HomeMy WebLinkAboutMINUTES - 04242007 - C.8 - I Sti -t
TC. BOARD OF SUPERVISORS ' `f
I� ��-�}��:,F: Contra
FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR
Costa C $
DATE: APRIL 24, 2007 County
SUBJECT: APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a landscape.
maintenance agreement with Shapell Industries, Inc., a Delaware Corp. to allow the
maintenance of landscape improvements within County road right-of-way for Subdivision 96-
08002, Wendt Ranch, Danville area. (District III)
SPECIFIC REQUESIYS)OR RLCOMf\,ILNDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION(S):
.APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a landscape maintenance
agreement with Shapell Industries, Inc., a Delaware Corp., to allow for the maintenance of landscape
improvements within County Road right-of way for Subdivision 96-05002, Wendt Ranch. (District III).. .
FISCAL IMPACT:
There will be no impact to the General Fund. Developer will pay for the costs of landscape maintenance.
CONTINUED ON ATTACHMENT: D SIGNATURE:
_ RECOINIMFNDATION OF COUNTY AD.NIINISI'ItATOR RECOM- IENDATION OFARTY-Ca ITTEE
APPROVE. OTHER
SIGNATITRE(S):
ACTION 01;BOARD ON 04!j� APPROVED AS RECOMMI?NDED V OTHER
\'O'I'L OF SUPERVISORS: i HEREBY CERTIFY THAT TIIIS IS A TRUF AND CORRECT
COPY 01; AN ACTION TAKEN AND ENTERED ON
_UNANIMOUS(ABSENT 'V W C/ ) MINUTES OF THE BOARD 01; SUPERVISORS ON TI IE
AYES: NOES: DATE SI TOWN.
ABSENT: ABSTAIN:
I<:I::vr.
G:\En,Svc'.BO\2007`••.04-24\BO landscape maint agree.doc t7
Contact: Kevin Emigh(313-2233) ATTESTED
JOHN CULLEN,CI_f•.RK OF THE BOARD OF
SUPERVISORS
cc: M.Shiu,Director Public Works
B.Balbas,Lngineering Services
K.Laws,Real Property
I_.Zinuncnnan,Administration BY: DEPUTY
E.GclSton,County QIUnSCI
SUBJECT: ' APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a landscape
maintenance agreement with Shapell Industries, Inc., a Delaware Corp. to allow the maintenance
of landscape improvements within County road right-of--way for Subdivision 96-08002, Wendt
Ranch, Danville area. (District III).
DATE: April 24, 2007
PAGE: 2 of 2
REASONS FOR RECOMMENDATIONS AND BACKGROUND:
On. October 10, 2000 the Board approved the annexation of Subdivision 96-08002, Wendt Ranch, into the
Countywide Landscaping and Lighting Assessment District AD 1979-3 (LL-2)-Zone 6P, to fund maintenance for
t:he landscaping along the Camino Tassajara frontage and median islands.
Tlie Developer felt they could perform the maintenance more economically and requested to be allowed to perforni
this landscape maintenance, and the landscape maintenance along the in-tract roads, with the intent of assigning
these obligations to the Wendt Rand Homeowners Association (HOA).
In the event the developer or HOA fails to maintain the Camino Tassajara frontage landscaping to the satisfaction of
the County,the assessment established by the LL-2 will go into affect and the maintenance will be done by General
Services.
CONSEQUENCES OF NEGATIVE ACTION:
If the landscape maintenance agreement is not executed, the developer will not be able to provide landscape
rnaintenance services to the development.
LANDSCAPE MAINTENANCE AGREEMENT
BY AND BETWEEN SHAPELL INDUSTRIES AND CONTRA COSTA COUNTY
This LANDSCAPE MAINTENANCE AGREEMENT ("Agreement') is
entered into on this W16 day of t/ , 2007 ("Effective Date") by and
between SHAPELL INDUSTRIES, INt., a Delaware corporation ("Shapelf') and
THE COUNTY OF CONTRA COSTA, a political subdivision of the State of
California ("County'). This Agreement is entered into with reference to the
following facts:
RECITALS
A. On October 10, 2000, the Contra Costa County Board of
Supervisors approved the annexation of Subdivision 8002 ("Wendt Ranch
Project') (the "Project Site"), to the County wide Landscaping and Lighting
Assessment District AD 1979-3 (LL-2) — Zone 68, Danville Area ("Landscape
District') to serve as a funding vehicle to maintain the landscaping for the
Camino Tassajara frontage and median islands for the Wendt Ranch Project.
For purposes of this Agreement, the Project Site and the Wendt Ranch parkway
strips constitute the "Landscaping Area," which is depicted on the map attached
as Exhibit A. In connection with the district formation, the Board of Supervisors
also ordered the imposition of an assessment on each parcel owner in
Subdivision 8002 (the "Wendt Ranch Homeowners") to fund said maintenance.
However, to date, no assessment has been levied because Shapell currently has
undertaken these maintenance obligations.
B. The Landscaping Area is within County's right-of-way.
C. The parties recognize that Shapell will be able to provide quality
maintenance at a more economical cost than County would be able to achieve
through the Landscape District, and thus desire to enter into this Agreement to
set forth the terms by which Shapell will formally assume responsibility for
maintaining the landscaping for the Landscaping Area, with the intent of
assigning these obligations to the Wendt Ranch Owners' Association, a
California non-profit mutual benefit corporation (the "HOA").
NOW, THEREFORE, Shapell and County agree as follows:
1. Maintenance Obligations. On the Effective Date, County shall
transfer and . Shapell shall assume County's landscape maintenance
responsibilities for the Landscaping Area. The parties contemplate that said
responsibilities shall include maintenance of all shrubbery, trees and ground
cover in accordance with County standard practices for the area; such
maintenance shall include, but not be limited to, fertilization, pest and weed
control, pruning, debris removal, and irrigation (including repair and payment for
all electrical and water costs related thereto) (collectively, "Maintenance
Obligations"). The Maintenance Obligations shall also be conducted utilizing
1
R'C;301GSORi.�" -
the Clean Water "Best Management Practices" pursuant to County's Clean
Water Program requirements and any applicable provisions of County's
Stormwater Management and Discharge Control Ordinance.
2. Funding to Perform Maintenance Obligations. Shapell shall
perform the Maintenance Obligations at its sole cost and expense until such time
as the HOA undertakes the Maintenance Obligations. Once undertaken, the
HOA shall perform the Maintenance Obligations at its sole cost and expense.
County shall have no right or obligation to collect funds for the payment of
Maintenance Obligations or to perform the Maintenance Obligations except in the
event that County terminates this Agreement and reassumes the Maintenance
Obligations pursuant to Section 8 below. Notwithstanding the foregoing, County
may levy an assessment on the Wendt Ranch Homeowners to cover
administrative costs of the Landscape District in accordance with applicable law.
3. Grant of License. County hereby grants to Shapell and the HOA
once it assumes the Maintenance Obligations, including their agents, employees
and contractors, permission to enter onto the Landscaping Area for the purpose
of performing the Maintenance Obligations. This permission shall continue for so
long as this Agreement is in effect. In the event that County terminates this
Agreement pursuant to Section 8 below, such permission shall terminate
concurrently.
4. Nonexclusive Right of Use. The parties acknowledge and agree
that the right to use the Landscaping Area is nonexclusive. County reserves the
right to issue leases, licenses, easements or other rights of access to others for
other purposes. Notwithstanding anything to the contrary herein, in the event
any such issuance by County impairs the ability of Shapell or the HOA (as the
case may be) to perform all or.a portion of the Maintenance Obligations, County
agrees that Shapell or the HOA (as the case may be) shall not be required to
perform the Maintenance Obligations to the extent such performance is impaired
by County's action.
5. Existing Facilities. Shapell acknowledges that County may have
existing leases, licenses, or easements with other individuals or entities ("Other
Users") with respect to all or a portion of the Landscaping Area, which may grant
certain rights to such Other Users, including the right to enter on the Landscaping
Area and to maintain their facilities. Shapell further acknowledges that such
Other Users may install or may have installed underground facilities in the
Landscaping Area. In the event and to the extent any Other Users have pre-
existing rights, any such pre-existing rights shall prevail over the rights granted
under this Agreement. Notwithstanding the foregoing, Shapell or the HOA (as
the case may be) shall not be prohibited from pursuing other available remedies
outside of this Agreement, in law or equity, to ensure that any damage caused by
any Other Users is repaired by such Other Users. At least two (2) calendar days,
but not more than fourteen (14) calendar days, prior to performing any
excavation on the Landscaping Area at a depth greater than eighteen (18) inches
2
WC'301650R5.1?
below grade, Shapell or the HOA (as the case may be) shall contact the
Underground Service Alert - Northern California ("USA") to notify USA of its
intention to perform said excavation and shall adhere to any and all requirements
imposed by USA.
6. Damage. In the event and to the extent Shapell or the HOA (as the
case may be) cause any damage to the Landscape Area in the performance of
the Maintenance Obligations, Shapell or the HOA (as the case may be) shall
repair any such damage and shall return the premises to a neat and safe
condition satisfactory to County.
7. Assignment to HOA. The parties acknowledge that this
Agreement contemplates that the HOA will eventually assume all of Shapell's
rights and obligations under this Agreement. Subject to County's termination
rights pursuant to Section 8 below, the parties agree that Shapell may, in its sole
discretion, assign all of its rights and obligations, including all indemnification
obligations under Section 9 below, in and to this Agreement to the HOA; said
assignment shall be accomplished by Shapell and the HOA entering into an
agreement in substantially the form attached as Exhibit B (the "Assignment
Agreement'). For purposes of notification, Shapell shall provide County with a
copy of the Assignment Agreement within ten (10) days of its execution. As of
the effective date of the Assignment Agreement, the HOA shall be deemed a
party to this Agreement and County shall look solely to the HOA for performance
hereunder and Shapell shall have no further rights or obligations under this
Agreement. Notwithstanding the foregoing, the Assignment Agreement shall
have no force or effect in the event any material modifications are made to the
form of assignment.
8. Discretion to Terminate. If at any time County determines, in its
sole discretion, that Shapell or the HOA (as the case 'may be) is not performing
the Maintenance Obligations pursuant to the terms of this Agreement, County
may terminate this Agreement, upon thirty (30) days' notice to Shapell or the
HOA (as the case may be). Shapell also has the right, in its sole discretion, to
terminate this Agreement at any time prior to Shapell's assignment of its
obligations under this Agreement to the HOA by providing County with thirty (30)
days' written notice thereof. In the event of termination, the parties acknowledge
that County may levy an assessment on the.Wendt Ranch Homeowners through
the Landscape District in accordance with applicable law in order to fund its
performance of the Maintenance Obligations. In the event of termination, County
shall reassume all Maintenance Obligations, including, without limitation, all
electrical and water costs associated therewith.
9. Indemnification. Shapell or the HOA (as the case may be) shall
indemnify, defend and hold harmless County, including its directors, officials,
agents, and employees, from and 'against any and all claims, suits, actions,
liabilities, damages (including, without limitation, all consequential damages) and
costs (including, without limitation, reasonable attorneys' fees) arising out of the
3
XVC!30165055.17
entry onto the Landscaping Area or the performance of the Maintenance
Obligations by Shapell or the HOA (as the case may be), and the provisions of
this Section 9-shall survive the termination of this Agreement. Notwithstanding
the foregoing and subject to the terms of the Assignment Agreement, the parties
agree that Shapell's indemnification obligations under this Section 9 shall
terminate upon the happening of both of the following events: (1) Shapell's
assignment of its rights and obligations to the HOA pursuant to Section 7 above
and notification to County thereunder, and (2) the HOA's provision to County of
satisfactory evidence of Insurance Coverage required by Section 10 hereof.
10. Insurance. Shapell, including its agents, employees and
contractors agree to obtain and maintain during the term of this Agreement,.at
no cost to County, comprehensive liability insurance with a minimum combined
single-limit coverage of One Million Dollars ($1,000,000) for all claims or losses
due to bodily injury, sickness or disease or death to any person, or damage to
property, including loss of use thereof arising out of each accident or occurrence,
and to name County, its directors, officials, agents, and employees as additional
insured thereunder (the "Insurance Coverage"). The Insurance Coverage shall
provide for a thirty (30) day written notice to County of cancellation or lapse
thereof. Evidence of Insurance Coverage shall be furnished to County prior to
execution of this Agreement. Within thirty (30) days of the HOA assuming the
Maintenance Obligations, it shall initiate the Insurance Coverage required under
this Section 10. Until such time as the HOA obtains Insurance Coverage and.
furnishes evidence to the County to that effect, Shapell shall continue its
maintenance of the Insurance Coverage required under this Section 10.
11. Entire Agreement. This Agreement contains and integrates the
entire agreement of the parties with respect to the subject matter hereof, and
supersedes all negotiations and previous agreements, if any, between the parties
with respect thereto.
12. Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of California.
13. Attorneys' Fees. In the event any legal action or proceeding is
initiated by a party hereto for enforcement of any of the terms of this Agreement,
the prevailing party in such action or proceeding shall be entitled to recover its
costs and expenses (including, without limitation, reasonable attorneys' fees)
paid or incurred in good faith. The "prevailing party" for purposes of this
Agreement, shall be deemed to be that party which obtains substantially the relief
sought, whether by dismissal, by award, or by judgment.
14. Notices. Any notice required under this Agreement shall be in
writing and personally delivered or sent by certified mail (return receipt and
postage prepaid), overnight delivery, or facsimile to the following:
4
W030165085.17
County: Contra Costa County
Public Works Department
Engineering Services
255 Glacier. Drive
Martinez, CA 94553-1290
Facsimile: (925) 313-2333
Shapell: Shapell Homes
100 N. Milpitas Blvd.
P.O. Box 361169
Milpitas, CA 95035
Attn: Chris Truebridge
Facsimile: (408) 946-4657
Copy to: Bingham McCutchen, LLP
1333 N. California Blvd., Suite 210
Walnut Creek, CA 94596
Attn: Nadia Costa
Facsimile: (925) 975-5390
Any party may change its mailing address/facsimile/contact person at any time
by giving written notice of such change to the other parties in the manner
provided herein at least ten (10) days prior to the date such change is effected.
All notices under this Agreement shall be deemed given, received, made or
communicated on the earlier of the date personal delivery is effected or on the
delivery date or attempted delivery date shown on the return receipt, air bill or
facsimile.
15. Construction. The provisions of this Agreement and the attached
exhibit shall be construed as a whole according to their common meaning and
not strictly for or against any party, and in a manner that shall achieve the
purposes of this Agreement.
16. Time Is Of The Essence. The parties agree that time is of the
essence in this Agreement.
17. Modification. This Agreement may be modified from time to time
only by mutual written consent of the parties.
5
1VCi30165035.17
County and Shapell have executed this Agreement as of the date first
written above.
CONTRA COSTA COUNTY SHAPELL INDUSTRIES, INC.,
a Delaware corporation
By: /,�zr.--�
a rice M. hiu
Its:
By:
Its:
RECOMM NDED FOR APPROVAL:
Kar Laws al PIroperty
PPROVED AS TO FORM:
Silvano . Marchesi, County Counsel
by . sc fo,
6
WC/301 esoss.i-
EXHIBIT A
Diagram of Landscaping Area
EXHIBIT "A"
vvENDT RANCH
CONTRA COSTA COUNTY, CALIFORNIA
A.P.N. 206-030-006
DECEMBER 14, 2006
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NOTE:
"LANDSCAPING AREA IS ALL THE LANDSCAPING
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PUBLIC RIGHT OF WAY AS SHOWN 04 RECORDED
4` FINAL MAPS WITHIN THIS BOUNDARY
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EXHIBIT B
Form of Assignment Agreement
EXHIBIT B
to
LANDSCAPE MAINTENANCE AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated
as of ("Effective Date"), is by and between SHAPELL INDUSTRIES, INC.,
a Delaware corporation ("Assignor") and WENDT RANCH OWNERS' ASSOCIATION, a
California non-profit mutual benefit corporation ("Assignee").
RECITAL
WHEREAS, Assignor wishes to assign, transfer, and convey to Assignee, and
Assignee wishes to receive and accept, all of Assignor's rights, obligations and interest in,
to and under that certain LANDSCAPE MAINTENANCE AGREEMENT dated ,
2007, (the "Landscape Maintenance Agreement"), by and between Assignor and the
County of Contra Costa, a political subdivision of the State of California ("County").
ACCORDINGLY, the parties agree as follows:
Section 1 Assignment of Rights and Obligations.
Assignor assigns, transfers and conveys to Assignee, as of the Effective Date, all of its
rights, obligations and interest in, to and under the Landscape Maintenance Agreement.
Assignee accepts and receives all such rights, obligations and interest in, to and under the
Landscape Maintenance Agreement.
Section 2 Assumption of Liabilities.
Assignee assumes all of the duties and obligations of Assignor hereafter accruing or arising
incident to the Landscape Maintenance Agreement. Assignee confirms that as of the
Effective Date, it shall be deemed a party to the Landscape Maintenance Agreement and
Assignee agrees to be bound by all the terms of, and to undertake all the obligations of,
Assignor contained therein.
Section 3 Exception.
Notwithstanding Section 2 above, the parties hereto agree that County shall be entitled to
pursue claims accruing or arising incident to the Landscape Maintenance Agreement on or
before the Effective Date, and all its rights and remedies related to such claims, for (a)
payments of indemnity due under the Landscape Maintenance Agreement from Assignor,
and/or (b) insurance payments or proceeds, provided, however, that Assignor's liability for
such claims shall not exceed the liability it would have incurred if the assignment had not
been made.
Section 4 Miscellaneous.
WC/30182909.3/2072272-2722720039
Each party to this Agreement shall execute and deliver such instruments, documents and
other written information and take such other actions as the other party may reasonably
require in order to carry out the intent of this Agreement. This Agreement and all the
provisions hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument. This Agreement is
made and entered into in California, and the laws of California shall govern the validity and
interpretation hereof and the performance by the parties hereto of their respective duties
and obligations.
IN WITNESS WHEREOF, the parties hereto have executed and delivered to this
Agreement as of the Effective Date.
SHAPELL INDUSTRIES, INC. WENDT RANCH OWNERS'
a Delaware corporation ASSOCIATION,
a California non-profit
mutual benefit corporation
By: By:
Its: Its:
By:
Its:
2
WC/30182909.3/2072272-2722720039