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CITY COUNCIL AGENDA ITEM NO. 15

Meeting Date: August 26, 2003

Subject/Title: Approve a Resolution authorizing the City Manager to execute an agreement with Kaplan McLaughlin Diaz (KMD) to begin the site selection and programming process for the New City Hall Project, CIP Project No. 337-3139.

Prepared by: Engineering: B. Grewal/M. Huber
Economic Development: Howard Sword

Approved by: John Stevenson, City Manager

RECOMMENDATION
Approve a Resolution authorizing the City Manager to execute an agreement with Kaplan McLaughlin Diaz (KMD) to begin the site selection and programming process for the New City Hall Project, CIP Project No. 337-3139, in the amount of $195,000; and authorize the City Manager to execute change orders not to exceed 10% of the contract amount for the project.

PREVIOUS ACTION
On April 7, 2003, the City Council Capital Improvement Workshop was held to review the 2003/08 Capital Improvement Program, which included the New City Hall Project, CIP Project No. 337-3139.

On May 27, 2003, the City Council appointed Mayor Brian Swisher and Council Member Bill Hill to the New City Hall Ad Hoc Committee.

On July 22, 2003, the City Council authorized staff to negotiate a contract for architectural services with KMD and to return to Council with the negotiated scope and costs associated with the proposed services.

BACKGROUND
Staff met with KMD to discuss the scope of work and fees associated to begin the New City Hall project. The site selection process is Phase I and is unique to this project. The Ad Hoc Committee and staff have reviewed possible site locations and four to five sites had been identified as possible locations for a downtown City Hall Facility. Staff invited City consultants working on current downtown projects (City Park, The Downtown Specific Plan and The Downtown Parking Garage) to meet with KMD to share information. This meeting generated a wealth of project information not only by saving the City money by decreasing unnecessary studies (reducing the phase I fee by $90,000), it also brought to light a downtown discussion by these experienced professionals that we anticipate will help the City determine which site location will be the best choice for the City Hall Facility and for the good of downtown now and in the future.

A narrative will be prepared for each of the sites and the analysis utilized as part of the EIR process. A joint Council and Planning meeting will be held to discuss the site selection analysis. Phase II includes programming, which is to determine project goals and objectives, levels of building performance, quality, budgets and schedules. Historical research will also be performed as part of this task. KMD would also re-look at the current needs assessment and incorporate additional desired facilities such as City Council Chambers, Mayor/Council/Planning Offices, meeting rooms and finally a conceptual departmental plan and space plan including adjacencies.

Staff is comfortable with the first two phases of this important project. If Council approves, it is staff’s intention to contract with KMD for both phases of work and bring the project back before Council for further direction once the site selection process and programming phases are complete.

FISCAL IMPACT
Funding for Phase I and Phase II for the New City Hall Facility derives from Community Facility Fees and are budgeted as part of the 2003/04 CIP Project sheet.

Attachment
Resolution
Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH KAPLAN MCLAUGHLIN DIAZ (KMD) TO BEGIN THE SITE SELECTION AND PROGRAMMING PROCESS FOR THE NEW CITY HALL PROJECT, CIP PROJECT NO. 337-3139, IN THE AMOUNT OF $195,000; AND AUTHORIZE THE CITY MANAGER TO EXECUTE CHANGE ORDERS NOT TO EXCEED 10% OF THE CONTRACT AMOUNT FOR THE PROJECT.

WHEREAS, on April 7, 2003, the City Council Capital Improvement Workshop was held to review the 2003/08 Capital improvement Program, which included the New City Hall Project, CIP Project No. 336-3139; and

WHEREAS, on May 27, 2003, the City Council appointed Mayor Brian Swisher and Council Member Bill Hill to the New City Hall Ad Hoc Committee; and

WHEREAS, on July 22, 2003, the City Council authorized staff to negotiate a contract for architectural services with KMD and to return to Council with the negotiated scope and costs associated with the proposed services; and

WHEREAS, staff met with KMD and have negotiated the scope and costs associated with the first two phases of the design process; and

WHEREAS, staff included City consultants working on various downtown projects to share information to assist in the site selection process; and

WHEREAS, upon Council approval, staff will complete the first two phases of work and bring the project back before Council for further direction.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood, that the City Manager is authorized to execute an agreement with KMD in the amount of $195,000.

BE IT FURTHER RESOLVED that the City Manager is authorized to execute change orders not to exceed 10% of the Contract amount.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 26th day of August 2003 by the following vote:

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES

This Agreement, made and entered into this 26th day of August 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 Kaplan McLaughlin Diaz (KMD), with offices at 222 Vallejo Street, San Francisco, California, 94111 hereinafter referred to as “CONSULTANT”.

RECITALS

A. CITY desires certain professional consultant services for: Site Selection, Master Plan and Programming, Verification, Confirmation, Facility Tours, for City of Brentwood “New City Hall Offices” Project.

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 is described in Consultant’s proposal, attached hereto as Exhibit A and made a part hereof.

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 David Hobstetter will be the designated representative providing services to the City and this designated representative shall not be replaced without the City’s written 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 August 26, 2003 and be completed as set forth in Exhibit A.

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. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee not to exceed $195,000.00.

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.

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 agrees to hold harmless and indemnify CITY, its officers and employees from and against any and all claims, loss, liability, damage, and expense arising from the negligent, or claimed negligent, performance of this agreement by CONSULTANT, including claims, loss, liability, damage, and expense caused or claimed to be caused by passive negligence of CITY, its officers or employees. CONSULTANT agrees to defend CITY, its officers or employees against any such claims. This provision does not apply to claims, loss, liability or damage or expense arising from the sole negligence, willful misconduct, or active negligence of 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. 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.
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 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 it 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: Kaplan McLaughlin Diaz
222 Vallejo Street
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 CONSULTANT
___________________________ __________________________
John Stevenson, CITY MANAGER Roy S. Latka, PRESIDENT

APPROVED AS TO FORM:

______________________________
Dennis Beougher, CITY ATTORNEY

Exhibit A
Scope of Work

 

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov