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Meeting Date: January 28, 2003

Subject/Title: Approve an Agreement for Payment of Contract Services with Pulte Homes Corporation for an Environmental Impact Report to be prepared by Raney Planning & Management, for the new Rose Garden Project to be located along Lone Tree Way, Neroly Road and the Railroad tracks.

Submitted by: Community Development Department (M. Oshinsky/M. Leana) 
Approved by: John Stevenson, City Manager

Approve the Agreement for Payment of Contract Services with Pulte Homes.


Pulte Homes desires to proceed with plans for development of a major housing development on the north side of Lone Tree Way, between O’Hara Avenue and the railroad tracks. Due to the lawsuit filed by the labor unions on the prior Rose Garden subdivision and rezoning, Pulte Homes agreed to revise their plan and process an Environmental Impact Report to address the projects potentially adverse environmental impacts that the labor unions legal counsel felt were not completely analyzed in the previous project. 

By adoption of this Agreement, the applicant (Pulte Homes) will pay for all costs for production of the EIR, in addition to all other applicable City development and application fees including a fee for City administering the EIR contract. Adoption of this Agreement is appropriate prior to the following item on the Council Agenda on January 28, 2003, 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, Raney Planning & Management (RP&M). The applicant will pay the City for the EIR, and the City will pay RP&M, who will report directly to city staff. 

The full costs will be borne by Pulte Homes.

EIR Contract 


AGREEMENT, made this 28th day of January, 2003, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and PULTE HOMES CORPORATION ("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 Raney Planning & Management (“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 January 28, 2003. 
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, 2004.

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.


By: ______ _______/SS/________ __________ 
(Authorized Signature)

Printed Name: _____RODGER C. MILLER__ ___
Title: _Director of Planning and Development____
Address: _7031 Koll Center Parkway, #150_____
Phone: _(925) 249-3216 Fax: _(925) 485-0391_ 


John Stevenson, City Manager


Karen Diaz, CMC, City Clerk


_______________________________________ Dated: ___________
Dennis Beougher, City Attorney

Exhibit A – Proposal
Exhibit B Insurance Requirement
City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441