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CITY COUNCIL AGENDA ITEM NO. 03



Meeting Date: May 22, 2001

Subject/Title: Consideration of consultant agreement with Teri Flynn for design review services.

Submitted by: Mitch Oshinsky, AICP, Community Development Director

Approved by: Jon Elam, City Manager


RECOMMENDATION
The City Council Economic Development Committee and staff recommend approval of the attached Agreement for Professional Consultant Services. 

PREVIOUS ACTION
None

BACKGROUND
The City Council Economic Development Committee has directed staff to refocus the application review process for commercial projects in order to create a process specifically tailored to streamlining and expediting nonresidential applications, while at the same time ensuring a high level of design quality for these projects. Staff has approached this item in a number of ways, including the preparation of Design Guidelines to provide clear, proactive direction on aesthetic design to commercial developers. 

We are also proposing to ramp up our design review services via the addition of a professional consulting architect to provide peer review of nonresidential project design. After interviews of a number of highly qualified architects, the City Council Economic Development Committee and staff are recommending the selection of Teri Flynn as our consultant. We were all impressed with Ms. Flynn’s very nice and thorough proposal and presentation for peer review services, and with her expertise, knowledge, creativity and hands-on architectural design experience. It was readily apparent that she is very familiar with a range of design issues. Ms. Flynn also comes highly recommended by the City of Fairfield Economic Development Director.

The process would include an initial meeting with Ms. Flynn, staff, the applicant and their design professionals to discuss the site and initial design concepts. Next would be a site visit, identification of issues with staff, preliminary review and comments on the project, then resolution of issues. Ms. Flynn will charge $130 per hour plus expenses. The City will pass these costs on to the applicant, plus a 15% administrative cost for City management of the deposit accounts. Therefore, there will be no actual cost to the City for this additional service. 


AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES OF TERI FLYNN
This Agreement, made and entered into this 22nd day of May 2001, 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 Teri Flynn, Architect, 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
The CONSULTANT shall perform any and all work needed to complete the tasks on an as-needed basis for planning design review services, including presentations to the Planning Commission and/or City Council as needed, and attendance at City and applicant plan review meetings, and staff Development Review Committee meetings as needed for particular projects, as may be required by the CITY. Typical design review services provided by CONSULTANT could include:

· An initial meeting including CONSULTANT, City staff, the applicant and their design professionals to discuss the site, program and initial design concepts.
· CONSULTANT reconnaissance of the site.
· A discussion between staff and CONSULTANT to identify any special issues or concerns.
· CONSULTANT preliminary review of the project with a summary letter to staff identifying planning and design issues. When appropriate, CONSULTANT will prepare overlay diagrams to suggest one or more alternative approaches to resolving individual concerns.
· Staff will forward the letter along with any additional comments to the applicant for review and revisions to the design. It may be appropriate for CONSULTANT to meet with the applicant to discuss the concerns and perhaps reach some preliminary agreement as to direction.
· Once revisions are made to the design and it is resubmitted, CONSULTANT may review the project again if necessary. On complex projects, or cases where the applicant is unable or unwilling to make satisfactory modifications, the process may have to go through additional cycles.
· CONSULTANT may attend Planning Commission and/or City Council meetings, and/or staff Development Review Committee meetings as needed for particular projects, as may be required by the CITY. 

SECTION 2 – DUTIES OF CONSULTANT
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.

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

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

It is understood that Teri Flynn, will be the designated representatives providing services to the City and this designated representative shall not be replaced without the City’s 

SECTION 3 – DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.

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
The services to be performed under this agreement shall commence on May 23, 2001 and be completed on a future date as mutually agreed upon by CITY and CONSULTANT.

SECTION 5 – PAYMENT
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 for the work actually performed by the CONSULTANT, not to exceed the hourly fees and expenses for each development project, of $130/hour, and mileage at $0.34/mile.

SECTION 6 – TERMINATION
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.

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
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
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
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
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
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 liability 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 negligent act or omission or other wrongful conduct in the performance under this Agreement by CONSULTANT, its employees, subcontractors, or agents, except for any loss, injury, or damage caused by the active negligence or willful misconduct of personnel employed by CITY. 

SECTION 12 – INSURANCE
The CONSULTANT shall provide and maintain:
A. Commercial General Liability Insurance, occurrence form, with a limit of not less than $1,000,000 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. Workers Compensation in at least the minimum statutory limits.
D. General Provisions for all insurance. All insurance shall:
1. Except Professional Liability and Workers Compensation Insurance, 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 Professional Liability, 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 which are not consistent with the requirements of this agreement may be made without the written approval of the City Attorney's Office.

SECTION 13 - NONASSIGNABILITY
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
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
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 or of any subsequent breach or violation of the same or of any other term, 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
Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, 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 the agreement. The above $5000 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 $5000 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this agreement.

SECTION 17 - NON-DISCRIMINATION
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
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 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.

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
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
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
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: Teri Flynn
Flynn, Craig + Grant
301 Hartz Avenue
Suite 213
Danville, CA 94526

SECTION 22 – AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT

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

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

SECTION 23 – GOVERNING LAW

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.

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