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CITY COUNCIL AGENDA ITEM NO. 3

Meeting Date: November 27, 2001

Subject/Title: Approval of Agreement for Payment of Contract Services with Balfour Properties LLC for Mitigated Negative Declaration for Safeway Project

Submitted by: Mitch Oshinsky, AICP, Community Development Director/Erik Nolthenius, Associate Planner

Approved by: John Stevenson, City Manager

RECOMMENDATION


Approve the Agreement for Payment of Contract Services with Balfour Properties LLC for a Mitigated Negative Declaration for Safeway Project

PREVIOUS ACTION

None

BACKGROUND

McNellis Partners wishes to proceed with plans for development of a neighborhood shopping center with a supermarket, retail shops, and four retail pads at the southeast corner of Balfour Road and Fairview Avenue. Due to the size, scope, and location of the proposal, it is evident to both the applicant and the City that a Mitigated Negative Declaration (MND) needs to be prepared for the project, including analysis of traffic, noise, soils and pipeline risk of upset.

By adoption of this Agreement, Balfour Properties LLC (current property owner) will pay for all costs for production of the MND, while McNellis Partners will be paying all other applicable City development and application fees. Adoption of this Agreement is appropriate prior to the following item on the Council Agenda on November 27, 2001, which is for approval of the contract with the MND preparer.

In order to avoid potential conflict of interest, the City has, with the concurrence of Balfour Properties LLC, selected the consultant, EIP Associates. Balfour Properties LLC will pay the City for the MND, and the City will pay EIP, who will report directly to me.

AGREEMENT FOR PAYMENT OF CONTRACT SERVICES
WITH BALFOUR PROPERTIES LLC FOR
MITIGATED NEGATIVE DECLARATION FOR SAFEWAY PROJECT 

AGREEMENT, made this 27th day of November, 2001, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and BALFOUR PROPERTIES 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 a Mitigated Negative Declaration (MND) as necessary pursuant to State law, to analyze and mitigate any potentially significant environmental impacts arising out of the APPLICANT’S proposed Safeway development project. CITY and APPLICANT agree to engage a consultant to prepare an MND. The CITY has selected EIP Associates (“Consultant”) to prepare an MND. APPLICANT agrees to pay all costs for production of subject MND, while McNellis Partners (developer) will be paying all other applicable CITY development and application fees. 

SECTION 2. SELECTION OF CONSULTANT. CITY and Consultant have separate Agreement for Contract Services for the Safeway MND, dated November 27, 2001. 
SECTION 3. PAYMENT TERMS FOR APPLICANT. APPLICANT agrees to pay the CITY all costs associated with preparation of the MND, not to exceed $43,396, without the APPLICANT’S written approval. APPLICANT shall deposit the stated fee with CITY within 10 working days of the execution of this AGREEMENT. APPLICANT shall then 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. MND 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 MND for the Safeway 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 October 2002.

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 be the date first above written.


APPLICANT:

By: ____________________________________ 
(Authorized Signature)

Printed Name: ____________________________
Title: ___________________________________
Address: ________________________________
Phone: ________________ Fax: ____________ 


CITY OF BRENTWOOD:


_______________________________________ 
John Stevenson, City Manager



ATTEST:


_______________________________________ 
Karen Diaz, CMC, City Clerk



APPROVED TO AS TO FORM:


_______________________________________ Dated: ___________
Dennis Beougher, City Attorney


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