CITY COUNCIL AGENDA ITEM
Meeting Date: February 24, 2004
Subject/Title: Approve a Resolution authorizing the City Manager to execute
a Professional Services Agreement for The Covello Group, Inc., to provide
project management assistance for the Sand Creek Road (East) Project, CIP
Project No. 336-3061, associated mitigation and landscaping projects, and
also authorize the City Manager to approve change orders up to 10% of the
Submitted by: Engineering: B. Grewal/P. Eldredge
Approved by: John Stevenson, City Manager
Approve a Resolution authorizing the City Manager to execute a Professional
Services Agreement for The Covello Group, Inc., to provide project
management assistance during the construction of the Sand Creek Road (East)
Project, CIP Project No. 336-3061 and associated mitigation and landscaping
projects, and also authorize the City Manager to approve change orders up to
10% of the contract amount.
On May 27, 2003, by Resolution No. 2868, the City Council adopted the City’s
2003/04 – 2007/08 Capital Improvement Program that included the Sand Creek
Road (East) Project, 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
The project manager working on this project recently left employment with
the City of Brentwood and staff is “short handed”. The successful completion
of this project requires experienced project management to assist the City
staff in completing this work.
Staff recommends having The Covello Group provide project management
services through completion of the Sand Creek Road (East) Project, CIP
Project No. 336-3061, the associated mitigation project and the necessary
Sand Creek Road (East) landscape work.
The Covello Group has provided project and construction management services
to the City on three projects, the Wastewater Treatment Plant, the Sunset
Industrial Project and the Zone I Reservoir 1.3 Project. The City has been
very pleased with the level of service provided on all of these projects and
with The Covello Group staff.
The funds for this work are paid for through facility fees, which are
included in the existing budget as approved by this year’s Capital
Improvement Program 2003/04 as follows: Roadway Improvements - $18,746,500;
Development Water Facility Funds - $2,423,800, and Development Sewer
Facility Funds - $530,100, for a total project cost of $21,916,800. This
budgeted amount includes both Sand Creek Road (Central) (completed) and Sand
Creek Road (East) (under construction).
There are sufficient funds to accommodate this professional services
agreement in the amount of $216,752, in the overall budget and more
specifically in the category of Project Management. The addition of this
contract to the project will not require the amendment of the overall budget
The original construction contract with Top Grade Construction Co. for
building Sand Creek Road (East) was $7,672,500 with a 10% contingency of
$767,250. This original contingency has been used to cover the field changes
shown below. The current construction contract value is $8,078,200.
Temporary Loop and Shoofly Construction $ 239,300
Electrical Changes $ 7,500
Potable and Non-potable Waterline Changes $ 79,400
Sewer Modifications $ 53,300
Miscellaneous Civil Improvements $ 26,200
Current Approved Changes (5.3% of the contract) $ 405,700
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AUTHORIZING THE
CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR THE COVELLO
GROUP, INC., TO PROVIDE PROJECT MANAGEMENT ASSISTANCE FOR THE SAND CREEK
ROAD (EAST) PROJECT, CIP PROJECT NO. 336-3061, ASSOCIATED MITIGATION AND
LANDSCAPING PROJECTS, AND ALSO AUTHORIZE THE CITY MANAGER TO APPROVE CHANGE
ORDERS UP TO 10% OF THE CONTRACT AMOUNT.
WHEREAS, on May 27, 2003, by Resolution No. 2868, the City Council adopted
the City’s 2003/04 – 2007/08 Capital Improvement Program that included the
Sand Creek Road (East) Project, CIP Project No. 336-3061; and
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, the current project manager has left employment with the City of
Brentwood and staff is “short handed” and requires experienced project
management assistance to continue the project to ensure completion; and
WHEREAS, staff recommends having The Covello Group provide project
management services through completion of the Sand Creek Road (East)
Project, CIP Project No. 336-3061, the associated mitigation project and the
necessary Sand Creek Road (East) landscape work; and
WHEREAS, the Covello Group has provided construction management services to
the City on three projects, and the City has been very pleased with the
level of service provided on all of these projects and with The Covello
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood,
that the City Manager be authorized to execute a Professional Services
Agreement with The Covello Group, Inc.
BE IT FURTHER RESOLVED that the City Manager is authorized to approve 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 24th day of February 2004 by the following
AGREEMENT FOR PROFESSIONAL QUALITY ASSURANCE SERVICES OF
THE COVELLO GROUP, INC.
This Agreement is made and entered into this 24th day of February, 2004, by
and between the CITY OF BRENTWOOD municipal corporation existing under the
laws of the State of California, (hereinafter referred to as “CITY”), and
The Covello Group, Inc., with offices located at 43 Quail Court, Suite 111,
Walnut Creek, CA 94596, (hereinafter referred to as “CONSULTANT”).
A. CITY desires certain professional consultant services hereinafter
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 project and construction management services for Sand
Creek Road (East), CIP Project No. 336-3061, and associated mitigation and
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 JD Brosnan and Ken Sinclair 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
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 February
24, 2004 and be completed on December 31, 2005.
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 $216,752.
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,
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
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
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
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
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
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
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: The Covello Group, Inc.
43 Quail Court, Suite 111
Walnut Creek, CA 94596
SECTION 22 – AGREEMENT CONTAINS ALL
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 THE COVELLO GROUP, INC.
John Stevenson, City Manager
APPROVED AS TO FORM:
Dennis Beougher, City Attorney
(Scope of Work - Fees)