PARK MAINTENANCE AGREEMENT
This Park Maintenance Agreement ("Agreement") is made and entered into this 27'h day of October, 2020 by and between the City of Barstow, a Municipal Corporation hereinafter referred to as • "CITY", and the Barstow Heights Community Service District, a Special District organized and operating under the provisions of Division 3, Title 6 of the Government Code of the State of California (commencing with section 61000) hereinafter referred to as "DISTRICT" and collectively referred to herein as the "parties".
RECITALS
WHEREAS, DISTRICT is a special district for the purpose of providing all public services within its jurisdictional limits as authorized by law, specifically including public recreation; WHEREAS, DISTRICT owns certain park lands which are legally described in Exhibit "A", attached hereto and incorporated by reference herein, and commonly referred to as Barstow Heights Park, with an address of 34574 H Street, Barstow, CA, and Panamint Park, with an address of 34074 K Street, Barstow, CA, collectively referred to as the "PARKS":
WHEREAS, the PARKS are located within the County of San Bernardino and within the legal boundaries of DISTRICT, subject to rights-of-way and easements for public utilities, water companies, alleys and streets and covenants, conditions and restriction now of record; WHEREAS, the Barstow Parks and Recreation District, a special district, included within its boundaries CITY as well as DISTRICT and the PARKS and received property taxes from all properties within its boundaries to be used for providing park services; WHEREAS, in 1999, the DISTRICT and the Barstow Parks and Recreation District entered into an agreement whereby the Barstow Parks and Recreation District would provide certain maintenance of the PARKS, with said agreement expiring October 2010;
WHEREAS, in 2004, the Barstow Parks and Recreation District was merged with CITY, and CITY, among other things, assumed all existing contractual obligations of the Barstow Parks and Recreation District as well as to continue to provide the current level of range of services provided by the Parks and Recreation District including those areas outside CITY which were park of the Parks and Recreation District boundaries;
WHEREAS, upon dissolution of the former Barstow Parks and Recreation District, CITY was allocated the share of property taxes from all properties within the boundaries of the former Parks and Recreation District, including DISTRICT;
WHEREAS, the parties wish to update the existing maintenance agreement and continue to provide for ongoing maintenance of the PARKS by CITY for use as community parks serving the residents of the DISTRICT.
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, and for other valuable consideration which is hereby acknowledged, CITY and DISTRICT hereby agree as follows:
1. TERM.
a. The term of this Agreement shall commence at 12:00 a.m. on the October 27, 2020 and shall expire at 11:59 p.m. on October 27, 2025, unless extended by written agreement of the parties.
b. Either party may renew this Agreement for a period not to exceed five (5) years on similar or modified terms. If either party wishes to extend this Agreement, it shall submit written notice to extend this Agreement no later than sixty (60) days prior to the expiration of this Agreement. Such extension shall be made by written agreement and approved by the parties' respective governing bodies.
2. SCOPE OF MAINTENANCE.
a. CITY shall provide the following scope of maintenance of the PARKS as described below:
i. Litter Control: Remove litter from any sidewalks, curbs, gutters, and landscaped areas of the PARKS
ii. Landscape Maintenance: Mow lawns, remove weeds, and see and fertilize lawn in the PARKS as CITY deems necessary. Removal of trash in and around the PARKS, and the emptying of trash cans located in the PARKS
ili. Tree Maintenance: Minor tree trimming involving the cutting of overgrown or dead leaves and branches, but does not include the removal of trees. iv. Restroom Maintenance: Cleaning of bathroom, bathroom stalls, floors, sinks and counters, restocking paper towels and sanitary paper and emptying trash cans.
v. Any other repair or maintenance valued at $1,000 per Park per month (not to exceed $500 per occurrence) or less shall be the responsibility of the CITY.
vi. Utilities: The CITY agrees to obtain, in its name, water and electricity needed for the operation of the PARKS and to pay all costs incurred as a result thereof. DISTRICT shall not be responsible for the cost of constructing or replacing any equipment or infrastructure to provide such utilities, including but not limited to light poles, plumbing, drainage system, which will service the PARKS.
b. The DISTRICT will be responsible for:
i. Maintenance, repair or replacement of any existing security cameras and the installation of any additional security cameras in the PARKS; ii. Any other Maintenance, repair or replacement in excess of $1000 per Park including but not limited to capital improvement projects such as major plumbing or electrical work, replacing playground equipment, replacing chips under playground equipment and replacing picnic tables and benches;
ili. Insurance. CITY, its elected and appointed officials and employees shall be endorsed as an additional insured under any general liability policy.
3. ACCESS.
By this Agreement, DISTRICT grants to CITY, and CITY's employees, contractors and agents, unrestricted and unlimited entry onto the PARKS' property to provide the scope of maintenance as described in Section 2 of this Agreement or for any other purposes necessary to carry out the terms of this Agreement. DISTRICT shall indemnify, defend and hold CITY, and CITY's officers, employees and agents harmless from and against any claims, injuries or damages arising out of or involving any such entry onto the PARKS or activities as provided in Section 2 of this Agreement. The right of entry shall be effective during the term of this Agreement.
4. SAFETY
CITY shall perform the scope of maintenance in accordance with established safety standards. The parties shall meet periodically to discuss the use of the PARKS in accordance with this Agreement.
5. INDEMNIFICATION.
a. To the fullest extent permitted by law, DISTRICT shall indemnity, hold harmless, and detend CITY, its officers, agents, employees and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, and injury to any property arising out of or in connection with DISTRICT's alleged negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of DISTRICT or any its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either DISTRICT or its subcontractors, in the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement. Such costs and expenses shall include reasonable attorneys' fee due to counsel of CITY's choice, expert fees and all other costs and fees of litigation. b. To the fullest extent permitted by the law, CITY shall indemnify, hold harmless, and defend DISTRICT, its officers, agents, employees and volunteers from and against any and all claims or losses, costs or expenses for any damage due to death or injury to any person, whether physical, emotional, consequential or . otherwise, and injury to any property arising out of or in connection with CITY's negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of CITY or any of its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either CITY or its subcontractors, in the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement. Such costs and expenses shall include reasonable attorneys' fees due to counsel of DISTRICT's choice, expert fees and all other costs and fees of litigation.
6. NOTICE.
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier services during CITY's and DISTRICT's regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).
If to CITY: If to DISTRICT:
City of Barstow Barstow Heights Community Services
District
Attention: City Manager ATTN: General Manager
220 E. Mt. View Street, Ste. A P.O. Box 1290
Telephone: (760)256-3531 Barstow, CA 92312-1290
Facsimile: (760) 256-4472
With courtesy copy to:
Teresa L. Highsmith
City Attorney
Colantuono, Highsmith & Whatley, PC
790 E. Colorado Blvd, Suite 850
Pasadena, CA 91011
Telephone: (213) 542-5700
7. MISCELLANEOUS PROVISIONS.
a. Assignment. DISTRICT shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without the CITY's prior • written consent, and any attempt to do so shall be void and of not effect. CITY shall not be obligated or liable under this Agreement to any party other than DISTRICT.
b. Captions. The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this Agreement. Should be any conflict between such heading, and the section or paragraph thereof, as the case may be, and not such heading, shall control and govern in the construction of this Agreement. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein which the context requires such substitution(s). c. Waiver. The waiver by CITY or DISTRICT of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent breach of the same or any other term covenant or condition herein contained. No term, covenant or condition of this Agreement shall be deemed to have been waived by CITY or DISTRICT, unless in writing.
d. Cumulative Rights. Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter exiting in law, in equity, by statute; or otherwise. The exercise, the commencement of the exercise, or the forbearance of the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any of all of such other rights, powers or remedies.
e. Mediation. In the event legal action shall be necessary to enforce any term, covenant or condition herein contained, the parties agree to first submit the dispute to mediation, unless the parties agree in writing to submit the dispute to binding arbitration in accordance with Section 7(f). After one party serves on the other party a written request for mediator, a mediator shall be selected by the parties within 20 business days from the date of the written request for mediation.
Each party shall select one mediator and the two mediators chosen by each party shall select a third mediator who shall mediate the dispute. Any fees incurred for the mediation shall be shared equally between the parties. If any party is dissatisfied with the results of mediation, that party may tender a written request for binding arbitration as set forth in Section 7(f) within 20 business days from the date of the last mediation session.
f. Binding Arbitration. The parties shall arbitrate any dispute concerning this Agreement not earlier resolved by mediation or as otherwise agreed to by the parties. The arbitration proceedings shall be binding, and shall be conducted before one arbitrator pursuant to the commercial arbitration rules of the American Arbitration Association. The costs of the arbitration shall be shared equally by the parties. If the parties are unable to agree to an arbitrator, then each party shall name an arbitrator and the two arbitrators shall then select a third arbitrator who shall preside over the arbitration. The arbitrator's decision shall be final and non- appealable and judgement shall be entered in any court having jurisdiction. The party prevailing in such arbitration shall be entitled to its reasonable costs, including accountants' and expert's fees, if any, and attorneys' fees expended in such arbitration.
g. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, to invalid or unenforceable, then such term or provision shall be amended to, and solely to, the extent necessary to cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
h. Exhibits. All documents reference as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any i document incorporated herein by reference the provisions of this Agreement shall prevail:
i. Governing Law, Venue. This Agreement shall be governed and construed in accordance with the laws of the State of California. The venue for any arbitration or mediation shall be Barstow, California.
i. Integration; Amendments. This instrument contains the entire agreement between parties with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties. Any prior maintenance agreements between the parties are terminated by this Agreement.
Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed by both parties.
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representative to execute this Agreement.
"CITY" "DISTRICT"
City of Barstow Barstow Heights Community
Services District
'By
ulie Hackbarth-Mcintyre, Mayor Robert Stapp, Presider
Attest:
alane V. Consino, Ame :
SoĂnne V. Cousino, City Clerk
Approved as to form:
By
Teresa L. Highsmith, City Attorney
SEPT. 30, 1947
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representative to execute this Agreement:
"CITY" "DISTRICT"
City of Barstow: Barstow Heights Community
Services District
: S 'By.
blie Hackbarth-Mclntyre, Mayor Robert Stapp; President
Attest
liline V. Concio, One
By-
JoAnne V. Cousino: City Clerk
Approved as to form:
sues font
By.
Teresa; L: Highsmith, City: Attorney:
CAN OF BARSTON CORPORATE®
SEPT. 30, 1947-
EXHIBIT A
• LEGAL DESCRIPTION
Barstow Heights Park, 24574 H.Street, Barstow, CA 92311 APN: 0427-411-23-0000
Legally Described as:
ELY 165 FT LOT 97 SEC 11 TP 9N R 2W EX NLY 123 FT THEREOF AND EX FLY 50 FT THEREOF AND EX MNL RTS RESERVATION OF RECORD AND EX ST PER 3-20-89 #89- 098580
Panamint Park, 34074 K Street, Barstow, CA 92311
APN: 0427-341-07-0000
Legally Described as:
NE 1/4 NW 1/4 NW 1/4 SE 1/4 SEC 14 TP 9N R 2W EX ST PER 3-20-89 #89-098580 City of Barstow Oct 19, 2020 7:00 PM Approved
THE CITY California
o BARSTOW
CROTROADI DE DEFORTUNITA
Agenda Item
4345
Approval of Contract, with Barstow Heights Community Service District to Provide Park Maintenance Services
Information
Department: Parks and Recreation Sponsors:
Category: Contract
Attachments
Printout
PARK MAINTENANCE AGREEMENT_2020_New
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Fiscal Impact
None, since no additional appropriation is needed. Cost incurred with this agreement are offset by property taxes received as part of the absorption of the Park District by the City.
Executive Summary
When the City absorbed the Barstow Parks and Recreation District, it had an existing contract with the Barstow Heights Community Services District (CSD) to provide maintenance services for Panamint Park and Barstow Heights Park. The new contract includes an increase to the repair and maintenance cost responsibility, all other provisions of the new contract remain unchanged
Discussion
In July, 2004, the City of Barstow absorbed the Barstow Parks and Recreation District which included a contract with the Barstow Heights Community Services District (CSD) to provide park maintenance services at the CSD's two parks in Barstow Heights, Panamint and Barstow Heights Park. The City continues to honor the five year extension of this contract which expires this month (See attached.) When the City took over the Park District it began receiving the property taxes collected from Barstow Heights which are designated for parks and covers the services being provided. Per the agreement City staff mows, reseeds and fertilizes the grass, trims vegetation, cleans and stocks restrooms, empties trash containers, etc.
The contract states that any repairs costing more than $1,000 per park, per month, $500 per incident, will be paid for by the Barstow Heights CSD. (This includes items such as new playground equipment, video camera systems, etc. which are not covered by the City.) The previous maximum repair was $200 per incident, which with inflation and increasingly more restrictive safety and conservation regulations, impacted staffs ability to perform the repairs in a timely and cost effective manner.
With input from the Barstow Heights CSD Board and City staff, the City attorney has prepared the attached contract. There are no significant changes between the prior contract and the proposed contract. The new contract has a term of five years with the option of a five year extension.
Recommended Action
Approve the contract with Barstow Heights Community Services District Meeting History
Council Sur/BFPD Joint Special & Draft
Oct 19, 2020 7:00 PM Video
. PARKS AND RECREATION SUPERINTENDENT KYLE WOOLLEY
Explained this is a longer older contract and they are trying to do is shorter the term so they can adjust the rate ar ‹pand the amount that the city is allow to expend on repairs, primarily emergency repair COUNCIL MEMBER SILVA •
- Asked clarification on the expenditure limits.
PARKS AND RECREATION SUPERINTENDENT KYLE WOOLLEY
- Explained if expenditures go over $1000.00 per park per month or $500 per occurrence then District incurr the cost.
MAYOR PRO TEM HERNANDEZ
- Thanked Mr. Woolley for bringing this item.
ASSISTANT CITY MANAGER PROTHRO
- Stated this is also saving the city money on labor.
RESULT: APPROVED [UNANIMOUS]
MOVER: James M. Noble, Council Member
SECONDER: Timothy Silva, Council Member
AYES: James M. Noble, Carmen Hernandez, Timothy Silva, Julie Hackbarth-Mcintyre