CITY COUNCIL AGENDA ITEM
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
Approve both Agreements with DeNova Homes and Raney Planning & Management.
The City Council granted an allocation for 480 dwelling units to DeNova
Homes for the Barrington development on July 13, 2004.
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.
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.
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.
1. Agreement For Payment of Contract Services With DeNova Homes
2. Agreement For Professional Consultant Services With Raney Planning &
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
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
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
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
CITY OF BRENTWOOD:
John Stevenson, City Manager
Karen Diaz, CMC, City Clerk
APPROVED TO AS TO FORM:
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”).
A. CITY desires certain professional consultant services hereinafter
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
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
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,
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
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
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
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
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"
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
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
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
Karen Diaz, CMC, City Clerk
APPROVED AS TO FORM:
Dennis Beougher, City Attorney