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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 10

Meeting Date: June 8, 2004

Subject/Title: Authorize the City Manager to execute two Professional Services Agreements for the Recreation Facility, CIP No. 522-5228 and the Aquatic Complex / Concession, CIP Project No. 522-5230.

Prepared by: Engineering: M. Huber

Submitted by: Economic Development: H. Sword

RECOMMENDATION
Authorize the City Manager to execute professional services agreements with Quattrocchi Kwok Architects in an amount of $248,380 including a 10% contingency for the design and with RGM and Associates in the amount of $390,830 including a 10% contingency for construction management of the project known as the Recreation Facility, CIP Project No. 522-5228 and the Aquatic Complex / Concession, CIP Project No. 522-5230.

PREVIOUS ACTION
On May 27, 2003, City Council adopted the 2003/2008 CIP budgeting program of which this project is included and named Aquatic Center Community Service Facility.

On January 27, 2004, City Council approved the start of design for the Recreation Facility project and authorized staff to expend $55,000 to begin the process.

On May 25, 2004, City Council adopted the 2004/2009 CIP budgeting program of which these projects are included.

BACKGROUND
Staff began work with Quattrocchi Kwok Architects as directed by City Council on January 27, 2004. Staff has subsequently met with the New City Hall Task Force to discuss budgeting, schematic design and project progress. It is staff’s intent to formalize the agreement with Quattrocchi Kwok Architects to move the design to the next phase of work which is Design Development. The contract presented this evening would bring the project through this phase as well as construction documents, bidding, construction administration to finally “as built drawings.” Staff has worked with RGM and Associates in the past and completed successful multi prime projects with their firm, such as the Technology Center, the upgrades to the Corporation Yard as well as the recently completed 120 Oak Street project (Engineering Annex). The Recreation Facility project would be constructed as a multi prime project which allows staff to better control the work and costs associated with construction and recommends that RGM and Associates be retained for construction management services for the project.

FISCAL IMPACT
The funds associated with this work are included in the recently adopted Capital Improvement Program. No budget modifications are required at this time.

Attachments:
Resolution
Agreements
Site Maps
CIP Budget Sheets

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD TO AUTHORIZE THE CITY MANAGER TO EXECUTE PROFESSIONAL SERVICES AGREEMENTS WITH QUATTROCCHI KWOK ARCHITECTS IN AN AMOUNT OF $248,380 INCLUDING A 10% CONTINGENCY FOR THE DESIGN AND WITH RGM AND ASSOCIATES IN THE AMOUNT OF $390,830 INCLUDING A 10% CONTINGENCY FOR CONSTRUCTION MANAGEMENT OF THE PROJECT KNOWN AS THE RECREATION FACILITY, CIP PROJECT NO. 522-5228 AND THE AQUATIC COMPLEX / CONCESSION CIP PROJECT NO. 522-5230. .

WHEREAS, on May 27, 2003, City Council approved the 2003/2008 CIP Program which this project is included and named Aquatic Center Community Service Facility; and

WHEREAS, on January 27, 2004, City Council approved the start of design for the Recreation Facility project and authorized staff to expend $55,000 to begin the process; and

WHEREAS, on May 25, 2004, City Council adopted the 2004/2009 CIP budgeting program of which these projects are included; and

WHEREAS, staff began the design work on the project and is scheduled for design review and ultimately Planning Commission review; and

WHEREAS, upon approval, staff will construct the project as a multi prime project; and

WHEREAS, staff along with RGM and Associates have completed successful projects in the past and maintain a good working relationship.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood that the City Manager is authorized to execute professional services agreements with Quattrocchi Kwok Architects and with RGM and Associates for the Recreation Facility, CIP No. 522-5228 and the Aquatic Complex / Concession, CIP Project No. 522-5230.

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

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 8th day of June 2004 by the following vote:

AGREEMENT FOR PROFESSIONAL
CONSTRUCTION MANAGEMENT SERVICES
OF RGM AND ASSOCIATES

This Agreement, made and entered into this 8th day of June 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 RGM and Associates with offices located at 3230 Monument Way, California, 94518 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 are to provide to the CITY, professional Construction Management services as indicated by RGM and Associates in Exhibit “A” for The New Recreation Facility / Concession Project, CIP 522-5228 and 522-5230.
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 Jon Novero 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 June 8, 2004 and will terminate upon completion of the project as described within Consultant’s proposal 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. 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 $355,300.

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: RGM and Associates
3230 Monument Way
Concord, CA 94518

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 RGM and Associates

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

APPROVED AS TO FORM:

__________________________
Dennis Beougher, City Attorney

EXHIBIT “A”

BID PROPOSAL
(Scope of Work)

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES

This Agreement made and entered into this 8th day of June 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 Quattrocchi Kwok Architects, with offices at 636 Fifth Street, Santa Rosa, California, 95404, hereinafter referred to as “CONSULTANT”.

RECITALS

A. CITY desires certain professional consultant services for: Design, Documen-tation and construction administrative services, for City of Brentwood “Recreation Facility” Project and Aquatic Center Concession Project. (Recreation Facility, CIP Project No. 522-5228 and Aquatic Center Concession, CIP Project No. 522-5230).

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 and declares that one or more members or employees of its firm and that of its sub-consultants, if any, are licensed by the State of California to perform their services and that these services will be performed by them or under the supervision.

CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT. No sub-consultant will be recognized by OWNER. All sub-consultants shall be deemed to be the agents of the CONSULTANT and CONSULTANT agrees to be responsible for their performance. CONSULTANT shall give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees and sub-consultants, if any and shall keep the work under its control. If any employee or sub-consultant of CONSULTANT fails or refuses to carry out the provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper manner, he or she shall be discharged immediately from the work under this agreement on demand of CITY.

CONSULTANT shall furnish to CITY with every reasonable opportunity for CITY to ascertain that the services of ARCHITECT are being performed in accordance with the requirement and intentions of this Agreement.

It is understood that Mark Quattrocchi 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 be completed as set forth in the attached proposal from CONSULTANT dated May 26, 2004 attached hereto as Exhibit A (“proposal”). CONSULTANT agrees to perform the services within the time limits set forth in the proposal (Exhibit A).

CITY agrees to exercise due diligence in performing its tasks to implement the ARCHITECT’S timetable as stated in Proposal.

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 $225,800.

Retention in the amount of 10% will be held from invoices for each of the design phases of Schematic Design, Design Development, Construction Documents, Bidding and Construction Administration. At the conclusion of each design phase, retention will be released upon City approval of the completed phase. Retention for Construction Administration will be released sixty (60) days after the Project is complete and the City has accepted the Project. Requests for payments shall be itemized and correspond to the various items of work described in the Proposal. Payments for various items of work may be modified with approval of Project Manager so long as there is no change in the maximum contract amount. Payment for extra work or changes in work will not be made unless for work authorized in advance in writing by the City Manager or designee requested verbally by CITY and confirmed in writing by CONSULTANT and approved by CITY within five (5) working days. Prior to commencing such extra work or changes, CONSULTANT and CITY shall agree upon an estimated cost and shall be stated as amount not to exceed cost. In no event shall CONSULTANT be paid for additional work which is necessary because of CONSULTANT’S errors or oversights.

Reimbursable expenses under the Agreement shall not exceed the amount stated in the Proposal without prior written approval by CITY and are included in the not to exceed fee for services under this agreement.

To enable Quattrocchi KWOK Architects and its Design Consultants (“design team”) to design a project that meets this anticipated cost of construction the design team shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the contract documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the construction cost to the anticipated cost of construction.

A fixed limit of “hard” Construction Costs has been established $2,180,500 and if this amount is exceeded by the lowest bona fide bid, the Owner shall:
A. Give written approval of an increase in such fixed limit, or
B. Authorize re-bidding of the Project within a reasonable time, or,
C. Terminate in accordance with the Prime Contract, or
D. The Architect’s (design team) without additional compensation shall modify the documents for which the Design Team is responsible under this Agreement as necessary to comply with the fixed limit. The modification of such documents without cost to the City shall be the limit of the Design Teams responsibility under this paragraph.
Not withstanding any provision of Items A – D above, the Design Team shall be entitled to compensation in accordance with this agreement for all services performed whether or not the Construction Phase is commended.

Any design modifications that would increase the agreed upon established construction costs must be approved in writing by the City Manager or designee and authorized to be included within the scope of work.

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, unless the notice directs otherwise.

Upon termination and upon CITY’S payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall deliver to CITY all data, documents, reports, estimates, summaries and such other information and materials as may have been accumulated by CONSULTANT in performing this Agreement whether completed or in progress 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. CONSULTANT shall be compensated for all authorized work performed prior to notification or termination but no amount shall be allowed for anticipated profit or unperformed services.

CONSULTANT may terminate this Agreement or suspend work on the project upon thirty (30) day written notice to CITY, but only in the event of substantial failure of performance by CITY or in the event CITY abandons of indefinitely postpones the Project. CITY’S failure to make payments to CONSULTANT in accordance with this agreement shall be considered substantial failure of performance and cause for termination.

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.

Owner’s Use. Owner shall have the right, regardless of whether or not this Agreement is completed, suspended or terminated, to use and reuse the Project documents for any purpose in connection with the Project, including but not limited to, original construction, future expansion, renovation, maintenance and repair. In the event CITY performs work or has work performed on its behalf for which CONSULTANT is not retained, CITY shall indemnify, defend, protect and hold CONSULTANT free and harmless from liability, if any, arising from the use of any Project documents by City, including, without limitation any liability to third parties for personal injury, death, or property damage.

Consultant’s Use. Notwithstanding anything to the contrary in the General Conditions, Consultant may reuse plans, drawings, specifications and other data prepared pursuant to the Agreement in its architectural practice, but only in their separate constituent parts and not as a whole, except that Consultant shall not have the right to use any unique or specific constituent parts developed exclusively for City or developed by City for any purpose. In the event Consultant uses any of the plans, drawings, specifications and other data in its architectural practice as authorized herein, Consultant shall indemnify, defend, protect and hold City free and harmless from liability, if any, arising from the use of such plans, drawings, specifications and other data by Consultant, including without limitation, any liability to third parties for personal injury, death or property damage.

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 or gross negligence, or willful misconduct 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 $1,000,000 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 aggregate.
D. Workers Compensation in at least the minimum statutory limits.
E. General Provisions for General Liability 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: Quattrocchi Kwok Architects
636 Fifth Street
Santa Rosa, CA 95404

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 Quattrocchi Kwok Architects
A California Corporation

___________________________ ___________________________
John Stevenson, City Manager Mark Quattrocchi, President


APPROVED AS TO FORM:
______________________________
Dennis Beougher, CITY ATTORNEY

Exhibit A
Scope of Services

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