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 CITY COUNCIL AGENDA ITEM NO. 03 



Meeting Date: March 11, 2003

Subject/Title: Approval of Agreement for Contract Services with Freedman Tung & Bottomley for Specific Plan for Downtown/Brentwood Blvd. Corridor/Lone Tree Triangle Project

Submitted by: Mitch Oshinsky, AICP, Community Development Director

Approved by: John Stevenson, City Manager


RECOMMENDATION 
Approve the Agreement for Contract Services with Freedman Tung & Bottomley 

PREVIOUS ACTION
On February 20, 2003, the Economic Development Committee reviewed specific plan proposals from the two top consulting firms and selected Freedman Tung & Bottomley (FTB) to prepare our plan. Previously, the City Council, Economic Development Committee and Planning Commission approved the vision and outline for the specific plan, Request for Qualifications, and Request for Proposals sent by the City to qualified consultants. 

BACKGROUND
The Economic Development Committee felt that FTB was the best qualified firm in terms of relevant experience with downtown and corridor specific plans, that their past work products were excellent, and their proposal contained the following key points: They see the relationship between the new Bypass/Lone Tree shopping areas, and the Downtown/Brentwood Blvd. revitalization strategies; and they propose to begin with analysis of transportation, economic and land use patterns at the Citywide scale. Looking at Citywide patterns will help determine the impact of changes to the Bypass/Lone Tree, on the Downtown, and best lead to development of a relevant specific plan. In addition, the Committee felt that FTB had met the Committee’s prior direction to significantly reduce the cost of their proposal.

FISCAL IMPACT
The contract amount is $274,202. I have obtained a $65,000 grant from the Metropolitan Transportation Commission to partially fund this plan. Adequate City funds are budgeted to pay the balance. 






Attachment: Agreement for Contract Services




AGREEMENT FOR CONTRACT SERVICES
WITH FREEDMAN TUNG & BOTTOMLEY FOR
SPECIFIC PLAN FOR DOWNTOWN/BRENTWOOD BLVD. CORRIDOR/LONE TREE TRIANGLE PROJECT 

PROFESSIONAL SERVICES AGREEMENT, made this 11th day of March 2003, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and Freedman Tung & Bottomley ("CONSULTANT").

The CITY and CONSULTANT agree to the following:

SECTION 1. PURPOSE OF AGREEMENT. The CITY desires to engage a CONSULTANT to provide specific skills and technical expertise for temporary contract services within the Community Development Department. 

SECTION 2. PERFORMANCE BY CONSULTANT. The CONSULTANT shall undertake and prosecute the work diligently to conclusion, using that standard of care, skill and diligence normally provided by a professional person in the performance of such contract services in respect to work similar to that hereunder as follows:
a. Commence work immediately after: CONSULTANT's receipt of a verbal or written notice to proceed from the Community Development Director or authorized staff personnel, but no sooner than City Council’s approval of this Agreement.
b. 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 Specific Plan for the project, except as the Scope may be amended by mutual written agreement of the Community Development Director and authorized CONSULTANT representative.
c. The CONSULTANT shall complete the work mutually agreed upon within the time frame as shown in Exhibit A, or as may be amended by mutual agreement of the Community Development Director and authorized CONSULTANT representative.
SECTION 3. TERMINATION. This Agreement may be terminated by either the CITY or the CONSULTANT following thirty (30) days written notice of intention to terminate; thereafter, the CITY shall be liable to the CONSULTANT 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. The CONSULTANT is not entitled to unemployment benefits upon termination of this Agreement with the CITY. In any event, this Agreement shall expire at the time the work is completed.

SECTION 4. SUB-CONTRACTORS. None of the services covered by this Agreement shall be subcontracted without the prior written consent of the Community Development Director or his designee. The CONSULTANT shall be as fully responsible to the CITY for the negligent acts and omissions of his sub-contractors, and of persons either directly or indirectly employed by them, as he is for the negligent acts and omissions of himself and persons directly employed by him. The CONSULTANT shall incorporate this Agreement into all subcontractor agreements so as to bind the subcontractor to the same type of level of performance as is required herein of the CONSULTANT.

SECTION 5. ASSIGNMENT. CITY or CONSULTANT may not assign this Agreement without prior, written consent of the other.

SECTION 6. INDEPENDENT CONTRACTOR. CONSULTANT shall in all respects be an independent contractor and not an employee of the CITY. In particular, CONSULTANT shall receive no premium or enhanced pay for work normally understood as overtime; nor shall CONSULTANT receive holiday pay, sick leave, administrative leave or pay for any other time not actually worked. Specifically, the CITY's rules, regulations, ordinances and memoranda of understanding relating to employee organizations shall not apply to any CONSULTANT. It is intended by the parties that CONSULTANT shall not be eligible for benefits and shall receive no compensation from the CITY, except as expressly set forth in this Agreement.

CONSULTANT is an independent contractor pursuant to Labor Code §3353. CONSULTANT shall be responsible for the means, equipment and resources necessary to perform the consultant services. CITY has no obligation to withhold or pay income taxes, unemployment and disability taxes, FICA or FUTA contributions, or PERS contributions. CITY shall file a Form 1099, where applicable, reflecting compensation paid to CONSULTANT. CONSULTANT shall be responsible for all employment taxes for all CONSULTANT’S employees.

SECTION 7. ADDITIONAL SERVICES. In addition to the ongoing services described herein, the CITY 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 CONSULTANT as to the scope of the services and the cost to perform said services and the CONSULTANT has received written authorization to proceed from the CITY.

SECTION 8. CONFIDENTIALITY. Any report, information, exhibits, data, materials or other work given to or prepared or assembled by the CONSULTANT under this Agreement shall be confidential and shall not be made available to any third person or organization by the CONSULTANT without prior written approval of the City Attorney except as required by law. CONSULTANT is considered part of the City for purposes of protecting communications between CONSULTANT and City’s legal counsel under the attorney-client privilege.

SECTION 9. 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 upon payment to the CONSULTANT of all undisputed acceptable itemized fees fees. The CONSULTANT shall deliver these items to the CITY, within thirty (30) days after the completion of the work. Materials will not be used for any other purposes without the expressed permission of the CONSULTANT. Consultant shall retain the right to use these items in the preparation of its promotional materials.

SECTION 10. PAYMENT. In consideration of the CONSULTANT's performance of the work under this Agreement, 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", attached hereto 
and made a part hereof. Payment for CONSULTANT services shall not exceed $274,202, plus a 10% contingency of $27,420, without prior written approval by CITY. CONSULTANT will bill CITY every 30 days for work already performed. Payment by the CITY to the CONSULTANT shall be as set forth in Exhibit C, Consultant Fee and Compensation Schedule. 

SECTION 11. ACCESS TO RECORDS. During the term of this contract and for a period of three (3) years after its termination or expiration, the CITY, or its duly authorized representatives, shall have access by appointment during regular business hours to any books, documents, papers and records of the CONSULTANT and of any sub-contractor of CONSULTANT, which are pertinent to this contract for the purpose of making audit, examination, excerpts and transcriptions. The CONSULTANT shall require any of his sub-contractors under this Agreement to comply with this provision.

The CITY shall have the right to access and audit the records of CONSULTANT for a period of three (3) years after the payment of any invoice. CONSULTANT shall keep records according to the following standards, at a minimum: All invoices shall provide a brief description and date of the billing period in which the work was performed, segregated by CONSULTANT and any subcontractors as well as by task and/or deliverable work item. In the event CONSULTANT receives written consent under Section 4 to use subcontractors, CONSULTANT shall identify them by name and address on the invoice and list any and all labor, materials, or equipment charges incurred by subcontractor that are charged to the CITY. CITY shall not pay entertainment expenses of CONSULTANT or subcontractors.

SECTION 12. EXCLUSION OF LIABILITY; LIABILITY INSURANCE AND AGREEMENT TO HOLD HARMLESS. CONSULTANT shall indemnify and hold harmless the CITY and its officers, agents and employees from all claims arising out of the negligent acts, omissions, or misconduct of CONSULTANT, its sub-contractors and persons directly or indirectly employed by them of services under this Agreement. The Consultant shall be required to maintain liability insurance for the coverage and in the amounts as shown on Exhibit “B”. 

SECTION 13. JURISDICTION. This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from the Agreement shall be in Contra Costa County. If any part of this Agreement is found in conflict with applicable laws, such part 
shall be inoperative, null and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect.

SECTION 14. 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.

SECTION 15. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Before commencing the services required hereunder, CONSULTANT shall disclose any potential conflicts of interest. "Conflicts of interest" include, without limitations, doing business with or investing with any company in the development, brokerage or appraisal industry within the sphere of influence of CITY. During the term of this Agreement, CONSULTANT shall refrain from any such conflicts of interest. CITY reserves its rights to terminate this Agreement based upon the disclosure of conflicts or the existence of conflicts not disclosed by CONSULTANT. 

CONSULTANT shall comply with all federal, State and Local laws, statutes, ordinances, rules and regulations affecting the performance of this Agreement, including without limitation laws requiring licensing and non-discrimination in employment because of race, creed, color, sex, age, marital status, physical or mental disability, national origin or other prohibited bases.



Effective date of this Agreement shall the date first above written.

CONSULTANT:


By: ____________________________________ 
(Authorized Signature)

Printed Name: Michael Freedman
Title: Principal
Address: 74 New Montgomery, San Francisco, CA 94105
Phone: (415) 291-9455 Fax: (415) 291-9633 



CITY OF BRENTWOOD:


_______________________________________ 
John Stevenson, City Manager



ATTEST:


_______________________________________ 
Karen Diaz, CMC, City Clerk



APPROVED TO AS TO FORM:


_______________________________________ Dated: ___________
Dennis Beougher, City Attorney



EXHIBIT "B"
INSURANCE REQUIREMENTS

Without limiting Consultant’s indemnification obligations provided for above, Consultant shall take out and maintain at all times during the life of this Agreement the following policies of insurance with insurers possessing a Best Rating of not less than A, Class VII:

A. Consultant certifies that it is aware of the provisions of the California Labor Code which require every employee to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and Consultant certifies that he will comply with such provisions before commencing performance of this Agreement. The City is not responsible or liable for Consultant’s failure to comply with any and all of said requirements.

B. Commercial general liability coverage which is equivalent to the comprehensive general liability form and broad form comprehensive general liability endorsement. The insurance shall be in an amount of not less than $1 million combined, single limit personal injury and property damage for each occurrence.

C. Automobile liability insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount of not less than $1 million combined single limit for each occurrence.

D. The commercial general liability and automobile liability insurance policy shall be endorsed with the following specific language:

1. The City of Brentwood, its elected or appointed officials, employees, agents and volunteers are included as additional insureds with regard to damages and defense of claims arising from activities performed by or on behalf of the Named Insured, and products and completed operations of the Named Insured.

2. The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit brought.

3. The insurance provided for herein shall be primary insurance as respects the City, its elected or appointed officers, officials, employees, agents or volunteers. Any other insurance maintained by the City, its elected or appointed officers, officials, employees, agents or volunteers shall be in excess of this insurance and shall not contribute with it.

4. The insurance provided by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days written notice has been provided to the City by mail, return receipt requested.

5. Any failure to comply with the reporting requirements of the policy shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers.

E. Prior to commencing work under this Agreement, Consultant shall submit to the City documentation evidencing the above required insurance signed by the insurance agent and the companies named.
















































EXHIBIT C

CONSULTANT FEE AND COMPENSATION SCHEDULE


1) BASIC FEES. CONSULTANT fee shall be based on the performance of each of the tasks set forth in EXHIBIT "A", not to exceed the total sum of $274,202, plus a 10% contingency of $27,420, including PROJECT COSTS as set forth in this Schedule without prior written approval by CITY. Billing and payment shall be based on hourly rates and PROJECT COSTS as set forth below.

2) INVOICING. CONSULTANT shall submit monthly invoices for services performed and PROJECT COSTS incurred. Each invoice is due and payable by the CLIENT on presentation and is past due thirty (30) days from invoice date. Any billing disputes shall be brought to the attention of CONSULTANT within fourteen (14) days of billing presentation. If CLIENT fails to timely bring a billing dispute to the attention of CONSULTANT, CLIENT waives the right to dispute the amount billed.

An interest charge of 10% annual percentage rate may be added to overdue accounts. Interest charges will not be added to amounts that were inaccurately calculated by the CONSULTANT. If accounts are unpaid forty-five (45) days from the date of billing, work may be halted at the discretion of CONSULTANT until payments are made current. In addition, the CONSULTANT reserves the right to withhold delivery of work product or extend time limits applicable to the performance of this AGREEMENT in the event of delinquent receivables. The CONSULTANT shall not be held responsible for any damages due to halting work or withholding work product. 

3) ADDITIONAL SERVICES. Additional services shall be compensated at CONSULTANT'S hourly rates pursuant to Paragraph Six (6) of this EXHIBIT. CLIENT shall not be obligated to make payments for ADDITIONAL SERVICE pursuant to this AGREEMENT unless such service and the price therefore is set forth in an executed work order or authorized in writing by CLIENT. 

4) TERMINATION OF SERVICES. In the event services are terminated, through no fault of CONSULTANT, by either party CLIENT shall compensate the CONSULTANT for all outstanding fees and PROJECT EXPENSES incurred for work completed prior to CONSULTANT's receipt of notice of termination. CONSULTANT shall also be entitled to recover its costs of preparing documents and files for delivery to CLIENT on the basis of billing rates established in this EXHIBIT. CONSULTANT shall maintain adequate logs, timesheets and records to verify fees and PROJECT COSTS incurred. [Use this provision with Prime Agreement only when similar language is not included in the Prime Agreement.] 

5) SUBCONSULTANTS. Fees of subconsultants retained by CONSULTANT shall be paid by CONSULTANT from its basic fee as set forth in Paragraph One (1) of this EXHIBIT.

6) HOURLY RATES. For professional services performed the fee schedule shall be:

Principal I $ 185 per hour
Principal II $ 150 per hour
Construction Methods Specialist $ 140 per hour
Senior Associate $ 110 per hour
Associate $ 85 per hour
Graphic Artist $ 80 per hour 
Project Landscape Designer $ 70 per hour
Project Urban Designer $ 70 per hour
GIS Operator I $ 75 per hour 
AutoCAD Operator I $ 75 per hour
AutoCAD Operator II $ 65 per hour
Draftsman $ 55 per hour
Document Publishing Technician $ 55 per hour
Database Operator $ 50 per hour
Project Assistant I $ 50 per hour
Project Assistant II $ 45 per hour
Technical Secretary $ 40 per hour 
Office Assistant $ 25 per hour

7) PROJECT COSTS. In addition to the hourly rate charged, the following shall be charged as PROJECT COSTS: 

Document duplication, messenger services, postage and handling, long distance telephone calls, travel expenses for out-of-office services, special equipment charges, desktop publishing, office archives and database, governmental plan and other inspection fees, expenses for renderings, models and mock-ups requested by CLIENT, expenses for additional insurance coverage or limits, including professional liability insurance, requested by the CLIENT in excess of that normally carried by the CONSULTANT, and/or associated with contracts to subconsultants, plus other out-of-pocket expenses reasonably required in performance of services for the Project.



City Administration
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