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CITY COUNCIL AGENDA ITEM NO. 07



Meeting Date: September 11, 2001

Subject/Title: Approval of Agreement for Payment of Contract Services with Brentwood Partners LLC for Environmental Impact Report for Lone Tree Center Project on Lone Tree, east of Empire.

Submitted by: Mitch Oshinsky, AICP, Community Development Director

Approved by: Jon Elam, City Manager


RECOMMENDATION

Approve the Agreement for Payment of Contract Services 

PREVIOUS ACTION

None

BACKGROUND

Brentwood Partners LLC wish to proceed with plans for development of a major retail commercial center, on the north side of Lone Tree Way, east of Empire. Due to the size and scope of the proposal (approximately 180,000 square feet of building area), it is evident to the applicant and the City, that an Environmental Impact Report (EIR) needs to be prepared for the project.

By adoption of this Agreement, the applicant will pay for all costs for production of the EIR, in addition to all other applicable City development and application fees. Adoption of this Agreement is appropriate prior to the following item on the Council Agenda on September 11, 2001, which is for approval of the contract with the EIR preparer.

In order to avoid potential conflict of interest, the City has, with the applicant’s concurrence, selected the consultant, EIP Associates. The applicant will pay the City for the EIR, and the City will pay EIP, who will report directly to me. 

FISCAL IMPACT

None 

AGREEMENT FOR PAYMENT OF CONTRACT SERVICES
WITH BRENTWOOD PARTNERS LLC FOR
ENVIRONMENTAL IMPACT REPORT FOR LONE TREE CENTER PROJECT 


AGREEMENT, made this 11th day of September, 2001, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and BRENTWOOD PARTNERS LLC ("APPLICANT").

For the consideration hereby acknowledged, the CITY and APPLICANT agree as follows:

SECTION 1. PURPOSE OF AGREEMENT. The APPLICANT desires to proceed with an Environmental Impact Report (EIR) as necessary pursuant to State law, to analyze and mitigate any potentially significant environmental impacts arising out of the APPLICANT’S proposed development project. CITY and APPLICANT agree to engage a consultant to prepare an EIR. The CITY has selected EIP Associates (“Consultant”) to prepare an EIR. APPLICANT agrees to pay all costs for production of subject EIR, in addition to all other applicable CITY development and application fees. 

SECTION 2. SELECTION OF CONSULTANT. CITY and Consultant have separate Agreement for Contract Services for the EIR, dated September 11, 2001. 
SECTION 3. PAYMENT TERMS FOR APPLICANT. APPLICANT agrees to pay the CITY all costs associated with preparation of the EIR, not to exceed $84,440, plus a 10% contingency of $8,444, without the APPLICANT’s written approval. APPLICANT shall pay CITY 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. Consultant will bill CITY every 30 days for work already performed. Payment by the APPLICANT to the CITY shall be made within twenty-one (21) days after receipt of the Consultant's acceptable, undisputed itemized billing. 
SECTION 4. EIR SCOPE OF WORK. 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 EIR for the project, except as the Scope may be amended by mutual written agreement among the APPLICANT, Community Development Director, and the Consultant’s authorized representative.
SECTION 5. TERMINATION. This Agreement may be terminated by either the CITY or the APPLICANT following thirty (30) days written notice of intention to terminate; thereafter, the APPLICANT shall be liable to the CITY 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. In any event, this Agreement shall expire at the time the work is completed, but no later than January 31, 2003.

SECTION 6. ADDITIONAL SERVICES. In addition to the ongoing services described herein, the CITY, APPLICANT 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 APPLICANT as to the scope of the services and the cost to perform said services and the CITY has received written authorization to proceed from the APPLICANT.

SECTION 7. 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. 

SECTION 8. 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 9. 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.

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


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