CITY COUNCIL AGENDA ITEM NO. 3
Meeting Date: May 24, 2005
Subject/Title: Authorize City Manager to enter into professional services
agreement with Freedman Tung and Bottomley to (1) bifurcate the completion
of the Downtown Specific Plan from the completion of the Brentwood Boulevard
Corridor Specific Plan, (2) to eliminate the preparation of a Specific Plan
for Empire Triangle, and (3) to add the Special Planning Area B to the
Brentwood Boulevard Corridor Specific Plan in an amount not to exceed
$53,725 plus 10% contingency, for Capital Improvement Project #337-3200.
Prepared by: Gina Rozenski, Redevelopment Manager
Submitted by: Howard Sword, Community Development Director
Authorize City Manager to enter into professional services agreement with
Freedman Tung and Bottomley to (1) bifurcate the completion of the Downtown
Specific Plan from the completion of the Brentwood Boulevard Corridor
Specific Plan, (2) to eliminate the preparation of a Specific Plan for
Empire Triangle, and (3) to add the Special Planning Area B to the Brentwood
Boulevard Corridor Specific Plan in an amount not to exceed $53,725 plus 10%
contingency, for a total amount of $59,098, for Capital Improvement Project
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 in the amount of $301,622.
A Public Workshop was held on October 2, 2003 to discuss preliminary
planning concepts for the Empire Triangle, Brentwood Boulevard and Downtown
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
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
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.
The City Council approved a second contract with Freedman Tung and
Bottomley in the amount of $198,000 on September 14, 2004, to complete the
Downtown, Brentwood Boulevard and Empire Triangle Specific Plans.
The Brentwood Redevelopment Agency approved a contract with Raney Planning
& Management, Inc., (RPM) in the amount of $115,000 on January 14, 2005, to
prepare the required Environmental Impact Report for the Downtown Specific
It was the original intention to prepare one large Specific Plan document
for three distinct areas: Downtown, Brentwood Boulevard Corridor and Empire
Triangle. The City and its consultants, Freedman Tung and Bottomley (FTB)
and Gruen Gruen + Associates (GG+A), have been working on the preparation of
the Specific Plans for the past two years. The first three months were
primarily spent gathering, photographing and documenting information. The
next four months were spent on City staff and consultant’s efforts to
formulate basic concepts for the Specific Plans and to perform market and
economic analyses. Joint workshops with the Council and Planning Commission,
and community workshops attended by more than 75 people at each, were held
on October 2, 2003, January 27, 2004, February 17, May 19, June 2, June 30
and August 18.
As the Downtown Specific Plan is rapidly progressing to the public hearing
and approval stages, staff has recently identified revisions to the scope of
services that will more effectively address the needs of the City and
community. Three revisions include (1) bifurcation of the Specific Plan into
two documents rather than one; (2) elimination of the Empire Triangle
Specific Plan; and (3) addition of Special Planning Area B to the Brentwood
Boulevard Specific Plan.
DOWNTOWN SPECIFIC PLAN
The vision and recommendations for the Downtown Specific Plan reached
community consensus by the end of the final workshop on June 30, 2004. In
August 2004, the Council and Planning Commission directed staff and
consultants to move forward to complete the technical aspects of the
Downtown Specific Plan.
In January 2005, the Council approved the preparation of a separate EIR for
the Downtown Specific Plan in an effort to keep the project progressing
forward. This action essentially bifurcated the preparation of the Downtown
Specific Plan from the preparation of the Empire Triangle and Brentwood
Boulevard Specific Plan. The EIR’s notice of preparation and scoping meeting
have already occurred. The first administrative draft of the Downtown
Specific Plan prepared by FTB is currently under review by staff. Staff
anticipates the public draft shall be ready for public review and hearings
during the Summer 2005, with completion of EIR in Fall 2005.
FTB’s original scope of work of March 2003 and the additional scope of
September 2004 were both predicated on preparing one master Specific Plan
with three chapters. To bifurcate the completion of the Specific Plans,
additional services are necessary to facilitate additional public hearings,
and to prepare and present separate, stand-alone Plans. Staff requested FTB
to prepare a supplemental scope of work necessary to produce detached
Specific Plans, keeping in mind that the original scope already had
provisions for many of the tasks.
EMPIRE TRIANGLE SPECIFIC PLAN
The basic concepts of regional shopping center, big box development, office
and industrial job centers and necessary circulation for the Empire Triangle
were presented in October 2003 and January 2004 and received community
support. The existing zoning regulations for Empire Triangle already allow
for such uses. Staff believes that by using the existing zoning regulations
for Empire Triangle, the desired development will occur without having to
spend money to prepare a specific plan and EIR for Empire Triangle.
Therefore, staff recommends the City Council approve the elimination of the
Empire Triangle Specific Plan from FTB’s scope of work. A credit has been
allocated by FTB in the attached scope of services and fee.
BRENTWOOD BOULEVARD CORRIDOR SPECIFIC PLAN
The “grand boulevard” and “gateway to Downtown” concepts for Brentwood
Boulevard Corridor received community support and consensus in October 2003
and January 2004. Staff and FTB will soon schedule another public workshop
and a joint City Council / Planning Commission Workshop to confirm the
development concepts for Brentwood Boulevard Corridor. During the past
several months, staff and BART officials have discussed potential locations
for e-BART. As a result, staff recommends the Council now include Special
Planning Area B (located west of Brentwood Boulevard and south of Sand Creek
Road) to the Brentwood Boulevard Corridor scope in an effort to prepare a
comprehensive planning document for the corridor area, including a possible
transit-oriented development. The addition of the expanded study area is
included in the supplemental scope of services attached.
The Specific Plans require a comprehensive degree of detail and demands a
significant amount of community involvement necessary to accomplish
consensus. Staff believes that by bifurcating the Downtown Specific Plan
from the completion of the Brentwood Boulevard Corridor Specific Plan, by
eliminating the preparation of an Empire Triangle Specific Plan, and by
adding Special Planning Area B to the Brentwood Boulevard Corridor scope,
the City shall achieve outstanding work products that will guide the
successful development of two important Specific Plan areas.
Staff is proposing the City Manager be authorized to execute the contract in
the amount of $53,725 and change orders up to 10% of the contract amount,
for a not-to-exceed amount of $59,098, for the revised scope of services
described above. This amount is budgeted in the 2005/06 expenditures for
this Capital Improvement Project #337-3200.
Attachments: Professional Services Agreement and Scope of Services
AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES
OF FREEDMAN TUNG & BOTTOMLEY.
This Agreement, made and entered into this 15th day of June, 2005, by and
between THE CITY OF BRENTWOOD, a municipal corporation existing under the
laws of the State of California, hereinafter referred to as “CITY”, and
Freedman Tung & Bottomley., located at 74 Montgomery Street, Suite 300, San
Francisco California, 94105 hereinafter referred to as CONSULTANT”.
A. CITY desires certain planning and preparation services in connection with
the work referred to as Brentwood Boulevard Specific Plan.
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 the preparation of the Brentwood Boulevard Specific Plan, 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, Principal and Ian Ross, Senior
Associate, will be the designated representatives providing services to the
CITY and this designated representatives shall not be replaced without the
SECTION 3 – DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the
CITY shall examine documents submitted by CONSULTANT and shall render
decisions pertaining thereto promptly, to avoid unreasonable delay in the
progress of CONSULTANT’S work.
SECTION 4 – TERM
The services to be performed under this agreement shall commence on the date
the City Council approves this and shall expire upon completion of the
Services or when terminated as provided in Section 6.
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
SECTION 6 – TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have
by law, CITY shall have the right to terminate this agreement or suspend
work on the Project for any reason upon ten (10) days’ written notice to
CONSULTANT. CONSULTANT agrees to cease all work under this agreement upon
receipt of said written notice.
Upon termination and upon CITY’S payment of the amount required to be paid,
documents become the property of CITY, and CONSULTANT shall transfer them to
CITY upon request without additional compensation. Upon termination or
expiration of this agreement, the obligations of the parties shall cease,
save and except from those provided under Sections 7,8,10, 11, 12, 14, 15,
SECTION 7 – OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this agreement,
although instruments of professional service, are and shall be the property
of CITY, whether the project for which they are made is executed or not. Use
of the instruments of professional service by CITY for other than the
project, is at CITY’S sole risk without legal liability or exposure to
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the
performance of this agreement are confidential until released by CITY to the
public. CONSULTANT shall not make any such documents or information
available to any individual or organization not employed by CONSULTANT or
CITY without the written consent of CITY before any such release.
SECTION 9 – INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not
acquire any interest, direct or indirect, financial or otherwise, which
would conflict in any manner or degree with the performance of the services
under this agreement.
SECTION 10 – CONSULTANT’S STATUS
It is expressly agreed that in the performance of the professional services
required under this agreement, CONSULTANT shall at all times be considered
an independent contractor as defined in Labor Code Section 3353, under
control of the CITY as to the result of the work but not the means by which
the result is accomplished. Nothing herein shall be construed to make
CONSULTANT an agent or employee of CITY while providing services under this
SECTION 11 – INDEMNITY
CONSULTANT, in the performance of professional services, under this
Agreement shall indemnify, defend, and hold harmless CITY, its directors,
officers, employees and agents from any claim, loss, injury, damage, and
expense and liability to the extent arising out of the negligence, errors,
omissions, or wrongful acts of CONSULTANT, its employees, subcontractors, or
agents. For liability for other liability arising out of professional
services, CONSULTANT shall indemnify, defend, and hold harmless, CITY, its
directors, officers, employees, and agents from any loss, injury, damage,
and expense and liability resulting from injury to or death of any person
and loss of or damage to property, or claim of such injury, death, loss or
damage, caused by an act or omission in the performance under this Agreement
by CONSULTANT, its employees, subcontractors, or agents, except for any
loss, injury, or damage caused by the active negligence or willful
misconduct of personnel employed by CITY.
SECTION 12 – INSURANCE
The CONSULTANT shall provide and maintain:
A. Commercial General Liability Insurance, occurrence form, with a limit of
not less than $1,000,000 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
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
2. Be primary with respect to any insurance or self-insurance programs of
City, CITY, its officers, employees, and volunteers.
3. Be evidenced, prior to commencement of services, by properly executed
policy endorsements in addition to a certificate of insurance.
4. No changes in insurance may be made without the written approval of the
City Attorney's Office.
SECTION 13 - NONASSIGNABILITY
Personal Services of Consultant: Both parities hereto recognize that this
agreement is for the personal services of CONSULTANT and cannot be
transferred, assigned, or subcontracted by CONSULTANT without the prior
written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that
CONSULTANT is skilled in the professional calling necessary to perform the
work and will perform the work agreed to be done under this agreement
utilizing a specialist standard of care and that CITY relies upon the skill
of CONSULTANT to do and perform the work in the most skillful manner, and
CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT'S
work by CITY does not operate as a release of consultant from said
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant,
or condition of this agreement or of any provisions of any ordinance or law
shall not be deemed to be a waiver of such term, covenant, condition,
ordinance or law or of any subsequent breach or violation of same or of any
other term, covenant, condition, ordinance or law or of any subsequent
breach or violation of the same or of any other term, condition, ordinance,
or law. The subsequent acceptance by either party of any fee or other money
which may become due hereunder shall not be deeded to be a waiver of any
preceding breach or violation by the other party of any term, covenant, or
condition of this agreement of any applicable law or ordinance.
SECTION 16 - COSTS AND ATTORNEYS FEES
Attorney fees in an amount not exceeding $85 per hour per attorney, and in
total amount not exceeding $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
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: Freedman Tung & Bottomley
74 New Montgomery Street
San Francisco, CA 94105
SECTION 22 – AGREEMENT CONTAINS ALL
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
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.
BRENTWOOD REDEVELOPMENT CONSULTANT
DONNA LANDEROS, MICHAEL FREEDMAN
CITY MANAGER PRINCIPAL
APPROVED AS TO FORM:
Tom Curry, Interim City Attorney