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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 10

Meeting Date: October 26, 2004

Subject/Title: Authorize the City Manager to sign an Agreement for Payment of Contract Services with DeNova Homes and approve an Agreement for Contract Services with Raney Planning & Management for preparation of an Environmental Impact Report analyzing the proposed Barrington Project located south of Sunset Road, west of Sellers Avenue and east of Connor Way and Windsor Way

Prepared by: Winston Rhodes, Senior Planner

Submitted by: Howard Sword, Economic Development Director

RECOMMENDATION
Approve both Agreements with DeNova Homes and Raney Planning & Management.

PREVIOUS ACTION
The City Council granted an allocation for 480 dwelling units to DeNova Homes for the Barrington development on July 13, 2004.

BACKGROUND
DeNova Homes is preparing an application for development of the Barrington Project, a residential planned community including an elementary school site, fire station, stormwater detention basin, and three neighborhood parks located south of Sunset Road, west of Sellers Avenue, and east of Connor Way and Windsor Way. Due to the size of the development proposal and the inclusion of important public facilities as well as the project’s impact on State Highway 4 an Environmental Impact Report (EIR) is needed as part of the review and approval process to analyze and address potentially significant impacts resulting from the proposed project.

To avoid potential conflicts of interest, the City procedure is to select a consultant (with the applicant’s concurrence) specializing in EIR preparation. The City then enters into a contract with the applicant, whereby they agree to pay the full consultant and City administrative costs involved with the EIR. The City then contracts with the EIR consultant, who works for and reports directly to City staff. The consultant’s work will be supervised by the Community Development Department with assistance from other City departments and outside agencies as needed. The consultant contract is a separate agreement.

ANALYSIS
In accordance with the first contract, DeNova Homes, will deposit funds to prepare the EIR. The City will draw from the funds deposited by the applicant to pay the consultant, and the City’s fee for administration of the EIR. The total EIR cost to the applicant is $156,200 that represents the estimated costs for the EIR of $124,960, plus the 25% City administration fee of $31,240. The contract with DeNova Homes provides for a 15% contingency in case of unforeseen additional expenses. The applicant also is responsible for all other standard development application fees not addressed by either of these agreements.

The Community Development Department received three proposals to prepare the EIR. Any of the three are qualified to do the work. We have prior experience with all of the consultants. Staff has reviewed all three proposals with the applicant. Based on price, the applicant wishes to use Raney Planning & Management. Raney’s proposal is comprehensive and adheres to the RFP that was sent to six consulting firms. Raney’s past work for the City has been well executed and the firm’s staff has demonstrated a high level of competence and responsiveness when analyzing prior development proposals in the City. Raney’s proposal, including the scope of work, schedule and budget are exhibits to both Agreements. The consultant’s work will be supervised by the Community Development Director or his designee.

FISCAL IMPACT
DeNova Homes will pay the full cost of the EIR and administrative fees upfront to the City prior to contract initiation. The City will collect an administrative fee to supervise the consultant work and process an EIR consistent with the California Environmental Quality Act requirements.

ATTACHMENTS

1. Agreement For Payment of Contract Services With DeNova Homes
2. Agreement For Professional Consultant Services With Raney Planning & Management

AGREEMENT FOR PAYMENT OF CONTRACT SERVICES
WITH DENOVA HOMES FOR
ENVIRONMENTAL IMPACT REPORT FOR THE BARRINGTON PROJECT

AGREEMENT made this ___ day of , 2004, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and DENOVA HOMES ("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 and administration of subject EIR, 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 EIR, dated , 2004.
SECTION 3. PAYMENT TERMS FOR APPLICANT. APPLICANT agrees to pay the CITY all costs associated with preparation of the EIR, not to exceed $124,960, plus a 15% contingency, without the APPLICANT’S written approval, plus the APPLICANT shall pay the CITY’S 25% administration fee for the EIR of $31,240, plus 25% of any contingency funds used. 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. Upon execution of this contract, APPLICANT shall deposit with the CITY the estimated EIR cost of $124,960, plus the standard 25% cost for City Administration of the EIR ($31,240).

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 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 1, 2006.

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 and secured appropriate fee for such additional work, including City’s administrative costs.

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.

APPLICANT: DeNova Homes

By:
(Authorized Signature)

Printed Name:
Title:
Address:
Phone: Fax:

CITY OF BRENTWOOD:

Dated:
John Stevenson, City Manager

ATTEST:

Dated:
Karen Diaz, CMC, City Clerk

APPROVED TO AS TO FORM:

Dated:
Dennis Beougher, City Attorney

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES
WITH RANEY PLANNING & MANAGEMENT, INC
FOR ENVIRONMENTAL IMPACT REPORT PREPARATION FOR
THE BARRINGTON PROJECT BY DENOVA HOMES

This Agreement for Professional Consultant Services (“Agreement”), made and entered into this ____ day of ______________, 2004, by and between the CITY OF BRENTWOOD, a municipal corporation existing under the laws of the State of California (hereinafter referred to as “CITY”), and Raney Planning & Management, Inc., with offices in West Sacramento, California (hereinafter referred to as “CONSULTANT”).

RECITALS

A. CITY desires certain professional consultant services hereinafter described.

B. CITY desires to engage CONSULTANT to provide these services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.

NOW, THEREFORE, IT IS AGREED as follows:

SECTION 1 – SCOPE OF SERVICES

1.1 The scope of services to be performed by CONSULTANT under this Agreement is for professional services on an as-needed basis for preparation of an Environmental Impact Report and related services, as may be required by the CITY.

SECTION 2 – DUTIES OF CONSULTANT

2.2 CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.

2.3 CONSULTANT represents that it is qualified to furnish the services described under this Agreement.

2.4 CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.

2.5 It is understood that Cindy Gnos will be the designated representative providing services to the City and this designated representative shall not be replaced without the City’s approval.

SECTION 3 – DUTIES OF CITY

3.1 CITY shall provide pertinent information regarding its requirements for the project.

3.2 CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT’S work.

SECTION 4 – TERM

4.1 The services to be performed under this Agreement shall commence on __________, 2004 and be completed by ____________ January 1, 2006.

SECTION 5 – PAYMENT

5.1 Payment shall be made by CITY only for services rendered and upon submission of a payment request and CITY approval of the work performed. 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” not to exceed $124,960.

SECTION 6 – TERMINATION

6.1 Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the project for any reason upon ten (10) days’ written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.

6.2 Upon termination and upon CITY’S payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation. Upon termination or expiration of this Agreement, the obligations of the parties shall cease, save and except from those provided under Sections 7, 8, 10, 11, 12, 14, 15, and 16.

SECTION 7 – OWNERSHIP OF DOCUMENTS

7.1 All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not. Use of the instruments of professional service by City for other than the project, is at CITY’S sole risk without legal liability or exposure to CONSULTANT.

SECTION 8 - CONFIDENTIALITY

8.1 All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.

SECTION 9 – INTEREST OF CONSULTANT

9.1 CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.

SECTION 10 – CONSULTANT’S STATUS

10.1 It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.

SECTION 11 – INDEMNITY

11.1 CONSULTANT, in the performance of professional services, under this Agreement shall indemnify, defend, and hold harmless CITY, its directors, officers, employees and agents from any claim, loss, injury, damage, and expense and liability to the extent arising out of the negligence, errors, omissions, or wrongful acts of CONSULTANT, its employees, subcontractors, or agents. For other liability arising out of professional services, CONSULTANT shall indemnify, defend, and hold harmless, CITY, its directors, officers, employees, and agents from any loss, injury, damage, and expense and liability resulting from injury to or death of any person and loss of or damage to property, or claim of such injury, death, loss or damage, caused by an act or omission in the performance under this Agreement by CONSULTANT, its employees, subcontractors, or agents, except for any loss, injury, or damage caused by the sole negligence or willful misconduct by CITY.

SECTION 12 – INSURANCE

12.1 The CONSULTANT shall provide and maintain:

A. Commercial General Liability Insurance, occurrence form, with a limit of not less than $1,000,000.00 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit.
B. Automobile Liability Insurance, occurrence form, with a limit of not less than $500,000.00 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles.
C. Errors and omissions insurance in the minimum amount of $1,000,000.00 aggregate.
D. Workers Compensation in at least the minimum statutory limits.
E. General Provisions for all insurance. All insurance shall:
1. Include the City of Brentwood, its elected and appointed officers, employees, and volunteers as additional insureds with respect to this Agreement and the performance of services in this Agreement. The coverage shall contain no special limitations on the scope of its protection to the above-designated insureds except for Workers Compensation and errors and omissions insurance.
2. Be primary with respect to any insurance or self-insurance programs of CITY, its officers, employees, and volunteers.
3. Be evidenced, prior to commencement of services, by properly executed policy endorsements in addition to a certificate of insurance.
4. No changes in insurance may be made without the written approval of the City Attorney's Office.

SECTION 13 – NONASSIGNABILITY

13.1 Personal Services of Consultant: Both parities hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.

SECTION 14 - RELIANCE UPON PROFESSIONAL SKILL OF CONSULTANT

14.1 It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT'S work by CITY does not operate as a release of consultant from said obligation.

SECTION 15 - WAIVERS

15.1 The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of same or of any other term, covenant, condition, ordinance or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deeded to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement of any applicable law or ordinance.

SECTION 16 - COSTS AND ATTORNEYS’ FEES

16.1 Attorneys’ fees in an amount not exceeding $85.00 per hour per attorney, and in total amount not exceeding $5,000.00, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5,000.00 limit is the total of attorneys’ fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5,000.00 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this Agreement.

SECTION 17 - NON-DISCRIMINATION

17.1 CONSULTANT warrants that is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.

SECTION 18 - MEDIATION
18.1 Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from the mediators listed by either the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfolded" process.

18.2 The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.

SECTION 19 - ARBITRATION

19.1 After mediation above, and upon agreement of the parties, any dispute or claim arising out of or relating to this Agreement may be settled by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs of arbitration shall be borne equally by the parties.

SECTION 20 - LITIGATION

20.1 CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT'S services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT'S wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT'S standard hourly rates at the time of actual testimony.

SECTION 21 - NOTICES

21.1 All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:

To CITY: City of Brentwood
150 City Park Way
Brentwood, CA 94513

To CONSULTANT: Raney Planning & Management, Inc.
1401 Halyard Drive, Suite 120
West Sacramento, CA 95691

SECTION 22 – AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT

22.1 This Agreement represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.

22.2 This Agreement may be amended only by written instrument, signed by both CITY and CONSULTANT.

SECTION 23 – GOVERNING LAW

23.1 This Agreement shall be governed by the laws of the State of California.

IN WITNESS WHEREOF, CITY and CONSULTANT have executed this Agreement the day and year first above written.

CITY OF BRENTWOOD CONSULTANT
____ _____
John E. Stevenson, City Manager Raney Planning & Management

Date Date

ATTEST:

Karen Diaz, CMC, City Clerk

Date

APPROVED AS TO FORM:

Dennis Beougher, City Attorney

Date
 

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