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CITY COUNCIL AGENDA ITEM NO. 9

Meeting Date: September 14, 2004

Subject/Title: Authorize the City Manager to enter into professional services agreements with Freedman Tung and Bottomley and Gruen Gruen + Associates to complete the Downtown, Brentwood Boulevard and Empire Triangle Specific Plans, in the amounts not to exceed $180,000 and $65,000 respectively, with 10% contingencies

Submitted by: Howard Sword, Economic Development Director

Approved by: John Stevenson, City Manager

RECOMMENDATION
Authorize the City Manager to enter into professional services agreements with Freedman Tung and Bottomley and Gruen Gruen + Associates to complete the Downtown, Brentwood Boulevard and Empire Triangle Specific Plans, in the amounts not to exceed $180,000 and $65,000 respectively, with 10% contingencies for total amounts of $198,000 and $71,500.

PREVIOUS ACTION

 The City Council on March 11, 2003 approved a contract with Freedman, Tung and Bottomley to prepare Specific Plans for the Empire Triangle, Brentwood Boulevard and Downtown areas.

 A Public Workshop was held on October 2, 2003 to discuss preliminary planning concepts for the Empire Triangle, Brentwood Boulevard and Downtown Specific Plans.

 The City Council and Planning Commission on January 27, 2004 held a joint Workshop to review the progress of the Empire Triangle, Brentwood Boulevard and Downtown Specific Plans.

 The City Council and Planning Commission on February 17, 2004 held a joint Workshop to review the progress of the Empire Triangle, Brentwood Boulevard and Downtown Specific Plans.

 A Public Workshop was held May 19, 2004 for the community to provide input on the visual character and economic conditions of the Downtown Specific Plans.

 A Public Workshop was held June 2, 2004 for the community to further discuss the visual character and the Brentwood Way for the Downtown Specific Plan.

 A Public Workshop was held June 30, 2004 for the community to finalize their recommendations on the visual character and economic conditions of the Downtown Specific Plan.

 A joint City Council / Planning Commission Workshop was held August 18, 2004 to present the consultant’s recommendations on visual character, economic conditions and the Brentwood Way for the Downtown Specific Plan.

BACKGROUND
The City and its consultants, Freedman Tung and Bottomley and Gruen Gruen + Associates, have been working on the preparation of the Downtown, Brentwood Boulevard and Empire Triangle Specific Plans for the past eighteen months. The first three months were primarily spent on the consultants’ efforts to gather and document background information. The next four months were spent on City Staff and consultants’ efforts to formulate basic concepts for the Specific Plan. A Public Workshop was held on October 2, 2003 to present these basic concepts. Staff and consultants thought that the concepts presented were well received. Some criticism was made that the public noticing for the Workshop was not extensive enough and Staff advertised the next Public Workshop on January 27, 2004 with a full page advertisement in the Brentwood Press. More fully developed concepts from the October 2, 2003 Workshop were presented at the second Workshop and although there were comments expressing some concerns Staff still thought, at that time, that there was basic community acceptance the concepts presented.

The Staff / Consultant team were surprised at the number of negative comments that the community expressed regarding the Downtown Specific Plan at the February 17, 2004 joint City Council / Planning Commission Workshop. It was quite obvious to everyone that participated at that Workshop that some members of the community were not comfortable with the direction of the Downtown Plan and further work was going to be necessary for broad acceptance. Staff received some very helpful insights from members of the Council and Commission and realized that the some members of the community felt that the visual, experiential and historic character of the Downtown was threatened by some of the proposed concepts in the Specific Plan.

The Staff / Consultant team scheduled a series of three Public Workshops that were specifically designed to be highly participatory and address not only the subject of the appropriate visual character of the Downtown but also the economic conditions and reality that were driving some of the land use recommendations. The Public Workshops, very extensively advertised and well attended, were held on May 19, June 2 and 30, 2004. It was obvious by the end of the final Workshop that community consensus had been achieved supporting the vision and recommendations for the Downtown Specific Plan. A joint City Council / Planning Commission meeting held August 18, 2004 endorsed the vision and recommendations for the Downtown Specific Plan and Staff was directed to move forward to complete the technical aspects of the work.

Staff believes that the basic concepts for the Empire Triangle and Brentwood Boulevard Specific Plans presented last October and January have community support and will hold one or two Public Workshops and a joint City Council / Planning Commission Workshop to confirm this belief.

The status of the contract with the consultants needs to be revisited. Freedman Tung and Bottomley initially proposed an all inclusive lump sum contract proposal for $750,000. Staff was divided regarding the amount of the proposal with some members thinking that it was an appropriate amount for the scope of work while others felt that the scope of work was inflated. Several discussions were held with the consultant and subsequent proposals submitted. The City finally determined it would spend approximately $300,000 on the project and instructed the consultant to prepare a scope of work to address that amount. Needless to say that the scope of work was very definitive pertaining to the deliverables but a contract was executed referencing it for $274,202 plus a 10 % contingency of $27,420 for a total of $301,622.

The Economic Development Director, the chief proponent in the reduced scope of services, took over the project management of the Specific Plans in early fall of 2003 when the Community Development Director could no longer fill that function due to personal circumstances. It became obvious very soon that the detailed line items in the scope of work was not going to provide the City with an acceptable end work product. This fact became even more apparent when the initial community Workshops did not produce consensus. The consultant was approached with the concerns about the project budget earlier this year but it was mutually determined best to see where additional community input brought the process before re-scoping the project.

The project, at this time, appears to have achieved community acceptance and the Staff / Consultant team is confident that the proposed budget of $269,500 is adequate to complete the planning and economic work for the Specific Plans. There will be additional environmental work necessary for the adoption of the Specific Plans but this scope of work will not be determined until a draft Specific Plan is completed.

A final comment to the background of this report is that its author, the Economic Development Director, acknowledges that he underestimated (1) the comprehensive degree of detail that the consultant wished to include in the Plans, (2) the scope of work necessary to accomplish that degree of detail and (3) the amount of community involvement necessary to accomplish consensus. With that said, it is Staff’s belief that we are achieving an outstanding work product that will guide the successful development of the three Plan areas.

FISCAL IMPACT
The Finance Department created the Special Projects fund (account 337.3200) of $728,778 to fund the Specific Plans and a revision of the Zoning Ordinance. The revision of the Zoning Ordinance was anticipated to cost approximately $400,000 but as can be seen in another Staff Report on this Agenda the City is going to contract for this work for $105,688. This leaves a fund balance of $623,090. To date FTB has billed $309,590 which would leave a fund balance of $313,500. The proposed budget for completion of the Specific Plans is $269,500 which would leave a fund balance of $44,000.

The above referenced environmental work necessary for the adoption of the Specific Plans will probably require a full EIR since we will be changing land use designations in the General Plan. This EIR will probably cost approximately $140,000 which exceeds the Special Projects fund balance. The Redevelopment Agency, which is very involved in the Specific Plans, has $290,000 of Tax Allocation Bond proceeds budgeted for consultant services which would be very appropriate to use to fund the remaining environmental work. Staff will bring an update to Council on this matter when the EIR scope of work is determined.

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES
OF FREEDMAN TUNG & BOTTOMLEY

This Agreement, made and entered into this 14th day of September, 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 Freedman Tung & Bottomley, located at 74 New Montgomery St., Suite 300, San Francisco, California, 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 for professional services to complete the preparation and project management of Specific Plans for Downtown, Brentwood Corridor, and Empire Triangle as outline in attached scope and as may be required by the CITY.

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.

CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.

It is understood that Michael Freedman 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 immediately upon execution of agreement and complete within ten (10) months, depending on required environmental review.

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 with the rates set forth in Exhibit “A” not to exceed $198,000 ($180,000 plus 10% contingency).

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 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 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 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 $5,000 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 $5,000 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 $5,000 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
Phone: 925.516.5400

To CONSULTANT: Freedman Tung & Bottemley
74 New Montgomery Street
Suite 300
San Francisco, CA 94105
Phone: 415-291-9455

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 CONSULTANT

___________________________ ___________________________
JOHN STEVENSON, CITY MANAGER MICHAEL FREEDMAN, PRINCIPAL


APPROVED AS TO FORM:

__________________________
Dennis Beougher, City Attorney

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES
OF GRUEN GRUEN & ASSOCIATES

This Agreement, made and entered into this 14th day of September, 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 Gruen Gruen & Associates, located at 564 Howard Street, San Francisco, California, hereinafter referred to as CONSULTANT”.

RECITALS

C. CITY desires certain professional consultant services hereinafter described.

D. 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 for professional services to prepare marketing and economic research and analysis to complete the preparation of Specific Plans for Downtown, Brentwood Boulevard Corridor and Empire Triangle as outline in attached scope, as may be required by the CITY.

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.

CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.

It is understood that Claude Gruen 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 immediately upon execution of agreement and complete within ten (10) months, depending on required environmental review.

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 with the rates set forth in Exhibit “A” not to exceed $71,500 ($65,000 plus 10% contingency).

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:

F. 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.

G. Automobile Liability Insurance, occurrence form, with a limit of not less than $500,000 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles.

H. Errors and omissions insurance in the minimum amount of $1,000,000 aggregate.

I. Workers Compensation in at least the minimum statutory limits.

J. General Provisions for all insurance. All insurance shall:

5. 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.
6. Be primary with respect to any insurance or self-insurance programs of City, its officers, employees, and volunteers.

7. Be evidenced, prior to commencement of services, by properly executed policy endorsements in addition to a certificate of insurance.

8. 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 $5,000 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 $5,000 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 $5,000 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
Phone: 925.516.5400

To CONSULTANT: Gruen Gruen & Associates
564 Howard Street
San Francisco, CA 94105
Phone: 415-433-7598

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 CONSULTANT

___________________________ ___________________________
JOHN STEVENSON, CITY MANAGER CLAUDE GRUEN,
PRINCIPAL ECONOMIST

APPROVED AS TO FORM:

__________________________
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
E-mail allcouncil@brentwoodca.gov