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Meeting Date: April 8, 2003

Subject/Title: Approve an Agreement for Payment of Contract Services with Vineyards at Marsh Creek, L.L.C. for Design Workshop Services for the proposed Vineyards at Marsh Creek Project located near Marsh Creek Road and the southerly extension of Fairview Avenue.

Submitted by: Mitch Oshinsky/Mike Porto

Approved by: John Stevenson, City Manager

Approve the Agreement for Payment with Vineyards at Marsh Creek, L.L.C. for Design Workshop Services for the proposed Vineyards at Marsh Creek Project located near Marsh Creek Road and the southerly extension of Fairview Avenue.
Vineyards at Marsh Creek, L.L.C. is preparing an application for annexation and development of The Vineyards a mixed-use, planned community located in an unincorporated area within the City’s sphere of influence along the City’s southerly boundary. The proposed project is included within Special Planning Area (SPA) “J” as identified in the City’s General Plan. On March 11, 2003, a similar agreement was executed with this developer to cover the costs associated with the preparation of an EIR.
The proposed Agreement for Payment of Contract Services is consistent with the City’s procedure to select a consultant (with the applicant’s concurrence) for the performance of various studies related to the project. To avoid potential conflicts of interest, the City enters into a contract with the applicant, whereby they agree to pay the full consultant costs established in a specific consultant agreement. The City then contracts with the consultant who works for, and reports directly to, the City.
The consultant contract with Hart Howerton, Ltd. for Design Workshop Services is a separate Council action that follows this first contract item on the agenda. In accordance with this agreement, Vineyards at Marsh Creek, L.L.C. will deposit funds to perform the work. The City will draw from the funds deposited to pay the consultant costs. The total cost to the applicant is $80,000 for the consultant’s work, plus reimbursable expenses as described in the scope of work, not including the 10% contingency amount. The applicant also is responsible for all other standard application fees not addressed by either of these agreements.
Vineyards at Marsh Creek, L.L.C. will pay the full cost of the work to be performed under the agreement between the City and Hart Howerton, Ltd. The applicant has deposited $80,000 with the City that will be drawn down to pay for the costs under the agreement for the Design Workshop Services. The contract provides that, in any event, the applicant shall be liable to the City for the full and total costs and fees relating to that agreement.

Agreement between the City and Vineyards at Marsh Creek, L.L.C.


AGREEMENT made this 8th day of April 2003, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and VINEYARDS AT MARSH CREEK, L.L.C ("APPLICANT").

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

SECTION 1. PURPOSE OF AGREEMENT. The APPLICANT desires to proceed with Design Workshop Services, as necessary, to prepare and present design concepts and conduct design review workshops related to the APPLICANT’S proposed development project. CITY and APPLICANT agree to engage a consultant to conduct such work. The CITY has selected Hart Howerton, Inc. (“Consultant”) to perform the work. APPLICANT agrees to pay all costs for production of the work, in addition to all other applicable CITY development, environmental and application fees.

SECTION 2. SELECTION OF CONSULTANT. CITY and Consultant have separate Agreement for Contract Services for the Design Workshop Services, dated April 8, 2003.
SECTION 3. PAYMENT TERMS FOR APPLICANT. APPLICANT agrees to pay the CITY all costs associated with the Design Workshop Services, not to exceed $80,000 plus reimbursable expenses, plus a 10% contingency of $8,000, 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. The APPLICANT’s costs for the Design Workshop Services and administration fee are $80,000, not including the 10% contingency fee.
Upon execution of this contract, the APPLICANT shall deposit with the CITY $80,000. The CITY’s costs shall be drawn by the CITY based on the rates and for the hours actually performed by the Consultant in accordance with Consultant Agreement.
In any event, including a stoppage of the project for any reason, and regardless of the amount paid to the Consultant by the CITY, the APPLICANT shall be liable to the CITY for the full and total amount of the CITY’s costs established herein. Supplemental deposits may be made subsequent to the required deposit amounts as a result of mutually agreed-upon amendments to the Scope of Work or Additional Services provided herein. Such supplemental deposits shall be made for the full amount of the amendments and shall become part of the CITY’s costs, in addition to the amount stated above. The APPLICANT remains liable to the CITY for the full amount of the CITY’s costs regardless of the project’s pace or completion.
SECTION 4. 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 Design Workshop Services 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 ten (10) 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, 2005.

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: Vineyards at Marsh Creek, L.L.C.

By: ____________________________________
(Authorized Signature)

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


John Stevenson, City Manager


Karen Diaz, CMC, City Clerk


_______________________________________ Dated: ___________
Dennis Beougher, City Attorney


City Administration
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