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HomeMy WebLinkAboutMINUTES - 06221993 - 1.26 TO: BOARD OF SUPERVISORS FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR DATE: June 22, 19931 SUBJECT: APPROVAL OF MANAGEMENT AGREEMENT BETWEEN THE COUNTY AND THE BLACKHAWK ROAD PARK COMMITTEE SPECIFIC REQUEST(S) OR RECOMMENDATION(S) &BACKGROUND AND JUSTIFICATION I. Recommended Action: AUTHORIZE the Chair to execute the Management Agreement between the County and the Blackhawk Road Park Committee for the maintenance of the Blackhawk Road Park. II. Financial Impact: The Agreement provides for the expenditure of$125,000 for fiscal year 1993/94 and $125,000 for fiscal year $1994/95. Funds for this Agreement are available from tax revenues from County Service Area I'M-23. III. Reasons for Recommendations and Background- The various Blackhawk Homeowners Associations and Business Corporations who pay taxes into County Service Area M-23 had requested that they have more input and control of funds spent to maintain and repair the landscaping along Blackhawk Road. The Board on October 22, 1991, took action lto respond to their request by declaring the landscape area within the Blackhawk Road right of way a park. The Park Committee will determine what maintenance and repair work they want done and in what order. They will hire a contractor, inspect the work being done and approve progress payments to be made. The County will administer the funds and make payments directly to the contractor. t Continued on Attachment: X SIGNATURE: IL _ RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE _APPROVE _ OTHER SIGNATURE(S): ACTION OF BOARD ON JUN 2 2 1993 APPROVED AS RECOMMENDED OTHER _ r VOTE OF SUPERVISORS _ UNANIMOUS (ABSENT ) AYES: NOES: ABSENT: ABSTAIN: I hereby certify that this is A true and correct copy of an action taken and entered on the minutes of true MEM:Iv Board of Supery on the date shown. c:BO\22.t6 2 2 1993 ATTESTED: !� PHIL BATCHELOR,Clerk of the Board Orifi. Div: Public Works(ADMIN); Contact: Maurice Mitchell (510)!'313-2303 of Supervisors and Cou Administrator cc: County Administrator .- County Auditor/Controller By .Deputy County Counsel PW-Accounting Jean Bastes and Associates ', Management Agmt. - Blackhawk Road Park June 22, 1993 Page Two The Board on June 16, 1992, approved a similar agreement with the Park Committee for Fiscal Years 1991/92 and 1992/93. This new Agreement is a continuation of the previous Agreement. IV. Conseguences> of Negative Action: If this Agreement is not approved, the maintenance and repair work will not be done in the manner desired by those who are providing the funds. MANAGEMENT AGREEMENT BLACKHAWK ROAD PARK 1.. Parties. The County of Contra Costa, for and on behalf of County Service Area M-23, a political subdivision of the State of California, parry of the first part (referred to as "County"); and Hidden Oak at Blackhawk H.O.A., Inc., a California corporation; Blackhawk Country Club, a California corporation; Saddleback at Blackhawk Association, Inc., a California corporation; Country Club at Blackhawk Improvement Association, Inc., a California corporation; Silver Oak Townhomes Association, Inc., a California corporation; Blackhawk Corporation, a Delaware corporation; and Blackhawk Community Owners Association, Inc., a California Corporation; parties of.the second part (referred to collectively as "Committee"); mutually agree and promise as follows: 2. Term. The effective date of this Agreement is July 1, 1993 and it terminates June 30, 1995, unless sooner terminated as provided herein, subject to all terms, conditions, and assurances contained or incorporated herein. 3. Payment Limit. County's (i.e. County Service Area M-23) total payments under this Agreement shall not exceed $125,000 for fiscal year 1993/94 and $125,000 for fiscal year 1994/95. Should the entire $125,000 for fiscal year 1993/94 not be paid during that fiscal year, the unpaid portion may be carried forward and paid during fiscal year 1994/95. Any unpaid funds from the previous Agreement approved by the Board of Supervisors on.lune 16, 1992 and its amendment approved on March 16, 1993, may be carried forward and paid during fiscal year 1993/94. 4. County's Obligation. County may make those allocation payments directly to the contractor's and consultants described in the"Payment Provisions"attached hereto as Exhibit A which are incorporated herein by reference, subject to all terms, conditions, and assurances contained or incorporated herein. Committee acknowledges that such payments shall discharge County's financial obligation under this Agreement, as set forth in Section 3. 5. Committee's Obligation. Committee shall contract in writing with one or more licensed contractors to install, operate, repair and maintain the facilities as described in the Service Plan attached hereto as Exhibit B, which is incorporated :herein by reference, subject to all the terms, conditions and assurances contained or incorporated herein. In addition, Committee shall perform inspection, contract administration and other related services in connection with the work just described, and may, at its option, contract in writing with one or more qualified consultants.to perform these services. 6. Compliance with Laws. Committee, its contractors and consultants shall be subject to and comply with all federal, state and local laws and regulations applicable with respect to the work and services covered by this Agreement, including but not limited to licensing, employment and purchasing practices, wages, hours'and conditions of employment, and provisions of the Labor Code applicable to this type of work on public property. 7. Inspection. Committee's performance and records pertaining to this Agreement are subject to monitoring, inspection, review and audit by authorized representatives of the County, the State of California, and the United States Government. 8. Records. Committee shall require the Contractor to keep and make available for inspection by authorized representatives of the County, the State of California, and the United States Government,the Contractor's regular business records and such additional records pertaining to this Agreement as may be required by the County. 9. Retention of Records. The Committee and County agree to retain all documents pertaining to this Contract for three years from the date of submission of Committee's final payment demand or final Cost Report (whichever is 'later) under this Agreement. Upon request, Committee shall, at no additional charge and without restriction as to use, make these documents available to authorized representatives of the County,the State of California, and the United States Government. 10. Termination. a. Written Notice. This Agreement may be terminated by either party, at its sole discretion, upon forty-five day advance written notice thereof to the other, or canceled immediately by written mutual consent. b. Failure'to Provide Insurance. Should Committee's members,contractors or consultants fail to provide the insurance described in Section 21, or should. the insurance lapse or be canceled for any reason, this Agreement shall terminate immediately without notice from County to Committee. C. Other Remedies. In the event Committee breaches this Agreement, County shall not be limited to the provisions.of this section, but shall have the right to any other remedies provided by law or equity. 11. Entire Agreement. This Agreement contains all the terms and conditions agreed upon by the parties (including payment provisions and operation schedule). Except as expressly provided herein, no other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. 12. Further Saecifications for Operating Procedures. Detailed specifications of operating procedures and budgets required by this Agreement, including, but not limited to, monitoring, billing, or regulatory changes, may be developed and set forth in written Informal Agreements entered between the Committee and the County. Such Informal Agreements shall be designated as such and shall not be amendments to this Agreement except to the extent that they further detail or clarify that which is already required hereunder. Such Informal Agreements may not enlarge in any manner. the scope of this Agreement, including any sums of money to be paid to the Committee's Contractor as provided herein. Informal Agreements may be approved and signed by the Public Works Director or his designee. 13. Modifications and Amendments. a. General Amendments. This Contract may be modified or amended by a written document executed by the Committee and the Contra Costa County Board of Supervisors or, after Board approval, by its designee. b. Administrative Amendments. Subject to the Payment Limit, the Payment Provisions and the Service Plan may be amended by a written administrative amendment executed by the Committee and the County Administrator or his designee, provided that such administrative amendments may not materially change the Payment Provisions or the Service Plan. 14. Choice of Law and Personal Jurisdiction. a. This contract is made in Contra Costa County and shall be governed and construed in accordance with the laws of the State of California. b. Any action relating to this Contract shall be instituted and prosecuted in the courts of Contra Costa County. 15. Conformance .with Federal and State Regulations. Should Federal or State regulations touching upon the subject of this Contract be adopted or revised during the term hereof, this Agreement shall be amended to assure conformance with such Federal or State requirements. i 16. No Waiver by County. Inspections, approvals, or statements by any officer, agent or employee of the County indicating the Committee's performance or any part thereof complies with the requirements of this Agreement, or acceptance of the whole or any part of said performance, or payments therefore, or any combination of these acts, shall not relieve the Committee's obligation to fulfill this Agreement as prescribed; nor shall the County be thereby stopped from bringing any action for damages or enforcement arising from any failure to comply with any of the terms and conditions hereof.. 17. Independent Contractor Status. This Agreement is by and between two independent entities and is not intended to and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture or association. 18. Conflicts of Interest. Committee promises and attests that the Committee and any members of its governing body, and any contractors or consultants hired by the Committee, shall avoid any actual or potential conflicts of interest. Committee agrees to furnish to the County upon demand a valid copy of its most recently' adopted bylaws and also a complete and accurate list of its Committee Members (Board of Directors or Trustees) and to timely update said bylaws or the'list of its Committee Members as changes in such governance occur. 19. Nondiscriminatory Services. Committee agrees that all facilities and services under this Agreement shall be available to all qualified persons regardless of age, sex, race, religion, color, national origin, or ethnic background. 20. Indemnification. Committee shall require its Contractor to defend, indemnify, save and hold harmless County and its officers, agents and employees from any and all claims, costs and liability for any damages, injury or death arising directly or indirectly from or connected the work or services described herein and due to or claimed or alleged to be due to negligent or wrongful acts, errors or omissions of Committee, its members, officers, employees, agents, contractors, consultants or any person under its control,save and except claims or litigation arising through the sole negligence or sole willful misconduct of County, and will make good to and reimburse County for any expenditures, including reasonable attorneys fees, County may make by reason of such matters and, if requested by County, will defend any such suits at the sole cost and expense of the Committee's Contractor. 21. Insurance and Bonds. a. During the entire term of this Agreement and any extension or modification thereof, each of Committee's Contractors or,Consultants shall, at no expense to County, keep in effect insurance policies meeting the following insurance requirements: } Liability Insurance - policies of comprehensive general liability insurance, including contractual liability (or blanket contractual) coverage, broad form property damage coverage and coverage for owned and non-owned vehicles, naming County and its officers, agents and employees as additional insureds, with such coverages and limits as may reasonably be requested by County from time to time, but in no event with a combined single Gmit coverage of less than $500,000 for all damages due to bodily injury, sickness or disease, or death to any person, and damage to or destruction of property, including the loss of use thereof, arising from each accident or occurrence; and Workers' Compensation Insurance - policies of workers' compensation insurance in compliance with state law. b. The policies shall include a provision for 30 days' written notice to County before lapse, cancellation or material change of the above- specified'coverage. Said policies shall constitute primary insurance as to the County and its officers, agents and employees, so that other insurance policies or self-insurance held by the County shall not be required to contribute to any loss covered under said policies. Before any work or services are performed under this Agreement, Committee shall provide County with certificates of insurance evidencing the above- described insurance and requiring 30 days' written notice to County of policy lapse, cancellation or material change in coverage. C. Before allowing any contractor or consultant to perform work or services covered by this Agreement, committee shall require the contractor or consultant to provide written indemnification and insurance meeting the requirements of subsections, a, b and c, shall furnish evidence of such indemnification and insurance to County, and shall obtain the County's approval. Committee shall be responsible for ensuring that each contractor or consultant performing work or services for Committee under ,this Agreement maintains the required indemnification and insurance in effect during the entire time that the work or services are being performed. d. Before allowing any contractor to perform work covered by this Agreement, Committee shall require the contractor to provide a payment bond to guarantee payment of all labor and materials used in the work, shall submit the bond to County for approval. The bond shall be issued by the surety admitted in the State of California, shall be in a form acceptable to County and shall name Committee and- County as co- obligees. Committee shall be responsible for ensuring that this requirement is complied with. 22. Notices. All notices and reports provided for by this Agreement shall be in writing and may be delivered by deposit in the United States mail, postage prepaid. Notices to the County shall be addressed to the Public Works Director, 255 Glacier Drive, Martinez, CA 94553. Notices to the Committee shall be addressed to the following address: Jean Bates & Associates, Inc., 3840 Blackhawk Road, Suite 120, Danville, CA 94506. The effective date of notice shall be the date of deposit in the mails or other delivery. 23. Nonrenewal Committee understands and agrees that there is no representation, implication, or understanding that the services provided by the Committee under this Agreement will be purchased by County under a new contract following expiration or termination of this Agreement, and waives all rights or claims to notice or hearing respecting any failure to continue purchase of all or any such services from Committee. 24. Waste, Quiet Conduct. Committee shall not commit, or suffer to be committed, any waste upon the facilities, or any nuisance or other act or thing which may disturb the quiet enjoyment of the use of the surrounding property. 25. Use of the Premises. Blackhawk Road Park and the facilities described in Exhibit B shall be used during the term of this Agreement for the exclusive purpose of installing, operating and maintaining thereon landscaping, irrigation systems andrelated appurtenances for the use and benefit of residents of County Service Area M-23. 26. Subcontracting and Assignment. Committee shall not assign this Agreement or any interest therein, and shall not enter into contracts exceeding $125,000 in one fiscal year (July 1 st through June 30th), except as provided for in Paragraph 3,for any work or services contemplated under this Agreement. The terms and conditions of this Agreement shall extend to, be binding upon and inure to the benefit of the successors, representatives and assigns of the respective parties hereto. 27. Counterparts: This Agreement may be executed in one or more counterparts, which shall constitute a single agreement, when executed by all of the parties named below. 28. Committee Member Autonomy. Nothing in this Agreement shall be construed in a way that would limit the rights of the individual entities comprising the Committee to improve and maintain, at their own discretion, expense and liability, privately-owned property (e.g., common areas) located within County Service Area M-23, so long as no monies paid under this Agreement are used for such purpose. MEM:IV c:b1khwk-2.agm (June 8, 1993) Signatures. These signatures attest the parties' Agreement hereto: COUNTY OF CONTRA COSTA,CALIFORNIA COMMITTEE Hidden Oak at Blackhawk H.O.A., Inc., A C Corporation By P IU (D ' nat ici Capacity in Organi tion) By -� 1 Chair, Board of Supervisors B (D ignate Official Capacity in rganization) ATTEST: Phil Batchelor; Clerk of the Board of Supervisors and County Administrator Blackhawk Country Club, A California Corporation By .�� e ��� Deputy By (Desig a Offi aci in dr ' ati /�.w. Recommended for Approval: By J.Michael Walford (Designate Offic' Capacity in Organization) Public Works Director By '�—''� _ -^ ----� Saddleback at Blackhawk Association, Inc., A California Corporation Form Approved: County Counsel By s0 Victor J. Westman ( esignate Official Capacity in Organization) By By i Deputy (Designate Official Cal5acity in Organization) Country Club at Blackhawk Improvement Association, Inc., A California Corporation BY (Designate Official Capac' in Organization) gnate Official Ca acity in Organization) Silver Oak Townhomes Association, Inc., A California Corporat n BY (DAigOeUffificial Capacity in Organization) (Designate Official apacity in O nization) s Blackhawk Corporat' n, A WiE. o orat ByBehring (Designate Offs ial Capacity in Organization) By LLIOT D. STEIN (Designate bfficial Capacity in Organization) Blackhawk Community Owners Associatii , Inc. A California Co oration By STEPHEN P. BEINKE (Designs Official Capacity in Organization) B OJ KSON CHIH (D agnate Official Capacity in Organization) Note to Committee: For ;corporations, the contract must be signed by two officers. The first. signature must be that of the chairperson of the board, president or vice-president; the second signature must be that ofi the secretary, assistant secretary, chief financial officer or assistant treasure. (Civil Code, Section 1190 and Corporations Code, Section 313.) The acknowledgement below must be signed by a Notary Public. ------------------------------------------------------ 'CERTIFICATE OF ACKNOWLEDGEMENT State of California ) ss. County of CONTRA COSTA On the date written below,, before me, the undersigned Notary Public, personally appeared the person(s) signing above for Committee personally known to me (or proved to me on the basis of satisfactory evidence(to be the persons) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Dated: JUNE 30, 1993 [Notary's Seal] OFFER NNOGENDORN TA TAar nsuccA�aaNu CONTRA COS1ACOI IM WcowS90"'arvaS,I' Not (P/Ublic VICKI H RN PAYMENT PROVISIONS 1. Payment Amounts. Subject to the Payment Limit listed in Section 3 of the Agreement, and subject to the following Payment Provisions, County will pay monthly, directly to Committee's contractors and consultants, an amount equal to Committee's approved costs that are actually incurred each month. 2. Payment Demands. Committee shall submit invoices monthly for payment. Committee shall submit said invoices for payment for work or services rendered no later than 30 days from the end of the month in which said work or services are actually rendered. Each invoice submitted by the Committee shall describe in detail the work or services rendered, the location(s) at which work or services were performed and the date(s) on which work or services was performed. Upon determination by the Public Works Director or designee that the work or services listed in the invoice have been completed in compliance with all requirements of the Agreement and that the invoice is approved for payment, County will make payment as specified in Paragraph 1. 3. Right to Withhold. County has the right to withhold payment to when, in the opinion of the County expressed in writing to the Committee (a) the Assignee performance, in whole or in part, either has not been carried out or is insufficiently documented, (b) the Committee has neglected, failed or refused to furnish information or to cooperate with any inspection, review or audit of its program, work or records, or (c) Committee has failed to sufficiently itemize or document its demand(s) payment. 4. Audit Exceptions. Committee agrees to accept responsibility for receiving, replying to, and/or complying with any audit exceptions by appropriate County, State, or Federal audit agencies occurring as a result of its performance of this Contract. Committee also agrees to pay to the County within 30 days of demand by County the full amount of the County's liability, if any,to the State and/or Federal government resulting from any audit exceptions,to the extent such are attributable to the Committee's failure to perform properly any of its obligations under this Agreement. 5. Annual Report. Committee shall deliver to the County an annual report of its activities hereunder, including an annual audit report that conforms to generally accepted auditing standards prepared ;by a certified public accountant or public accountant showing in detail the gross annual receipts and disbursements hereunder. The report shall describe all funds and revenues disbursed by County for Committee's operation of the facilities and concessions described in this Agreement. EXHIBIT "A" SERVICE PLAN Committee shall cause to be installed, operated, repaired and maintained within Blackhawk Road Park, landscaping, irrigation systems and other related appurtenances (referred to as the"facilities"), as provided in Resolution No. 91/704 adopted by the Contra Costa County Board of Supervisors on October 22, 1991. SPECIAL CONDITIONS 1. The Committee shall provide written monthly reports to Contra Costa County which include a narrative regarding the activities of the previous month and a financial accounting. 2. On or before April 1st of each year, the Committee shall provide a fist of proposed expenditure to the County for consideration in the annual budget process for the upcoming fiscal year. County'sconsideration of the budget and list shall not in any way obligate County to continue or renew this Agreement. EXHIBIT "B"