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Current Council Agenda and Past Meeting Information

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

RECOMMENDATION
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 #337-3200.

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 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 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.

 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 Plan.

BACKGROUND
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.

SUMMARY
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.

FISCAL IMPACT
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”.

RECITALS

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 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 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 $53,725.

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, 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 & Bottomley
74 New Montgomery Street
Suite 300
San Francisco, CA 94105

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.

BRENTWOOD REDEVELOPMENT CONSULTANT
CITY
___________________________ ___________________________
DONNA LANDEROS, MICHAEL FREEDMAN
CITY MANAGER PRINCIPAL

APPROVED AS TO FORM:
__________________________
Tom Curry, Interim 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