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CITY COUNCIL AGENDA ITEM NO. 21


Meeting Date: April 8, 2003

Subject/Title: Approve an Agreement for Contract Services with Hart Howerton, Ltd. 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


RECOMMENDATION
Approve the Agreement for Contract Services with Hart Howerton, Ltd. for Design Workshop Services for the proposed Vineyards at Marsh Creek Project located near Marsh Creek Road and the southerly extension of Fairview Avenue, for an amount not to exceed $80,000 plus a 10% contingency amount.

PREVIOUS ACTION
The preceding item on this Council Agenda is for approval of an Agreement for Payment with Vineyards at Marsh Creek, L.L.C. to cover the costs under the proposed Agreement for Contract Services with Hart Howerton, Ltd. for Design Workshop Services. City Council approval of this Agreement for Contract Services is contingent upon approval of the Agreement for Payment between the City and Vineyards at Marsh Creek, L.L.C.

BACKGROUND
The Agreement for Contract Services with Hart Howerton, Ltd. is for Design Workshop Services specific to a proposed mixed-use project known as The Vineyards at Marsh Creek. The proposed project is located in an unincorporated area within the City’s sphere of influence and identified in the City’s General Plan as Special Planning Area (SPA) “J.” The applicant for the project is Vineyards at Marsh Creek, L.L.C. The proposed agreement 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.
Hart Howerton, Ltd. is recommended to perform the Design Workshop Services. The scope of work and payment schedule are exhibits to the Agreement for Contract Services. The contract amount for this work is established at a figure not to exceed $80,000 plus reimbursable expenses as described in the scope of work, plus a 10% contingency amount. Payment to the consultant for the work performed shall be drawn by the City from a deposit made by the applicant according to the Agreement for Payment between the City and the applicant.
FISCAL IMPACT
None. Vineyards at Marsh Creek, L.L.C. will pay the full costs under the Agreement for Contract Services with Hart Howerton, Ltd. for Design Workshop Services.

Attachment:
Agreement between the City and Hart Howerton, Ltd.

AGREEMENT FOR CONTRACT SERVICES
WITH HART HOWERTON, LTD., FOR DESIGN WORKSHOP SERVICES
FOR VINEYARDS AT MARSH CREEK PROJECT

PROFESSIONAL SERVICES AGREEMENT, made this 8th day of April 2003, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and Hart Howerton, Ltd. ("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.
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 Design Workshop Services for the 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, or as may be amended by mutual agreement of the Community Development Director and authorized CONSULTANT representative.
SECTION 3. TERMINATION. This Agreement may be terminated by either the CITY or the CONSULTANT following ten (10) 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. CITY or CONSULTANT may not assign this Agreement 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 $80,000 plus reimbursable expenses as set forth in Exhibit “A,” plus a 10% contingency fee of $8,000, 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: Hart Howerton, Ltd.

By: ____________________________________
(Authorized Signature)

Printed Name: __Dave Howerton_____________
Title: _________Chief Executive Officer________
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







March 28, 2003


John Stevenson, City Manager
City of Brentwood
150 City Park Way
Brentwood CA 94513


RE: The Vineyards at Marsh Creek Community Workshop
HH Project #: P088

Dear John:

We are writing to outline our scope of services and steps that we will be taking to prepare for the Vineyards at Marsh Creek Community Workshop. This letter will serve as the basis of our contractual agreement and provide authorization to proceed with the following:

1.0 SCOPE OF SERVICES –

1.1 Workshop Preparation: Prior to the workshops, we will prepare, obtain and coordinate the following exhibits -

1.1.1 Scoping, schedule and content meeting with City of Brentwood
(3/11).

1.1.2 Review and comment on materials prepared by Dahlin Group
(3/11 & 3/19).

1.1.3 Agenda – Organization, dinner, speakers and invitees.

1.1.4 Meeting with California State Parks (3/26).

1.1.5 Hart Howerton preparation of workshop exhibits and supporting materials.
a. Regional Site Analysis Diagram
b. 8 ½” X 11” color images to help determine project character (landscape, architecture, building types, etc.)
c. Scale comparisons for winery/hotel site: to coordinate with Rosenblum Winery
d. Scale comparisons for residential Communities
e. Scale comparisons for commercial area
f. Cut and fill diagram over existing grading plan from CBG
g. USGS diagram to show site location and existing regional surroundings
h. Land use analysis for Site

1.1.6 Hart Howerton coordination and review of consultant prepared exhibits.

Dahlin Group
a. Regional Aerial Plan
b. Local Aerial Plan
c. Summerset and Vineyards at Marsh Creek Aerial Plan
d. Constraints Aerial Plan
e. Land Use Oblique
f. Grading Oblique Before/After
g. Neighbor’s Eye Level Before/After
h. PG&E Eye Level Before/After
i. Fairview and Concord Before/After
j. John Marsh House at Marsh Creek Eye Level Before/After

Carlson Barbee Gibson
a. Color Aerial: Citywide/regional with streets labeled and Vineyards Plan in color, 1000-scale
b. Color Aerial: Zoomed in on Project Site with streets labeled, Vineyards Plan in color, 300-scale
c. B/W Plot: Clean topo with Boundary line
d. B/W Plot: Constraints Map Zoomed in on project site with existing topo, gaslines, power lines, easements, roadway alignments (Bypass and Fairview)
e. B/W Plot: Hotel/Winery Site 60-scale (a draft being drafted now – we will create two exhibits for your consideration: One – we erase the existing topo from where we are showing the developable pads, and Two – we leave the existing topo under the graded pads. “One” might be less distracting, but “Two” may be requested.
f. B/W Plot: Recreation Center Site 60-scale (same two exhibits)
g. B/W Plot: Village Center Site 60-scale (same two exhibits)

1.1.7 Preparation of workshop exercises materials, presentations and information.



1.2 Community Workshop: We will lead a two and one-half day Community workshop scheduled for April 2-4, 2003. Hart Howerton staff to attend as follows:

Community Facilition Design Team
Dave Howerton Craig Roberts
Jim Heid Dwight DeMay
Tim Slattery Joe Hruda

Anticipated products from the workshop shall include:

A. Vision Statement and Development Principles.
B. Refined or Confirmed Opportunities and Constraints plan
C. Preferred development concept layers including:
a. Circulation, linkages and trails/golf cart trails
b. Open space and built massing concept plan
c. Amenities and landmarks concept
d. Landscape character concept
D. Identity and Imagery Concepts
a. Landscape elements
b. Architectural character
E. Phasing Strategy

Step 3 Public Presentation: Based upon the results of the workshop, we will prepare a draft development plan and update the associated exhibits. We would then participate in a presentation of the project in a public hearing scheduled for April 16, 2003.

Step 4 City Council/ City Planning Workshop: Based upon the results of the hearing, we will prepare a final draft development plan and update the associated exhibits for a workshop with the Brentwood City Council and City Planning officials. We will participate in this workshop scheduled for May 13, 2003.

Step 5 Summary Documents: We will then provide you with a bound document summarizing the results of the workshops. The extent and scope of this document has yet to be determined. We will work with you over the coming weeks to finalize the content of this summary document.

2.0 SUBCONSULTANTS – We understand that all subconsultants needed to perform and complete this work (The Dahlin Group and Carlson Barbee Gibson) would contract directly with Blackhawk.

3.0 SCHEDULE – We estimate that the work will be performed between March 17, 2003 and May 30, 2003. This schedule will be confirmed in connection with the workshop and public hearing schedules.

4.0 FEES – We propose to do the work outlined above on a time and materials basis. We estimate the total effort should not exceed $80,000 excluding reimbursable costs. Reimbursables includes but not limited to printing, shipping, delivery and travel costs. A schedule of our current rates and billing procedures is attached. Should the scope of work change, we would bring it to your attention in advance and discuss an adjustment to the estimate accordingly. We would not exceed the above figure without your specific approval.

If the arrangements outlined above are acceptable, then your signature below or other written authorization from you can make this letter our working agreement.


Best regards, Approval:


_____________________________
Dave Howerton John Stevenson Date
Chief Executive Officer City of Brentwood

Enclosure: Attachment I: Standard Terms & Conditions

cc: Brian Depolo

 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov