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CITY COUNCIL AGENDA ITEM NO. 1

Meeting Date: October 28, 2003

Subject/Title: Execute a Professional Services Agreement with Mark Thomas & Company, Inc.

Submitted by: Engineering: B. Grewal/P. Eldredge

Approved by: John Stevenson, City Manager

RECOMMENDATION
Approve a Resolution authorizing the City Manager to execute a Professional Services Agreement with Mark Thomas & Company, Inc., for pre-design reports and exhibits, right-of-way surveys, ongoing coordination with the Union Pacific Railroad and access alternatives for adjacent property owners for the Lone Tree Way / Union Pacific Undercrossing, CIP Project No. 336-3134, and authorize the City Manager to approve change orders up to 10% of the contract amount.

PREVIOUS ACTION
On December 10, 2002, the City Council authorized staff to execute a Professional Service Agreement with Raney Planning & Management, Inc. (RPM) to prepare the Environmental Impact Report for the Lone Tree Way / Undercrossing, CIP Project No. 336-3134.

On May 27, 2003, by Resolution No. 2868, the City Council adopted the 2003/08 Capital Improvement Program that included the Lone Tree Way / Union Pacific Railroad Undercrossing, CIP Project No. 336-3134.

BACKGROUND
The Lone Tree Way / Union Pacific Undercrossing, CIP Project No. 336-3134, will construct an underpass consisting of six travel lanes under the Union Pacific Railroad. This project will improve traffic flow, accommodate the widening currently under construction to the west and anticipated to the east, as well as fulfill the City’s requirement by the Public Utilities Commission for the allowance of an at-grade crossing of the same rail line at Sand Creek Road. As part of this overall project, Fairview Avenue Realignment is currently under construction to facilitate the utility relocation and construction of the underpass.

The Environmental Impact Report prepared for this project is currently out for public review and is anticipated to be certified by the City Council in December 2003. Certification of this document will provide the City assurance that the proposed preliminary vertical and horizontal alignments will not cause any significant impacts. Therefore, the City is able to continue with the design based upon this alignment and the final alignment will allow the right of way acquisition process to continue. The City has had preliminary meetings with representatives of the Union Pacific Railroad and continuation of this design work will also allow these discussions to continue and ultimately provide a design acceptable to all interested parties.

This contract will provide the City geometrical designs for submission to the Union Pacific Railroad, access alternative during and after construction for adjacent property owners, exhibits and legal descriptions for property acquisitions, estimates of probable construction costs, coordination with the utility companies on relocation of their facilities, as well as other preliminary engineering duties. Mark Thomas and Company has provided the City with the exhibits prepared for this project to date, as a preliminary vertical and horizontal roadway alignment had to be established for the undercrossing, when they were designing the Lone Tree Way Widening Project that is currently under construction. Their knowledge of this area and the work done to date makes them a natural choice to continue with the preliminary engineering and right-of-way support.

FISCAL IMPACT
The total cost of this proposal is $115,000, which has been included in the approved 2003/08 Capital Improvement Program Budget.

The total project budget is $11,480,000, which includes $550,000 available in Planning and Design this fiscal year, with another $600,000 budgeted for in fiscal year 2004/2005.
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Attachment:
Resolution
Agreement
Site Map

RESOLUTION NO.

A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MARK THOMAS & COMPANY, INC., FOR PRE-DESIGN REPORTS AND EXHIBITS, RIGHT-OF-WAY SURVEYS, ONGOING COORDINATION WITH THE RAILROAD AND ACCESS ALTERNATIVES FOR ADJACENT PROPERTY OWNERS FOR THE LONE TREE WAY / UNION PACIFIC UNDERCROSSING, CIP PROJECT NO. 336-3134 AND AUTHORIZE THE CITY MANAGER TO APPROVE CHANGE ORDERS UP TO 10% OF THE CONTRACT AMOUNT.

WHEREAS, on December 10, 2002, the City Council authorized staff to execute a Professional Service Agreement with Raney Planning & Management, Inc. (RPM) to prepare the Environmental Impact Report for the Lone Tree Way / Undercrossing, CIP Project No. 336-3134; and

WHEREAS, On May 27, 2003, by Resolution No. 2868, the City Council adopted the 2003/08 Capital Improvement Program that included the Lone Tree Way / Union Pacific Railroad Undercrossing, CIP Project No. 336-3134; and

WHEREAS, this contract will provide the City geometrical designs for submission to the railroad, access alternative during and after construction for adjacent property owners, exhibits and legal descriptions for property acquisitions, estimates of probable construction costs, coordination with the utility companies on relocation of their facilities, as well as other preliminary engineering duties; and

WHEREAS, Mark Thomas and Company has provided the City with the exhibits prepared for this project to date, as a preliminary vertical and horizontal roadway alignment had to be established for the undercrossing, when they were designing the Lone Tree Way Widening Project, that is currently under construction; and

WHEREAS, Mark Thomas and Company’s knowledge of this area, and the work done to date, makes them a natural choice to continue with the preliminary engineering and right-of-way support.

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 Mark Thomas and Company, Inc.

BE IT FURTHER RESOLVED that the City Council authorize the City Manager to approve change orders in the amount of 10% of the contract amount.
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PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 28th day of October 2003 by the following vote:

AGREEMENT FOR PROFESSIONAL QUALITY ASSURANCE SERVICES OF
MARK THOMAS & COMPANY, INC.

This Agreement is made and entered into this 28th day of October 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 Mark Thomas & Company, with offices located at 1243 Alpine Road, Suite 222, Walnut Creek, CA 94596, (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 is to provide to the CITY, professional services as provided by CONSULTANT as Exhibit “A” for the pre-design reports and exhibits, right-of-way surveys, ongoing coordination with the Railroad, and access alternatives for adjacent property owners for Lone Tree Way / Union Pacific Undercorssing Project, CIP Project No. 336-3134.

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 Sasha Dansky 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 October 28, 2003 and be completed on December 31, 2004.

SECTION 5 – PAYMENT

Payment shall be made by CITY only for services rendered and upon submission of a complete payment request and CITY approval of the work performed payment would be made within 30 days of receipt of CONSULTANT’S complete payment request. 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 $115,000.

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 project specific insurance:
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 General Liability and Auto Liability 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 this 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: Mark Thomas & Company, Inc.
1243 Alpine Road, Suite 222
Walnut Creek, CA 94596


SECTION 22 – AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT

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

This Agreement 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 MARK THOMAS & COMPANY, INC.


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

APPROVED AS TO FORM:


__________________________
Dennis Beougher, City Attorney

EXHIBIT “A”

BID PROPOSAL
(Scope of Work - Fees)
 

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