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 CITY COUNCIL AGENDA ITEM NO. 07



Meeting Date: January 28, 2003

Subject/Title: Execute a Contract with EIP Associates to provide Environmental Consulting Services for Shady Willow Lane Widening and the extension between Lone Tree Way and Sand Creek, CIP Project No. 336-3127

Submitted by: Engineering: B. Grewal /E. Kim

Approved by: John Stevenson, City Manager



RECOMMENDATION
Approve a Resolution authorizing the City Manager to execute a Professional Services Agreement with EIP Associates in an amount not to exceed $87,760.00.00 to provide Environmental Consulting Services for Shady Willow Lane Widening and Extension – between Lone Tree Way and Sand Creek for CIP Project No. 336-3127, and granting the City Manager authority to execute change orders up to 10% of the contract amount. 

PREVIOUS ACTION
On November 10, 1998, the City Council approved Resolution No. 98-196 that annexed the northwest area into the City of Brentwood.

On November 28, 2000, the City Council approved Resolution No. 2203 to take various actions. These actions included adding the Northwest Quadrant Infrastructure to the 2000/05 Capital Improvement Program, directing the City Engineer to initiate right of way acquisitions in order to widen and extend Shady Willow Lane, directing the City Engineer to initiate discussions with the development community to develop a Capital Improvement Financing Program (CIFP 2002-1) to assist in financing the required engineering and infrastructure to support the anticipated development in this quadrant of the City, directing the City Engineer to hire a consultant to assist the City in developing environmental mitigation measures for this and other City infrastructure, and, if possible, develop a mitigation bank to keep environmental mitigation expenditures within the City limits of Brentwood or immediately adjacent, to the maximum extent possible.

On February 27, 2001, the City Council approved Resolution No. 2246 approving the form and content of the Northwest Quadrant Infrastructure Design Engineering Fee Reimbursement Agreement and related actions.

On May 22, 2001, the City Council, by Resolution No. 2299, certified and approved the Negative Declaration and adopted the 2001/06 Capital Improvement Program (CIP) for the City of Brentwood including street, park, sewer, water, and other municipal improvements to be constructed during the next five years.

On May 22, 2001, the City Council authorized the City Engineer to execute a Consultant Services Agreement with Cordoba Consulting, Inc. for project management services not to exceed $115,000.00 for the Northwest Quadrant Infrastructure, CIP Project No. 336-3127.

On May 7, 2002, by Resolution No. 02-18, the Planning Commission confirmed that the proposed 2002/03 – 2006/07 Capital Improvement Program (CIP) is consistent with the adopted General Plan of the City of Brentwood as required by Section 6540l of the Government Code.

On May 28, 2002, by Resolution No. 2549, the City Council adopted the City’s 2002/03 – 2006/07 Capital Improvement Program that included the Northwest Quadrant Infrastructure, CIP Project No. 336-3127. 

On July 9, 2002, by Resolution No. 2610, the City Council approved executing contract amendments for Professional Design and Service Agreements for the Northwest Quadrant Infrastructure, CIP Project No. 336-3127, which included Fairview Realignment.

On July 9, 2002, by Resolution No. 2613, the City Council certified and adopted the Mitigated Negative Declaration for the Lone Tree Way Widening Project, a portion of the Northwest Quadrant Infrastructure, CIP Project No. 336-3127.

BACKGROUND
As a part of the Northwest Quadrant infrastructure, Shady Willow Lane is proposed to be constructed as four lanes and extended southward from Lone Tree Way to Sand Creek. This project will provide an additional north south corridor to connect commercial centers on Lone Tree Way and Sand Creek. Also, this project will provide the necessary infrastructure to induce economic development of the commercial/industrial zoned corridor between the Bypass and Shady Willow Lane. The proposed project would widen the existing facility from two to four lanes and extend the road approximately one mile southward to Sand Creek. The City is in the process of acquiring the needed right of way for the project. The contract with EIP Associates will provide for professional services to comply with the California Environmental Quality Act (CEQA). 

The major tasks include:
• Investigate and determine the environmental effects of this project 
• Identify and provide for adequate mitigation measures
• Create and administer a mitigation monitoring program 
• Prepare and process required documentation

EIP Associates performed the environmental study and documentation for the adjacent Lone Tree Way Widening Project in accordance with CEQA. With this prior experience and background knowledge of the project area, EIP Associates is the best choice to provide these services.

FISCAL IMPACT
The funds for this work would be provided through developer funding, assessment district funds and facility fees, which are included in the existing budget as approved in this year’s Capital Improvement Program 2002/07.

Attachments:
Resolution
Site Map
Agreement



RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH EIP ASSOCIATES IN AN AMOUNT NOT TO EXCEED $87,760.00 TO PROVIDE ENVIRONMENTAL CONSULTING SERVICES FOR SHADY WILLOW LANE WIDENING AND EXTENSION – BETWEEN LONE TREE WAY AND SAND CREEK - FOR CIP PROJECT NO. 336-3127, AND GRANTING THE CITY MANAGER AUTHORITY TO EXECUTE CHANGE ORDERS UP TO 10% OF THE CONTRACT AMOUNT. 


WHEREAS, on November 10, 1998, the City Council approved Resolution No. 98-196 that annexed the northwest area into the City of Brentwood; and

WHEREAS, on November 28, 2000, the City Council approved Resolution No. 2203 to take various actions. These actions included adding the Northwest Quadrant Infrastructure to the 2000/05 Capital Improvement Program, directing the City Engineer to initiate right of way acquisitions in order to widen Lone Tree Way, directing the City Engineer to initiate discussions with the development community to develop a Capital Improvement Financing Program (CIFP 2002-1) to assist in financing the required engineering and infrastructure to support the anticipated commercial development in this quadrant of the City, directing the City Engineer to hire a consultant to assist the City in developing environmental mitigation measures for this and other City infrastructure and, if possible, develop a mitigation bank to keep environmental mitigation expenditures within the City limits of Brentwood or immediately adjacent, to the maximum extent possible; and

WHEREAS, on February 27, 2001, the City Council approved Resolution No. 2246 approving the form and content of the Northwest Quadrant Infrastructure Design Engineering Fee Reimbursement Agreement and related actions; and

WHEREAS, on May 22, 2001, the City Council approved Resolution No. 2299 adopting the City’s 2001/06 Capital Improvement Program that includes the Northwest Quadrant Infrastructure; and

WHEREAS, on May 7, 2002, by Resolution No. 02-18, the Planning Commission confirmed that the proposed 2002/03 – 2006/07 Capital Improvement Program (CIP) is consistent with the adopted General Plan of the City of Brentwood as required by Section 6540l of the Government Code; and

WHEREAS, On May 28, 2002, by Resolution No. 2549, the City Council adopted the City’s 2002/03 – 2006/07 Capital Improvement Program that included the Northwest Quadrant Infrastructure, CIP Project No. 336-3127; and

WHEREAS, On July 9, 2002, by Resolution No. 2610, the City Council approved executing contract amendments for Professional Design and Service Agreements for the Northwest Quadrant Infrastructure, CIP Project No. 336-3127, which included Fairview Realignment; and

WHEREAS, On July 9, 2002, by Resolution No. 2613, the City Council certified and adopted the Mitigated Negative Declaration prepared by EIP Associates for the Lone Tree Way Widening Project, a portion of the Northwest Quadrant Infrastructure, CIP Project No. 336-3127; and

WHEREAS, as a part of the Northwest Quadrant, Shady Willow Lane is to be widened from the existing two lanes to four lanes and extended to Sand Creek; and

WHEREAS, the environmental impact of the proposed Shady Willow Lane Widening and Extension must be assessed in accordance with the California Environmental Quality Act (CEQA); and

WHEREAS, with the background knowledge and experience EIP Associates has with the project area, EIP Associates is the best choice for this work. Other firms were considered, however, none would be able to provide the level of service that is expected from EIP Associates.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood hereby authorizes the City Manager to execute a Professional Services Agreement with EIP Associates in an amount not be exceed $87,760.00 for Environmental Consulting Services for Shady Willow Lane Widening and Extension – between Lone Tree Way and Sand Creek for CIP Project No. 336-3127.

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

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 28th day of January 2003 by the following vote:

AGREEMENT FOR PROFESSIONAL ENVIRONMENTAL SERVICES
OF EIP AND ASSOCIATES

This Agreement, made and entered into this 28th day of January 2003, by and between the CITY OF BRENTWOOD municipal corporation existing under the laws of the State of California, hereinafter referred to as “CITY”, and EIP AND ASSOCIATES with offices located at 601 Montgomery Street, Suite 500, San Francisco, California 94111 “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 environmental services as provided by EIP as Exhibit A for the Shady Willow Lane Widening/Extension project as part of the North West Quadrant, CIP Project No. 336-3127.

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 Michael 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 January 28, 2003 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 “A” not to exceed $87,750.

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: EIP
601 Montgomery Street
Suite 500
San Francisco, CA 94111

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 EIP Associates


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

APPROVED AS TO FORM:


__________________________
Dennis Beougher, City Attorney

EXHIBIT “A”

BID PROPOSAL
(Scope of Work)



City Administration
City of Brentwood City Council
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Brentwood, CA 94513
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E-mail allcouncil@brentwoodca.gov