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CITY COUNCIL AGENDA ITEM NO. 05

Meeting Date:  December 12, 2000

Subject/Title:    Approval of Agreement for Contract Services with EIP Associates for Environmental Impact Report for Home Depot Project

Submitted by:   Mitch Oshinsky, AICP, Community Development Director                                 

Approved by:    Jon Elam, City Manager

RECOMMENDATION

Approve the Agreement for Contract Services with EIP Associates for Environmental Impact Report for Home Depot Project

PREVIOUS ACTION

The preceding item on this Council Agenda is for approval of an Agreement with the applicant to pay the EIR costs.  Prior to adoption of this Agreement, it is anticipated that Council would have approved that.

BACKGROUND

Eli Reinhard, President of Arcadia Development Company wishes to proceed with plans for development of a major retail commercial center, and other associated development, which may include business park and residential uses, on the southeast corner of Lone Tree Way and Heidorn Ranch Road.  Due to the size and scope of the proposal (the retail component alone comprises over 405,000 square feet of building area), it is evident to Mr. Reinhard and the City, that an Environmental Impact Report (EIR) needs to be prepared for the project.

By adoption of this Agreement, EIP Associates will prepare the EIR for the City.  The cost for the EIR is not to exceed $189,975.  Certification of the Final EIR is scheduled for late June 2001.  Adoption of this Agreement will have been preceded on the Council Agenda by adoption of an Agreement with Mr. Reinhard to fund the EIR.

EIP Associates, as a subconsultant to MIG, is currently preparing the EIR for the City’s General Plan Update.  Due to their already being on board with environmental issues in Brentwood, and their knowledge of the area, in the interest of time, the applicant and City agreed it was most efficient to sole source this EIR to EIP. 

AGREEMENT FOR CONTRACT SERVICES WITH EIP ASSOCIATES  FOR ENVIRONMENTAL IMPACT REPORT FOR HOME DEPOT PROJECT     

            PROFESSIONAL SERVICES AGREEMENT, made this 12th day of December, 2000,  between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and EIP Associates ("CONSULTANT").

                                       The CITY and CONSULTANT agree to the following:

            SECTION 1.    PURPOSE OF AGREEMENT. The CITY desires to engage a CONSULTANT to provide specific skills and technical expertise for temporary contract services within the Community Development Department.

            SECTION 2.    PERFORMANCE BY CONSULTANT.  The CONSULTANT shall undertake and prosecute the work diligently to conclusion, using that standard of care, skill and diligence normally provided by a professional person in the performance of such contract services in respect to work similar to that hereunder as follows:

a.         Commence work immediately after:  CONSULTANT's receipt of a verbal or written notice to proceed from the Community Development Director or authorized staff personnel, but no sooner than City Council approval of this Agreement.

b.        The CONSULTANT shall perform any and all work needed to complete the tasks outlined in the CONSULTANT’S Proposal attached as Exhibit “A” and incorporated herein by reference, and which shall serve as the Scope of Work for the Environmental Impact Report (EIR) for the Home Depot project, except as the Scope may be amended by mutual written agreement of the Community Development Director and authorized CONSULTANT representative.

c.         The CONSULTANT shall complete the work mutually agreed upon within the time frame as shown in Exhibit A, no later than the work is completed or July 2001. 

            SECTION 3.    TERMINATION.  This Agreement may be terminated by either the CITY or the CONSULTANT following thirty (30) days written notice of intention to terminate; thereafter, the CITY shall be liable to the CONSULTANT only for those fees and costs earned by CONSULTANT to the date of termination and which shall be substantiated by an itemized written statement certified and submitted to CITY by the CONSULTANT.  The CITY's right of termination shall be in addition to all other remedies available under law to the CITY.  The CONSULTANT is not entitled to unemployment benefits upon termination of this Agreement with the CITY.  In any event, this Agreement shall expire at the time the work is completed.

            SECTION 4.    SUB-CONTRACTORS.  None of the services covered by this Agreement shall be subcontracted without the prior written consent of the Community Development Director or his designee.  The CONSULTANT shall be as fully responsible to the CITY for the acts and omissions of his sub-contractors, and of persons either directly or indirectly employed by them, as he is for the acts and omissions of himself and persons directly employed by him.  The CONSULTANT shall incorporate this Agreement into all subcontractor agreements so as to bind the subcontractor to the same type of level of performance as is required herein of the CONSULTANT.

            SECTION 5.    ASSIGNMENT.  This Agreement may not be assigned by CITY or CONSULTANT without prior, written consent of the other.

            SECTION 6.    INDEPENDENT CONTRACTOR.  CONSULTANT shall in all respects be an independent contractor and not an employee of the CITY.  In particular, CONSULTANT shall receive no premium or enhanced pay for work normally understood as overtime; nor shall CONSULTANT receive holiday pay, sick leave, administrative leave or pay for any other time not actually worked. Specifically, the CITY's rules, regulations, ordinances and memoranda of understanding relating to employee organizations shall not apply to any CONSULTANT.  It is intended by the parties that CONSULTANT shall not be eligible for benefits and shall receive no compensation from the CITY, except as expressly set forth in this Agreement.

            CONSULTANT is an independent contractor pursuant to Labor Code §3353.  CONSULTANT shall be responsible for the means, equipment and resources necessary to perform the consultant services.  CITY has no obligation to withhold or pay income taxes, unemployment and disability taxes, FICA or FUTA contributions, or PERS contributions.  CITY shall file a Form 1099, where applicable, reflecting compensation paid to CONSULTANT.  CONSULTANT shall be responsible for all employment taxes for all CONSULTANT’S employees.

            SECTION 7.    ADDITIONAL SERVICES.  In addition to the ongoing services described herein, the CITY and CONSULTANT may agree in writing during the terms of this Agreement, that the CONSULTANT shall perform additional services found to be necessary.  Such additional services shall not be undertaken by the CONSULTANT until there is an Agreement between the CITY and the CONSULTANT as to the scope of the services and the cost to perform said services and the CONSULTANT has received written authorization to proceed from the CITY.

            SECTION 8.    CONFIDENTIALITY.  Any report, information, exhibits, data, materials or other work given to or prepared or assembled by the CONSULTANT under this Agreement shall be confidential and shall not be made available to any third person or organization by the CONSULTANT without prior written approval of the City Attorney.  CONSULTANT is considered part of the City for purposes of protecting communications between CONSULTANT and City’s legal counsel under the attorney-client privilege.

            SECTION 9.    OWNERSHIP OF INFORMATION.  All reports, exhibits, data, materials, or other work prepared by the CONSULTANT in compliance with this Agreement shall become the property of the CITY.  The CONSULTANT shall deliver these items to the CITY, within thirty (30) days after the completion of the work.  Materials will not be used for any other purposes without the expressed permission of the CONSULTANT.

SECTION 10. PAYMENT.  In consideration of the CONSULTANT's performance of the work under this Agreement, the CITY shall pay the CONSULTANT at the rates and for the hours actually performed by the CONSULTANT in accordance with the rates set forth in Exhibit "A", attached hereto

and made a part hereof.  Payment for CONSULTANT services shall not exceed $189,975, without prior written approval by CITY.  CONSULTANT will bill CITY every 30 days for work already performed.  Payment by the CITY to the CONSULTANT shall be made within thirty (30) days after receipt of the CONSULTANT's acceptable, undisputed itemized billing.

            SECTION 11.  ACCESS TO RECORDS.  During the term of this contract and for a period of three (3) years after its termination or expiration, the CITY, or its duly authorized representatives, shall have access to any books, documents, papers and records of the CONSULTANT and of any sub-contractor of CONSULTANT, which are pertinent to this contract for the purpose of making audit, examination, excerpts and transcriptions.  The CONSULTANT shall require any of his sub-contractors under this Agreement to comply with this provision.

            The CITY shall have the right to access and audit the records of CONSULTANT for a period of three (3) years after the payment of any invoice.  CONSULTANT shall keep records according to the following standards, at a minimum:  All invoices shall provide a brief description and date of the work performed, segregated by CONSULTANT and any subcontractors as well as by task and/or deliverable work item.  In the event CONSULTANT receives written consent under Section 4 to use subcontractors, CONSULTANT shall identify them by name and address on the invoice and list any and all labor, materials, or equipment charges incurred by subcontractor that are charged to the CITY.  CITY shall not pay entertainment expenses of CONSULTANT or subcontractors.

            SECTION 12.  EXCLUSION OF LIABILITY; LIABILITY INSURANCE AND AGREEMENT TO HOLD HARMLESS.  CONSULTANT shall indemnify and hold harmless the CITY

and its officers, agents and employees from all claims arising out of the negligent acts, omissions, or misconduct of CONSULTANT,  its sub-contractors and persons directly or indirectly employed by them of services under this Agreement. The Consultant shall be required to maintain liability insurance for the coverage and in the amounts as shown on Exhibit “B”. 

SECTION 13.  JURISDICTION.  This Agreement shall be administered and interpreted under the laws of the State of California.  Jurisdiction of litigation arising from the Agreement shall be in Contra Costa County.  If any part of this Agreement is found in conflict with applicable laws, such part

shall be inoperative, null and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect.

            SECTION 14.  ATTORNEY'S FEES.  In the event either party to this Agreement brings an action to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees, witness fees and legal costs.  For purposes of this provision, "prevailing party" shall include a party which dismisses an action for recovery hereunder in exchange for payment of the sum allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action or proceeding.

            SECTION 15.  COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS.  Before commencing the services required hereunder, CONSULTANT shall disclose any potential conflicts of interest.  "Conflicts of interest" include, without limitations, doing business with or investing with any company in the development, brokerage or appraisal industry within the sphere of influence of CITY. During the term of this Agreement, CONSULTANT shall refrain from any such conflicts of interest.  CITY reserves its rights to terminate this Agreement based upon the disclosure of conflicts or the existence of conflicts not disclosed by CONSULTANT.

            CONSULTANT shall comply with all federal, State and Local laws, statutes, ordinances, rules and regulations affecting the performance of this Agreement, including without limitation laws requiring licensing and non-discrimination in employment because of race, creed, color, sex, age, marital status, physical or mental disability, national origin or other prohibited bases.

Effective date of this Agreement shall the date first above written.

CONSULTANT:

By:  ____________________________________                            

                      (Authorized Signature)

Printed Name:  ____________________________

Title:  ___________________________________

Address:  ________________________________

Phone:  ________________  Fax:  _____________

CITY OF BRENTWOOD:

_______________________________________                             

Jon Elam, City Manager

ATTEST:

_______________________________________                             

Karen Diaz, CMC, City Clerk

APPROVED TO AS TO FORM:

_______________________________________                             

 Dated:  ___________

 Dennis Beougher, City Attorney

City Administration
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