, 2007
PAGE: 2 of 2
REASONS FOR RECOMMENDATIONS AND BACKGROUND:
The County and Blackhawk GHAD entered into the original 1986 agreement to provide a source of
funding for the GHAD. After deducting funds from CSA M-23 revenue to pay the County for performing
drainage maintenance extended services, any surplus revenue is transferred to the Blackhawk GHAD.
The Blackhawk GHAD uses the surplus revenue to perform landslide abatement and repair work within its
boundaries. The 1986 agreement had an initial 20-year term that expired on April 22, 2006, but the
agreement is automatically renewed yearly thereafter under the terms of the agreement. Parties to the
agreement wish to execute a new agreement in order to eliminate outdated recitals, to extend the
contract for another 20-year term, and to provide a new description of CSA M-23 drainage maintenance
extended services. .
CONSEQUENCES OF NEGATIVE ACTION: The current 1986 agreement will continue to provide the
GHAD a source of funding as it is renewed automatically on an annual basis. However, using the old
agreement may encourage disputes regarding the County's responsibility to provide drainage
maintenance extended services since the description of such services in the 1986 agreement remains
unclear.
f
AGREEMENT
THIS AGREEMENT(hereinafter"Agreement") is entered into this 14th day of August,
2007 (the"Effective Date"), by and between the BLACKHAWK GEOLOGIC HAZARD
ABATEMENT DISTRICT, a geologic hazard abatement district created pursuant to Sections
26500 et.seq.of the Public Resources Code of the State of California(hereinafter"GHAD"), and
the COUNTY OF CONTRA COSTA, a political subdivision of the State of California, on behalf
of County Service Area M-23 (hereinafter."County"),pursuant to Sections 6500 et.seq. of the
Government Code of the State of California. GHAD and County are from time to time
hereinafter referred to as a"party"and collectively as"parties."
RECITALS
A. Pursuant to County Service Area Law(Sections 25210.1 et.seq. of the Govbnunent
Code of the State of California), County Service Area M-23 (hereinafter"M-23") was established
pursuant to Board of Supervisors Resolution No. 77/477, adopted June 14, 1977, to perform
parkway maintenance, street lighting, open space maintenance, drainage maintenance and parks
and recreation service.
B. Having dete mimed that the abatement of certain geologic hazards present within the
geographic area covered by M-23 is in the public interest and necessary for the health, safety and
welfare of persons and property within the M-23 service area, the Board of Supervisors on April
22, 1986, adopted Resolution No. 86/209 pursuant to which.the extended services to be
performed by M-23 were expanded to include geologic hazard abatement.
C. Pursuant to its authority under the County Service Area Law, the County has levied,
and intends to continue to levy, an ad valorem tax for M-23 purposes based upon the assessed
value of all real property located within M-23. Revenues received from such levies (the"M-23
Revenues") have been and will be credited in the County treasury to the account of M-23.
D. -By Board of Supervisors Resolution No. 86/212 adopted April 22, 1986, the County
ordered to be paid to Blackbawk Corporation the sum of$550,000 (hereinafter"Reimbursement
Payment") in reimbursement of a portion of the costs incurred-and sums expended by Blackhawk
Corporation to study and repair land failures occurring in the Blackhawk open space areas during
the winter of 1982-1983.
E. By Board of Supervisors Resolution No. 86/210, adopted April 22, 1986, GHAD
was formed to provide geologic hazard abatement services within the M-23 geographic area.
F. In order to make available to GHAD financial assistance by which the public interest
in abating geologic hazards may be served, the parties entered into an agreement on April 22,
1986, for the transfer of surplus M-23 revenues to the GHAD. Under the terms of that 1986
agreement, the initial term of the agreement was set to expire 20 years after the Effective Date, or
Page 1 of 5
1
on April 22, 2006, to be renewed automatically from year to year thereafter, unless otherwise
terminated or modified by mutual written consent of the parties.
G. As the parties desire to continue to provide GHAD with financial assistance from
surplus M-23 revenues for a term longer than a yearly renewal, parties agree to the following
terns:
AGREEMENT
1. Termination of April 22, 1986 Agreement. Parties agree that the April 22, 1986
agreement will automatically terminate, effective the same date that this Agreement becomes
effective. This Agreement is intended to replace and supercede the April 22, 1986 Agreement.
2. Transfer of Future M-23 Surplus Funds. Commencing January 1, 2008;and on each
succeeding January 1 and June 30 of each year during the term of this Agreement(each such date
hereafter a"Transfer Date"), County shall transfer to GHAD the Future M-23 Surplus. For the
purposes of this Agreement,"Future M-23 Surplus" shall meanall M-23 Revenues credited in
the County treasury to the account of M-23 as of the applicable Transfer Date after deducting
therefrom:
(a) All M-23 Revenues budgeted for the then current fiscal year to be expended
by the County for the drainage maintenance extended services within M-23 as specified in the
attached Exhibit A, as such services reasonably may be required from time to time, and
(b) Incidental administrative expenses incurred by the County for the provision
of such services.
3. Term. The initial term of this Agreement shall commence upon the Effective Date
and shall expire on the date that is 20 years after the Effective Date(the"Initial Term"), unless
the Initial Term is otherwise terminated pursuant to Section 7(4), or modified or terminated by
mutual written consent of the parties. Following the expiration of the Initial Term, the term of
this Agreement shall be automatically renewed for succeeding terms of one year each("Extended
Term"), unless the Extended Term is terminated pursuant to Section 7(a) or 7(b),or modified or
terminated by mutual written consent of the parties. Following the expiration of the Initial and
Extended Terms, this Agreement shall be terminated and of no further force and effect;provided,
however, that such termination shall not affect any right or duty arising on or before such
expiration.
.4. Deposit of Funds and Retention of Interest. Funds to be transferred to GHAD
pursuant to Section 2 of this Agreement shall be deposited in such account or accounts as GRAD
may specify by written notice to County. Any and all interest earned on funds so deposited shall
be credited to and retained by GRAD, and shall not be deemed at any time to constitute funds
credited to the County treasury.
Page 2 of 5
5. Hold Harmless Agreement. GHAD shall defend, indemnify, save and hold harmless
the County and its officers and employees from any and all claims, costs and liability for any
damages, injury or death arising directly or indirectly from or connected with the County's
transfer of Future M-23 Surplus to GHAD hereunder or due to or claimed or alleged to be due to
negligent or wrongful acts, errors or omissions of GHAD or any person under its control, save
and except claims or litigation arising through the County's sole negligence or willful
misconduct, and will make good to and reimburse the County for any expenditures, including
reasonable attorneys' fees, County may make by reason of such matters.
6. Cooperation in the Event of Legal or Other Challenge. In the event of any legal or
equitable action or other proceeding instituted by a third party or other governmental entity or
official challenging the validity and/or implementation of any provision of this Agreement, the
parties hereby agree to cooperate in defending said action or proceeding.
7. Default; Remedies; Termination.
(a) General Provisions. The failure or delay by either party to perform any term or
provision of this Agreement for a period of 90 calendar days after written notice thereof from the
other party shall constitute a default under this Agreement. Said notice shall specify the nature of
the alleged default and the manner in which said default may be satisfactorily cured.
After notice and expiration of such 90-day period without cure, the other party, at
its option, may in addition to all other rights and remedies provided herein or under applicable
law,terminate this Agreement by delivery of written notice of termination to the defaulting party,
or institute legal action to cure, correct or remedy any default, enforce any covenant or agreement
herein, enjoin any threatened or attempted violation or enforce by specific performance the
obligations and rights of the parties hereto.
(b) Ternination of Extended Term. The Extended Term of this Agreement may
be terminated by either party without cause, effective July 1 of the next succeeding fiscal year,
provided that such party give written notice of such tennination to the other party at least 180
days prior to said date.
8. Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
9. General.
(a)If any term,provision, covenant or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of
this Agreement shall continue in full force and effect.
(b) Each party shall execute and deliver to the other all such further instruments
and documents as may reasonably be necessary to carry out this Agreement in order to provide
and secure to the other party the full and complete enjoyment of its rights and privileges
hereunder.
Page 3 of 5
10. Notices: Any notice or communication required hereunder between County and
GHAD must be u1 writing, and may be given either personally or by registered or certified mail,
return receipt requested. If given by registered or certified mail, fhe same shall be deemed to
have been given and received on the first to occur of(i) actual receipt by any of the addressees
designated below as the party to whom notices are to be sent, or(ii) 5 days after a registered or
certified letter containing such notice,properly addressed, with postage prepaid, is deposited in
the United States mail. If personally delivered, a notice shall be deemed to have been given
when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving
10 days' written notice to the other party hereto, designate any other address in substitution of the
address to which such notice or communication shall be given. Such notices or communications
shall be given to the parties at their addresses set forth below:
If to County:
Contra Costa County
Public Works Director
255 Glacier Drive
Martinez, CA 94553
If to GRAD:
Blackhawk GHAD General Manager
5 Blackhawk Plaza Circle, Suite 103
Danville, CA 94506
11. Counterparts. This Agreement may be executed in duplicate original counterparts,
each of which shall be deemed to be an original, and all of which shall be deemed to constitute
one and the same agreement. This Agreement consists of five pages and one exhibit which
constitute the entire understanding and agreement of the parties. Said exhibit is incorporated
(Remainder of page intentionally left blank)
Page 4 of 5
ti
herein as if set forth in full, is made a part hereof for all purposes and is identified as follows:
Exhibit A: Map entitled "Drainage Maintenance Responsibility—Blackhawk CSA M-
23, GH-AD and Homeowners Associations last revised on June 11, 2007"
showing the drainage facilities to be maintained by County(CSA M-23)
and GRAD.
IN WITNESS WHEREOF, County and GHAD have each executed this Agreement as of
the Effective Date.
"County" "GRAD"
COUNTY OF CONTRA COSTA, Blackhawk Geologic Hazard
a political subdivision of the Stat alifornia, Abatement District
on behalf of County Servi A 3
By: By: H
Ch rd of Supervisors or Chair, oar o Supervisors, as Chair,
Designee Board of ®rectors of Blackhawk Geologic
Hazard Abatement District, or designee
Approved as to Form:
Silvano B. Marchesi
County Co el
By: ,
Deputy
ATTEST: Clerk of the Board of Supervisors
and County Administrator
By:
Deputy
HAGHADOackhawk\Storm Drain Reimburse Docs\1986 funding agt amend l.wpd
Page 5 of 5
1 -
'1
AGREEMENT
THIS AGREEMENT(hereinafter"Agreement")is entered into this 14th day of August,
2007 (the"Effective Date"), by and between the BLACKHAWK GEOLOGIC HAZARD
ABATEMENT DISTRICT, a geologic hazard abatement district created pursuant to Sections
26500 erseq.of the Public Resources Code of the State of California(hereinafter"GHAD"), and
the COUNTY OF CONTRA COSTA, a political subdivision of the State of Califomia, on behalf
of County Service Area M-23 (hereinafter"County"), pursuant to Sections 6500 et.seq. of the
Government Code of the State of California. GHAD and County are from time to time
hereinafter referred to as a"party" and collectively as"parties."
RECITALS
A. Pursuant to County Service Area Law(Sections 25210.1 et.seq. of the Government
Code of the State of California), County Service Area M-23 (hereinafter"M-23")was.established
pursuant to Board of Supervisors Resolution No. 77/477, adopted June 14, 1977, to perform
parkway maintenance, street lighting, open space maintenance, drainage maintenance and parks
and recreation service.
B. Having determined that the abatement of certain geologic hazards present within the
geographic area covered by M-23 is in the public interest and necessary for the health, safety and
welfare of persons and property within the M-23 service area, the Board of Supervisors on April
22, 1986, adopted Resolution No. 86/209 pursuant to which the extended services to be
performed by M-23 were expanded to include geologic hazard abatement.
C. Pursuant to its authority under the County Service Area Law, the County has levied,
and intends to continue to levy, an ad valorem tax for M-23 purposes based upon the assessed
value of all real property located within M-23. Revenues received from such levies(the "M-23
Revenues")have been and will be credited in the County treasury to the account of M-23.
D. By Board of Supervisors Resolution No. 86/212 adopted April 22, 1986, the County
ordered to be paid to Blackhawk Corporation the sum of$550,000(hereinafter"Reimbursement
Payment") in reimbursement of a portion of the costs incurred and sums expended by Blackhawk
Corporation to study and repair land failures occurring in the Blackhawk open space areas during
the winter of 1982-1983.
E. By Board of Supervisors Resolution No. 86/210, adopted April 22, 1986, GHAD
was formed to provide geologic hazard abatement services within the M-23 geographic area.
F. In order to make available to GHAD financial assistance by which the public interest
in abating geologic hazards may be served, the parties entered into an agreement on April 22,
1986, for the transfer of surplus M-23 revenues to the GHAD. Under the terms of that 1986
agreement, the initial term of the agreement was set to expire 20 years after the Effective Date, or
Page 1 of 5
on April 22, 2006, to be renewed automatically from year to year thereafter, unless otherwise
terminated or modified by mutual written consent of the parties.
G. As the parties desire to continue to provide GHAD with financial assistance from
surplus M-23 revenues for a term longer than a yearly renewal,parties agree to the following
terms:
AGREEMENT
I. Termination of April 22, 1986 Agreement. Parties agree that the April 22, 1986
agreement will automatically terminate, effective the same date that this Agreement becomes
effective. This Agreement is intended to replace and supercede the April 22, 1986 Agreement.
2. Transfer of Future M-23 Surplus Funds. Commencing January 1, 2008;and on each
succeeding January 1 and June 30 of each year during the term of this Agreement(each such date
hereafter a"Transfer Date"), County shall transfer to GHAD the Future M-23 Surplus. For the
purposes of this Agreement, "Future M-23 Surplus" shall mean all M-23 Revenues credited in
the County treasury to the account of M-23 as of the applicable Transfer Date after deducting
therefrom:
(a) All M-23 Revenues budgeted for the then current fiscal year to be expended
by the County for the drainage maintenance extended services within M-23 as specified in the
attached Exhibit A, as such services reasonably may be required from time to time, and
(b) Incidental administrative expenses incurred by the County for the provision
of such services.
3. Term. The initial term of this Agreement shall commence upon the Effective Date
and shall expire on the date that is 20 years after the Effective Date(the"Initial Term"), unless
the Initial Term is otherwise terminated pursuant to Section 7(a), or modified or terminated by
mutual written consent.of the parties. Following the expiration of the Initial Term, the term of
this Agreement shall be automatically renewed for succeeding terms of one year each ("Extended
Term"), unless the Extended Term is terminated pursuant to Section 7(a) or 7(b),or modified or
terminated by mutual written consent of the parties. Following the expiration of the Initial and
Extended Terms,this Agreement shall be terminated and of no further force and effect; provided,
however, that such termination shall not affect any right or duty arising on or before such
expiration.
4. Deposit of Funds and Retention of Interest. Funds to be transferred to GHAD
pursuant to Section 2 of this Agreement shall be deposited in such account or accounts as GHAD
.may specify by written notice to County. Any and all interest earned on funds so deposited shall
be credited to and retained by GHAD, and shall not be deemed at any time to constitute funds_
credited to the County treasury.
Page 2 of 5
4
5. Hold Harmless Agreement. GHAD shall defend,indemnify, save and hold harmless
the County and its officers and employees from any and all claims, costs and liability for any
damages, injury or death arising directly or indirectly from or connected with the County's
transfer of Future M-23 Surplus to GHAD hereunder or due to or claimed or alleged to be due to
negligent or wrongful acts, errors or omissions of GHAD or any person under its control, save
and except claims or litigation arising through the County's sole negligence or willful
misconduct, and will make good to and reimburse the County for any expenditures, including
reasonable attorneys' fees, County may make by reason of such matters.
6. Cooperation in the Event of Legal or Other Challenge. In the event of any legal or
equitable action or other proceeding instituted by a third party or other governmental entity or
official challenging the validity and/or implementation of any provision of this Agreement, the
parties hereby agree to cooperate in defending said action or proceeding.
7. Default; Remedies, Termination.
(a) General Provisions. The failure or delay by either party to perform any term or
provision of this Agreement for a period of 90 calendar days after written notice thereof from the
other party shall constitute a default under this.Agreement. Said notice shall specify the nature of
the alleged default and the manner in which said default may be satisfactorily cured.
After notice and expiration of such 90-day period without cure, the other party, at
.its option, may in addition to all other rights and remedies provided herein or under applicable
law,terminate this Agreement by delivery of written notice of termination to the defaulting party,
or institute legal action to cure, correct or remedy any default, enforce any covenant or agreement
herein, enjoin any threatened or attempted violation or enforce by specific performance the
obligations and rights of the parties hereto.
(b)Termination of Extended Term. The Extended Term of this Agreement may
be terminated by either party without cause, effective July 1 of the next succeeding fiscal year,
provided that such party give written notice of such termination to the other party at least 180
days prior to said date.
8. Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
9. General.
(a)If any term,provision,covenant or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of
this Agreement shall continue in full force and effect.
(b)Each party shall execute and deliver to the other all such further instruments
and documents as may reasonably be necessary to carry out this Agreement in order to provide
and secure to the other party the full and complete enjoyment of its rights and privileges
hereunder.
Page 3 of 5
10. Notices. Any notice or communication required hereunder between County and
GHAD must be in writing, and may be given either personally or by registered or certified mail,
return receipt requested. If given by registered or certified mail,the same shall be deemed to
have been given and received on the first to occur of(i) actual receipt by any of the addressees
designated below as the party to whom notices are to be sent, or(ii) 5 days after a registered or
certified letter containing such notice,properly addressed, with postage prepaid, is deposited in
the United States mail. If personally delivered, a notice shall be deemed to have been given
when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving
10 days' written notice,to the other party hereto, designate any other address in substitution of the
address to which such notice or communication shall be given. Such notices or communications
shall be given to the parties at their addresses set forth below:
If to County:
Contra Costa County
Public Works Director
255 Glacier Drive
Martinez, CA 94553
If to GHAD: .
Blackhawk GHAD General Manager
5 Blackhawk Plaza Circle, Suite 103
Danville, CA 94506
11. Counterparts. This Agreement may be executed in duplicate original counterparts,
each of which shall be deemed to be an original, and all of which shall be deemed to constitute
one and the same agreement. This Agreement consists of five pages and one exhibit which
constitute the entire understanding and agreement of the parties. Said exhibit is incorporated
(Remainder of page intentionally left blank)
Page 4 of 5
7 .
u b
herein as if set forth in full, is made a part hereof for all purposes and is identified as follows:
Exhibit A: Map entitled"Drainage Maintenance Responsibility—Blackhawk CSA M-
23, GHAD and Homeowners Associations last revised on June 11,2007"
showing the drainage facilities to be maintained by County(CSA M-23)
and CHAD.
IN WITNESS WHEREOF, County and GHAD have each executed this Agreement as of
the Effective Date.
"County" "GRAD"
COUNTY OF CONTRA COSTA, Blackhawk Geologic Hazard
a political subdivision of the State o fomia, Abatement District
on behalf of County Service Area -2
By: � By: \A'11\ „
Chair, of Supervisors or Chair, Board f Supervisors, as Chair,
Designee Board of Directors of Blackhawk Geologic
Hazard Abatement District, or designee
Approved as to Form:
Silvano B. Marchesi
County Counsel
By:
eputy
ATTEST: Clerk of the Board of Supervisors
and County Administrator
By:
Deputy
HAGHAD\Blackhawk\Storm Drain Reimburse.Docs\1986 funding agt amend Lwpd
Page 5 of 5