CITY COUNCIL AGENDA ITEM
Meeting Date: June 28, 2005
Subject/Title: Approve an amendment to an existing Contract for Professional
Services and authorize the City Manager to execute a Change Order increasing
the Purchase Order to an amount not to exceed $55,000 for CBIZ Marketing
Prepared by: Diane Porter, Administrative Secretary
Submitted by: Howard Sword, Community Development Director
Approve an amendment to an existing Contract for Professional Services and
authorize the City Manager to execute a Change Order increasing the Purchase
Order to an amount not to exceed $55,000 for CBIZ Marketing Services Group
to provide marketing research for the City of Brentwood.
On January 27, 2004, City Council approved a Contract for Professional
Services agreement in an amount not to exceed $40,000 with CBIZ Marketing
Services Group to prepare Phase 1 marketing research and develop a detailed
Communication and Public Relations Plan.
Since January of 2004, CBIZ Marketing Services Group has been providing
marketing services for two different scopes of work for the City. The
original Professional Services Agreement was drawn to provide “Phase 1”
marketing research and surveys to develop a detailed Marketing Assessment
document, then City staff requested additional services from CBIZ regarding
future strategies associated with the Marketing Assessment document.
Concurrently, CBIZ was asked to develop marketing materials for the Specific
Plan Community Workshops and attend staff meetings regarding specific plans.
The total amount of fees associated with services provided by CBIZ has
exceeded the original contract of $40,000.
None. The fiscal impact is partially off-set by $10,000 in Business License
Tax City Grant Funds awarded in April, 2005, and the remainder is already in
the 2004-05 operating budget.
Purchase Order Manifest
Scope of Work/Expense Breakdown Report for CBIZ
AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES
This Agreement, made and entered into this 28th day of June, 2005, by and
between the CITY OF BRENTWOOD municipal corporation existing under the laws
of the State of California, hereinafter referred to as “CITY”, and CBIZ
MARKETING SERVICES GROUP, with offices located at 84 s. First Street, 3rd
Floor, San Jose, California, hereinafter referred to as CONSULTANT”.
A. CITY desires certain professional consultant services hereinafter
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.
C. CITY recognizes the Professional Services Agreement dated the 28th day of
January, 2004, for “Phase 1” marketing research in place, and desires
additional services from CBIZ regarding future strategies associated with
the Marketing Assessment document.
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 provide additional marketing services regarding
future strategies associated with the Marketing Assessment document, 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 Mark Waxman, Senior Vice President National Marketing,
CBIZ Marketing Services Group 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
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 continue immediately
upon execution of this agreement and be completed as set forth 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 at the rates and for the hours actually performed by the
CONSULTANT as set forth in the original contract, not to exceed an
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 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 $500,000.00 each occurrence. Such insurance shall include coverage for
owned, hired, and non-owned automobiles.
C. Workers Compensation in at least the minimum statutory limits.
D. 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, 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 $5000, shall be recoverable as costs (by the
filing of a cost bill) by the prevailing party in any action or actions to
enforce the provisions of the agreement. The above $5000 limit is the total
of attorneys’ fees recoverable whether in the trial court, appellate court,
or otherwise, and regardless of the number of attorneys, trials, appeals, or
actions. It is the intent of this agreement that neither party shall have to
pay the other more than $5000 for attorneys’ fees arising out of an action,
or actions to enforce the provisions of this agreement.
SECTION 17 - NON-DISCRIMINATION
CONSULTANT warrants that is an Equal Opportunity Employer and shall comply
with applicable regulations governing equal employment opportunity. Neither
CONSULTANT nor any of its subcontractors shall discriminate in the
employment of any person because of race, color, national origin, ancestry,
physical handicap, medical condition, marital status, sex, or age, unless
based upon a bona fide occupational qualification pursuant to the California
Fair Employment and Housing Act.
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: Mark Waxman, Sr. Vice President
CBIZ Marketing Services Group
84 South First Street, 3rd Floor
San Jose, CA 95113
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.
CITY OF BRENTWOOD CONSULTANT
Donna Landeros, City Manager Mark Waxman, Sr. Vice President
Cindy Garcia, Interim City Clerk
APPROVED AS TO FORM:
Tom Curry, Interim City Attorney