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CITY COUNCIL AGENDA ITEM NO. 10

Meeting Date: August 10, 2004

Subject/Title: Approve a Resolution authorizing the City Manager to execute a Professional Services Agreement for the New City Hall, CIP Project No. 337-3139.

Prepared by: Engineering: M. Huber

Submitted by: Economic Development: H. Sword

RECOMMENDATION
Approve a Resolution authorizing the City Manager to execute a Professional Services Agreement with RGM and Associates in an amount of $124,894, including a 10% contingency for pre-construction services of the New City Hall, CIP Project No. 337-3139.

PREVIOUS ACTION
On May 27, 2003, City Council approved the 2003/2008 Capital Improvement Program and appointed Mayor Brian Swisher and Councilmember Bill Hill to the New City Hall Ad Hoc Committee.

On July 22, 2003, City Council authorized staff to negotiate an Architectural Services Contract with Kaplan McLaughlin Diaz (KMD) to begin the site selection and programming process.

On August 26, 2003, City Council approved the negotiated contract with KMD to begin the site selection and programming process for the New City Hall Project.

On October 14, 2003, City Council approved and authorized the use of the New City Hall Project Goals and Objectives.

On January 27, 2004, City Council approved the Design Contract with KMD to begin the design for the New City Hall project.

On April 13, 2004, City Council set the date of May 4, 2004, for a joint workshop between the Planning Commission and City Council to view the schematic design for the New City Hall.

On May 11, 2004, City Council set the date of May 25, 2004, for a joint workshop between the Planning Commission and City Council to view the schematic design for the New City Hall project.

On June 8, 2004, City Council approved the 100% schematic design for the New City Hall, CIP Project No. 337-3139 and directed staff to design the project as approved.

BACKGROUND
Staff is requesting RGM and Associates to assist in the project planning, pre-construction services, including constructability and estimating review for this project. This process minimizes the field changes and contract change orders; hence, cost and time savings for the project. 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, the recently completed 120 Oak Street project (Engineering Annex) and are currently working with staff on the New Police Station project.

FISCAL IMPACT
The funds associated with this work are included in the recently adopted Capital Improvement Program 2004/2009. No budget modifications are required at this time. The fiscal impact to the project is $124,894.

Attachments:
Resolution
Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH RGM AND ASSOCIATES IN AN AMOUNT OF $124,894, INCLUDING A 10% CONTINGENCY FOR PRE-CONSTRUCTION SERVICES OF THE NEW CITY HALL, CIP PROJECT NO. 337-3139.

WHEREAS, on May 27, 2003, City Council approved the 2003/2008 Capital Improvement Program and appointed Mayor Brian Swisher and Councilmember Bill Hill to the New City Hall Ad Hoc Committee; and

WHEREAS, on July 22, 2003, City Council authorized staff to negotiate an Architectural Services contract with Kaplan McLaughlin Diaz (KMD) to begin the site selection and programming process; and

WHEREAS, on August 26, 2003, City Council approved the negotiated contract with KMD to begin the site selection and programming process for the New City Hall Project; and

WHEREAS, on October 14, 2003, City Council approved and authorized the use of the New City Hall Project Goals and Objectives; and

WHEREAS, on January 27, 2004, City Council approved the Design Contract with KMD Architecture to begin the design for the New City Hall project.

WHEREAS, on April 13, 2004, City Council set the date of May 4, 2004 for a joint workshop between the Planning Commission and City Council to view the schematic design for the New City Hall; and

WHEREAS, on May 11, 2004, City Council set the date of May 25, 2004 for a joint workshop between the Planning Commission and City Council to view the schematic design for the New City Hall project; and

WHEREAS, on June 8, 2004, City Council approved the 100% schematic design for the New City Hall, CIP Project No. 337-3139 and directed staff to design the project as approved.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood that the City Manager is authorized to execute a Professional Services Agreement with RGM and Associates for the New City Hall, CIP Project No. 337-3139.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 10th day of August 2004 by the following vote:

AGREEMENT FOR PROFESSIONAL QUALITY ASSURANCE SERVICES OF
RGM AND ASSOCIATES

This Agreement is made and entered into this 10th day of August 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, Concord, CA 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 is to provide to the CITY, professional services as provided by CONSULTANT as Exhibit “A” for the New City Hall, CIP Project No. 337-3139.

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 August 10, 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 $124,894.

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 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 sole 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: RGM and Associates
3230 Monument Way
Concord, CA 94518

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
__________________________ John Stevenson, City Manager

___________________________ (Print Name)

___________________________RGM AND ASSOCIATES

APPROVED AS TO FORM:


__________________________
Dennis Beougher, City Attorney

EXHIBIT “A”

PROPOSAL
(Scope of Work - Fees)
 

City Administration
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Brentwood, CA 94513
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E-mail allcouncil@brentwoodca.gov