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 CITY COUNCIL AGENDA ITEM NO. 04


Meeting Date: September 10, 2002

Subject/Title: Enter into Professional Services Agreements for materials testing services with Signet Testing Labs, Inc. and for structural inspection and support services with ECO: LOGIC Consulting Engineers for Sand Creek Road (East), CIP Project No. 336-3061.

Submitted by: Engineering: B. Grewal/D. Spekner

Approved by: John Stevenson, City Manager



RECOMMENDATION
Approve a Resolution authorizing the City Manager to enter into Professional Services Agreements for materials testing services with Signet Testing Labs, Inc., in the amount of $100,000; and authorize the City Manager to approve change orders up to 10% of the contract amount; and for structural inspection and support services with ECO: LOGIC Consulting Engineers, in the amount of $150,000; and authorize the City Manager to approve change orders up to 20% of the contract amount for Sand Creek Road (East), CIP Project No. 336-3061.

PREVIOUS ACTION
On April 24, 2001, the City Council authorized the City Engineer to sign a Design Contract Change Order with Monk & Associates, LLC for environmental permitting for Marsh Creek and Sand Creek crossings with Sand Creek Road (Central & East), CIP Project No. 336-3061. 

On August 28, 2001, the City Council authorized the City Engineer to sign a Construction Contract with Granite Construction for the construction of Sand Creek Road (Central), CIP Project No. 336-3061, from west of Fairview Avenue to west of Union Pacific Railroad.

On October 23, 2001, the City Council authorized the City Manager to enter into a Professional Services Agreement with Construction Materials Testing, Inc. for materials testing services for Sand Creek Road (Central), CIP Project No. 336-3061.

On July 23, 2002, the City Council authorized the City Manager to sign a Construction Contract with Top Grade Construction, Inc. for the construction of Sand Creek Road (East), CIP Project No. 336-3061, from east of Minnesota Avenue to just west of Brentwood Boulevard, crossing the Union Pacific Railroad.

On August 13, 2002, the City Council authorized the City Manager to execute a Change Order with Monk & Associates, LLC for Environmental Permit Support in the amount of $5,000 for Sand Creek Road East, CIP Project No. 336-3061.

BACKGROUND
As part of the construction process, and after contract award, staff initiates proposal requests for portions of work that are not included in general construction contracts to establish checks and balances or controls of fieldwork. These types of contracts are usually not brought before Council because the costs associated with the work are usually within the purchasing authority of the City Manager or City Engineer. Due to the magnitude of this project, the costs are higher as reflected in the attached agreements, thereby necessitating City Council approval. 

The first item for this project is for construction materials testing services. On October 23, 2001, the City Council authorized the City Manager to enter into a Professional Services Agreement with Construction Materials Testing, Inc. for materials testing services for Sand Creek Road (Central), CIP Project No. 336-3061. Staff has worked well with Construction Materials Testing on Sand Creek Road (Central). However, City purchasing policy requires proposals for any contract work over $50,000. Staff solicited seven testing firms to submit proposals to perform materials testing services for Sand Creek Road (East). The City received proposals from all seven firms, ranging from $60,360 to $93,570: Signet Testing Labs, Inc., Consolidated Engineering Laboratories, Construction Materials Testing, Kleinfelder, Inc., Terrasearch, Inc., ENGEO, Inc., and Geocon Consultants, Inc. The most cost effective and responsive proposal was received from Signet Testing Labs, Inc. Materials testing services will be performed on an as needed basis, using the rate structure in the attached agreement and cost proposal.

The second item for this project is to provide structural inspection services and project support for the bridge over Marsh Creek Channel and the three pedestrian undercrossings. In order to ensure the integrity of the structures to plan, staff is recommending that the city contract with ECO: LOGIC Consulting Engineers to provide structural inspection on this project. ECO: LOGIC has worked well with the City so far by providing inspection services through the Covello Group at the Wastewater Treatment Plant and Staff expects the same performance on this important project.

FISCAL IMPACT
The funds for this work are through facility fees, which are included in the existing budget as approved in this year’s Capital Improvement Program 2002/03.


Attachments:
Resolution
Site Map
Agreements

RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AUTHORIZING THE CITY MANAGER TO ENTER INTO PROFESSIONAL SERVICES AGREEMENTS FOR MATERIALS TESTING SERVICES WITH SIGNET TESTING LABS, INC. IN THE AMOUNT OF $100,000, AND AUTHORIZE THE CITY MANAGER TO APPROVE CHANGE ORDERS UP TO 10% OF THE CONTRACT AMOUNT; AND FOR STRUCTURAL INSPECTION AND SUPPORT SERVICES WITH ECO: LOGIC CONSULTING ENGINEERS, IN THE AMOUNT OF $150,000, AND AUTHORIZE THE CITY MANAGER TO APPROVE CHANGE ORDERS UP TO 20% OF THE CONTRACT AMOUNT FOR SAND CREEK ROAD (EAST), CIP PROJECT NO. 336-3061.


WHEREAS, on April 24, 2001, the City Council authorized the City Manager to sign a Design Contract Change Order with Monk & Associates, LLC for environmental permitting for Marsh Creek and Sand Creek crossings with Sand Creek Road (Central & East), CIP Project No. 336-3061; and

WHEREAS, on August 28, 2001, the City Council authorized the City Manager to sign a Construction Contract with Granite Construction for the construction of Sand Creek Road (Central), CIP Project No. 336-3061, from west of Fairview Avenue to west of Union Pacific Railroad; and

WHEREAS, on October 23, 2001, the City Council authorized the City Manager to enter into a Professional Services Agreement with Construction Materials Testing, Inc. for materials testing services for Sand Creek Road (Central), CIP Project No. 336-3061. 

WHEREAS, on July 23, 2002, the City Council authorized the City Manager to sign a construction contract with Top Grade Construction, Inc. for the construction of Sand Creek Road (East), CIP Project No. 336-3061, from east of Minnesota Avenue to just west of Brentwood Boulevard, crossing the Union Pacific Railroad; and

WHEREAS, on August 13, 2002, the City Council authorized the City Manager to execute a Change Order with Monk & Associates, LLC for Environmental Permit Support in the amount of $5,000 for Sand Creek Road (East), CIP Project No. 336-3061.

WHEREAS, in order to secure a contract for the materials testing, staff recommends contracting with the lowest of seven proposals, Signet Testing Labs, Inc., to complete this work.

NOW, THEREFORE BE IT RESOLVED that the City Manager is hereby authorized to enter into a Professional Services Agreement with Signet Testing Labs, Inc., in the amount of $100,000 for materials testing services for Sand Creek Road (East), CIP Project No. 336-3061.

BE IT FURTHER RESOLVED that the City Manager is hereby authorized to approve change orders up to 10% of the contract amount.

BE IT FURTHER RESOLVED that the City Manager is hereby authorized to enter into a Professional Services Agreement with EGO: LOGIC Consulting Engineers in the amount of $150,000 for structural inspection and support services for Sand Creek Road (East), CIP Project No. 336-3061.
BE IT FURTHER RESOLVED that the City Manager is authorized to approve change orders up to 20% of the contract amount.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 10th day of September 2002 by the following vote:

AGREEMENT FOR PROFESSIONAL MATERIALS TESTING SERVICES
OF SIGNET TESTING LABS, INC.

This Agreement, made and entered into this 10th day of September, 2002, by and between the CITY OF BRENTWOOD municipal corporation existing under the laws of the State of California, hereinafter referred to as “CITY”, and Signet Testing Labs, Inc. with offices located at 3121 Diablo Avenue, Hayward, California, 94545, 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 scope of services to be performed by CONSULTANT under this agreement are to provide to the CITY, professional materials testing services as provided by CONSULTANT as Exhibit A for the Sand Creek Road (East), CIP Project No. 336-3061.

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 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 David Chippero,Thomas Wirth, Robert Criswell, and John Thompson will be the designated representatives providing services to the City and these designated representatives shall not be replaced without the City’s approval.

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 September 10, 2002, and be completed on December 31, 2003.

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 and for the hours actually performed by the CONSULTANT in accordance with the rates set forth in Exhibit “B” not to exceed $100,000.

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 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 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 $1,000,000.00 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 $1,000,000.00 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

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 and will perform the work agreed to be done under this agreement utilizing a specialist standard of care 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: Signet Testing Labs, Inc.
3121 Diablo Avenue
Hayward, CA 94545

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.


CITY OF BRENTWOOD SIGNET TESTING LABS, INC.


___________________________ ___________________________
John E. Stevenson, City Manager 
___________________________ (Print Name)




APPROVED AS TO FORM:


__________________________
Dennis Beougher, City Attorney

Exhibit A

Consulting Services Agreement
Between City of Brentwood (City) and
Signet Testing Labs (Consultant)
Dated September 10, 2002

SCOPE OF WORK

1) GENERAL
The City, or its designated representative, shall act as the Contract Administrator of this project, with the testing firm providing the specific support services listed by task number in Section 3 below. The testing firm shall provide technicians who are competent in performing all tasks and tests as referenced.

2) CITY SUPPLIED SERVICES:
The City shall supply the following information and services to allow the testing firm 
to complete the work according to schedule:

a) The City shall ensure that the Contractor is provided access to the site and the material(s) to be tested throughout the construction project.
b) The City shall supply the testing firm with any and all specific requirements for materials being field inspected and/or laboratory tested.
c) Whenever possible, the City will endeavor to give the testing firm one business day advance notice for required field testing services on the next business day. However, the testing firm should be prepared to provide “same day” service.
d) Whenever possible, the City will endeavor to give the testing firm a minimum of four (4) hours, same day advance notice for cancellations. However, this may not always be possible.

3) CONSTRUCTION MATERIALS TESTING
a) CONCRETE TESTING
i) Perform Field Work: The following concrete field tests may be required for this project:

• Concrete placement inspection – clearances, forms, rebar spacing, and curing;
• Concrete batch plant inspections;
• Concrete sampling: prepare and transport concrete cylinders for testing (ASTM C 31); perform slump tests (ASTM C 143); and test for air content in fresh concrete (ASTM C 173);
• Prepare and transport samples for concrete shrinkage test (ASTM C 157).

ii) Perform Laboratory Testing:

The following laboratory and support services and reporting may be required on 
some projects:

• Perform all necessary laboratory work to determine the compressive strength of each set of concrete cylinders at the 3, 7, 14, and 28 day cure times (ASTM C 39);
• Written results of each test performed, and a cylinder test set summary report;
• Perform concrete shrinkage testing (ASTM C 157).

b) SOIL COMPACTION TESTING
i) Perform Laboratory Testing: 
For some of the projects, the testing firm shall determine the moisture-density curve for each selected material by performing all necessary work in accordance with ASTM D 1557.

ii) Perform Compaction Testing:
Compaction tests and reporting shall be performed for some or all of the following types of work: temporary embankment, permanent embankment, trench backfill, road construction, and structural foundations. All in-place density tests and results shall be performed in accordance with ASTM D 2922 and ASTM D 3017.

The City’s field inspector or Contract Administrator shall direct which areas are to be tested. The testing firm shall then supply the City’s inspector or Contract Administrator with written results of each compaction test on a daily inspection report form prior to leaving the site. The inspector shall immediately notify the Contract Administrator and/or City inspector of any material that does not comply with the City’s requirements.

c) OPTIONAL MATERIALS TESTING
The majority of testing services required will fall under Tasks 1 and 2 of this Section 
C described above. However, this project may require additional materials
testing (as outlined below) depending on the needs of the City:

reinforcing steel structural concrete structural masonry
structural steel asphaltic concrete cement treated base
grout aggregate base 
shotcrete sand & gravel 

4) INSURANCE REQUIREMENTS
In the Consultant Services Agreement, the City will also require the selected testing firm to provide the following types of insurance as described in the sample agreement:

• Worker’s Compensation and Employer’s Liability Insurance
• Comprehensive Automobile Liability Insurance
• Commercial General Liability Insurance for property damage
• Professional Liability Insurance against negligence claims


Exhibit B

Consulting Services Agreement
Between City of Brentwood (City) and
Signet Testing Labs (Consultant)
Dated September 10, 2002

CONSULTANT'S RATES AND CHARGES
COST SUMMARY ESTIMATES

COST SUMMARY
Bid Item No. Description Criteria Assumed Quantity Units Standard Response Unit Cost Standard Response Extended Cost
1 Minimum trip charge for Concrete Field Inspection Services such as air content, slump, & temperature ASTM C31, C173 & C143 20 trips 
$88.50* 
$1,770.00
2 Concrete Cylinder Compression Tests ASTM C39 60 cylinder $17.00 
$1,020.00
3 Concrete Shrinkage Test ASTM C157 5 test $288 $1,440.00
4 Soil Compaction Curves ASTM D1557 20 curve $144.00 $2,880.00
5 Nuclear Density Gauge & Technician ASTM D2922 & D3017 1000 hours $51.45* $51,450.00
6 Resistance (R) Value Calif. Test 301 10 test $180.00 $1,800.00



Total Bid: Items 1 through 6 inclusive and 
all work incidental thereto and connected therewith: $ 60,360.00 



• All trips will be billed on 2-hr minimum increments beginning when Signet staff arrive onsite per the attached basis of charges shown in Exhibit “B”.

• Total contract amount is a not to exceed amount only. The City is not obligated to expend the full amount of the contract price listed in the agreement. Services are supplied to the City on an on-call basis.


AGREEMENT FOR PROFESSIONAL STRUCTURAL INSPECTION & SUPPORT 
SERVICES OF ECO: LOGIC CONSULTING ENGINEERS

This Agreement, made and entered into this 10th day of September, 2002, by and between the CITY OF BRENTWOOD municipal corporation existing under the laws of the State of California, hereinafter referred to as “CITY”, and ECO: LOGIC Consulting Engineers, 3875 Atherton Road, Suite 1, Rocklin, California 95765, 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 scope of services to be performed by CONSULTANT under this agreement are to provide to the CITY, professional materials testing services as provided by CONSULTANT as Exhibit A for the Sand Creek Road (East), CIP Project No. 336-3061.

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 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 Robert M. Kay 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

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 September 10, 2002, and be completed on August 31, 2003.

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 and for the hours actually performed by the CONSULTANT in accordance with the rates set forth in Exhibit “B” not to exceed $150,000.

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 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 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 $1,000,000.00 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 $1,000,000.00 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

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 and will perform the work agreed to be done under this agreement utilizing a specialist standard of care 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: ECO: LOGIC Consulting Engineers
3875 Atherton Road, Suite 1
Rocklin, California 95765

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.


CITY OF BRENTWOOD ECO: LOGIC CONSULTING ENGINEERS


___________________________ ______________________________
John Stevenson, City Manager 

______________________________ (Print Name)

APPROVED AS TO FORM:


__________________________
Dennis Beougher, City Attorney

Exhibit A

Consulting Services Agreement
Between City of Brentwood (City) and
ECO:LOGIC Consulting Engineers (Consultant)
Dated September 10, 2002

SCOPE OF WORK

5) GENERAL

The City, or its designated representative, shall act as the Contract Administrator of this project, with the Consultant providing the specific support services listed by task number in Section 3 below. The consultant shall provide Robert Kay, P.E. to perform all tasks and reports as referenced.

6) CITY SUPPLIED SERVICES:

The City shall supply the following information and services to allow the Consultant 
to complete the work according to schedule:

a) The City shall ensure that the Consultant is provided access to the site and the material(s) and/or work to be inspected throughout the construction project.
b) The City shall supply the Consultant with any and all specific requirements for materials and/or work being inspected and/or laboratory tested.

7) CONSTRUCTION PROJECT OVERSIGHT

a) Provide daily field inspection reports that include descriptions of work activities, work crews and equipment, and any discrepancies or non-compliance issues that may arise during the course of construction. 
b) Maintain non-compliance log and follow-up with City Staff and the Contractor to ensure work is in completed in accordance with the Contract Documents.

c) Monitor the Contractors progress schedule of work to ensure work is being performed in the proper sequence and that the Contractor is preparing for future work in a timely manner.

d) Assist the City Inspector in the examination of work in progress for compliance with the Contract Documents and applicable building codes, regulations, and ordinances, as well as all environmental permitting requirements. This includes coordination of all necessary lab tests and reporting requirements per the Contract Documents and environmental permits.

e) Assist the City Inspector and City Contract Administrator in coordinating construction activities with other City Staff, Outside Agencies, and Developers.

f) Recommend necessary or desirable changes to the City and review requests for changes received from the Contractor. Assist in negotiating the Contractor’s proposals and submit recommendations to the City for authorization.

g) Assist the Contract Administrator in evaluating the merit and cost of proposed change orders in conjunction with the designer and the City.

h) Maintain cost account records on additional work authorized to be performed and maintain a potential change order log to facilitate the processing of change order approvals.

i) Maintain the Request for Information (RFI) log and make recommendations for responses.

j) Assist the City Inspector and Contract Administrator in reviewing payment requests and make recommendations to the City for payment.

k) Recommend corrective action when Contract Document requirements are not being met.

l) Make recommendations to the City regarding special inspection or testing of work not in accordance with the provisions of the Contract Documents.

m) Subject to the review by the City, recommend rejection of work that does not conform to the Contract Document requirements. Review Contractor’s recommendations for corrective action in conjunction with the City Staff.

n) Prepare the project “Punch List” and initiate Project Closeout requirements.

o) Make determination when the Contractor is nearing Substantial Completion and recommend to the City what remaining work is necessary to achieve Substantial Completion. Notify the City and Contractor of any deficiencies remaining incomplete. Upon the City’s concurrence, issue a Certificate of Substantial Completion with the exceptions noted and valued.

p) At the conclusion of all corrective actions and punch list items, make a final comprehensive review of the project and make recommendations to the City regarding final payment to the Contractor.

q) As requested by the City, assist in the review of claims for time extensions, cost and impact evaluations, and prepare a report. The report will also provide a narrative including a recommendation for action by the City. 

r) Other duties as assigned.

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