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Current Council Agenda and Past Meeting Information



Meeting Date: July 27, 2004
Subject/Title: Authorize the City Manager to execute a Professional Services Agreement with Seifel Consultants, Inc., in an amount not to exceed $153,500 for the review and analysis of Ordinance 756.

Prepared by: Ellen Bonneville, Housing Manager

Submitted by: Howard Sword, Economic Development Director

Authorize the City Manager to execute a professional services agreement with Seifel Consultants, Inc. in an amount not to exceed $153,500 for the review and analysis of Ordinance 756.

On September 9, 2003, the City Council adopted Ordinance 756 creating the City of Brentwood Affordable Housing Program.

On May 25, 2004, the City Council directed staff to move forward with an economic analysis to support recommendations to amend the City’s Affordable Housing Ordinance 756. In that report, staff recommended using Seifel Consulting, Inc. for these services.

The staff report presented to the City Council on May 25, 2004 outlined and summarized some of the issues and concerns that staff has encountered in implementing the City’s Affordable Housing Ordinance 756. That report also indicated that staff met with Libby Seifel of Seifel Consultants who is one of the experts in the Bay Area on inclusionary and affordable housing issues. Staff has negotiated with Seifel Consultants over the past six weeks and reviewed several iterations of this comprehensive scope of work. Staff believes that the attached scope of work will provide the City with a thorough analysis of the Ordinance to make it friendlier to both the development community and target households, while also effectively meeting the City’s affordable housing goals.

Seifel Consultants shall prepare and provide the economic and market analyses to guide our discussions and strategies regarding potential modifications to the Ordinance for Council consideration. Since the intent of the Ordinance is to provide safe, sanitary and decent housing to all segments of our community we will take a look at potentially refining the Ordinance to do so in a more efficient manner. Staff and consultant will also provide other possible programs for Council consideration and review such as a First Time Homebuyer Program (shared equity program) and a Rehabilitation Program for existing homes. The Scope of Work also includes a technical report to support the requirements of the Ordinance, needs analysis for all income categories including moderate and all other necessary analyses of the current Ordinance to address the concerns raised by developers as to the potential economic impacts of the Ordinance to their subdivisions.

Analyses will also be conducted on the City rental program such as adding language that will specify that units dedicated to the City must be in “turnkey” condition and looking at which City fees should be paid by the developer and which should be paid by the City for dedicated rental units. Seifel will analyze the rental program’s business plan for projected expenses and revenues, and make recommendations based on cash flow and cost recovery findings.

The anticipated time frame for all of the analyses is approximately 4 months. During this four-month period the interim adjustments to the Ordinance approved by the City Council on May 25, 2004 will remain in force. These interim adjustments included:

• Affordable Housing Agreements be placed on the City Council consent calendar for approval;
• A balanced program of in-lieu fees, for-sale housing, and dedicated rental units be continued at the 50% requirement level for all residential projects until such time as staff returns with amendments to the Affordable Housing Ordinance, based on analyses and guidance from Seifel Consultants and;
• Residential projects with lots that have an average size of 8500 square feet or more shall be eligible to pay in-lieu fees for very low and low income units.

Staff and consultant will provide the results of all of the analyses and any potential recommended modifications to the Ordinance to the City Council in a future joint work session with the Planning Commission.

Funding for these services is budgeted in the 2004/2005 fiscal year in Housing Administration Fund 510.

Professional Services Agreement


This Agreement, made and entered into this 27th day of July, 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 Seifel Consultants, Inc., located at 1388 Sutter Street, Suite 520, San Francisco, California 94109-5452, hereinafter referred to as CONSULTANT”.


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.



The scope of services to be performed by CONSULTANT under this agreement is for professional services to provide advisory services relating to the potential amendment and implementation of the inclusionary housing ordinance of the City of Brentwood. The primary goal for the proposed services is to assist the City of Brentwood in providing housing that is affordable to its population.


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 Elizabeth Seifel, President will be the designated representative providing services to the City and this designated representative shall not be replaced without the City’s approval.


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.


The services to be performed under this agreement shall commence on July 27, 2004.


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 with the rate set forth in Exhibit “A” not to exceed $153,500.


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.


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.


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.


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.


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.


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.


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 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.


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.


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.


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.


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.


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.


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.


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.


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.


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: Elizabeth Seifel, President
Seifel Consulting, Inc.
1388 Sutter Street, Suite 520
San Francisco, CA 94109-5452


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


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.

___________________________ ___________________________
John Stevenson, City Manager Elizabeth Seifel, President,

Dennis Beougher, City Attorney



City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441