CITY COUNCIL AGENDA ITEM
Meeting Date: July 26, 2005
Subject/Title: Authorize the City Manager to execute a Professional Services
Agreement with the Buxton Company in an amount not to exceed $50,000 for
market research services.
Prepared by: Linda Maurer, Economic Development Manager
Submitted by: Howard Sword, Community Development Director
Authorize the City Manager to execute a professional services agreement with
the Buxton Company in an amount not to exceed $50,000 for market research
No previous action regarding this item.
Since early 2004, the City of Brentwood’s Economic Development Division has
been working with the Buxton Company to compile market research information
on the demographics and psychographics of residents in the Brentwood retail
trade area. The value proposition of Buxton’s services is the ability to
analyze retail sites/trade area in the same manner in which most retailers
and/or restaurants do. The benefit for the City is that this sophisticated
data and analysis is the most accurate way to clearly identify, develop and
market retail sites for their highest and best use.
The first phase of the project is complete and the report has been submitted
to staff for review. Specifically, the first phase of the project is
intended to measure Brentwood’s potential to recruit new retailers,
including restaurants. Three retail sites were identified and selected for
analysis. These areas include:
1. Sand Creek Road and the Highway 4 Bypass
2. Balfour Road and Concord Avenue
3. Brentwood Blvd. and Oak Street
The findings from the first phase of the analysis are extremely positive.
The analysis shows that population density and growth rates, as well as the
higher incomes near the selected sites will support the interest of new
retailers and restaurants. Moreover, the first site – Sand Creek Road and
the Highway 4 Bypass – scored highest in overall demand for goods and
services at nearly $3 billion, compared to the other sites at just $2
billion each. The Sand Creek Road/Bypass site has been recommended for
further study for the second phase of this project, which will ultimately
result in the matching of appropriate and desirable retailers/restaurants in
These recommendations from Buxton’s efforts will largely serve as the basis
for the Economic Development division’s retail attraction activities,
particularly as it relates to the attraction of high-end retailers. The
retail analysis project was fully funded in the 2004-05 budget.
As we continue to build on Brentwood’s retail momentum, staff is now eager
to begin the next phase of the needed market analysis, which is to
understand the market for automotive sales, particularly the feasibility of
auto dealerships locating in Brentwood. Automotive sales draw populations
from a larger trade area; therefore requiring special analysis not covered
under general retail market research. Staff is seeking additional funds in
the amount of $50,000 to cover the cost of this new market analysis. Once
completed, this analysis will provide staff with the needed tools to
identify, develop and market an auto mall near the burgeoning regional
retail shopping area at Lone Tree Way and the Highway 4 bypass.
Staff believes that there is a sense of urgency to begin work on this task
as soon as possible, given that the City has had inquiries from automotive
dealers. Staff wants to ensure that the City attracts the appropriate
dealerships and identifies the appropriate location for these uses to
complement the existing and future retail development activities. Further,
staff understands that the cost to conduct the analysis will rise
significantly, from $50,000 to $70,000, due to increased costs in obtaining
the detailed demographic spending data patterns, if the agreement is not
executed on the dates listed in the scope of work.
Funding for these services will be covered in the 2005/06 City Manager’s
Contingency budget. The amount requested is based on a proposal received by
the Buxton Company for their professional services. This is a one-time
charge. There is no offsetting revenue at this time; however, the
establishment of an auto mall will generate significant sales tax revenue to
the City in the future. Staff does not foresee any future reduction of the
costs to this project.
Professional Services Agreement
AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES
This Agreement for Professional Consultant Services (“Agreement”), made and
entered into this 12 day of July, 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 Buxton Company, with
offices in Fort Worth, Texas (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.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 – SCOPE OF SERVICES
1.1 The scope of services to be performed by CONSULTANT under this Agreement
is for professional services on an as-needed basis for AutoID Analysis
services, as may be required by the CITY.
SECTION 2 – DUTIES OF CONSULTANT
2.2 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.
2.3 CONSULTANT represents that it is qualified to furnish the services
described under this Agreement.
2.4 CONSULTANT shall be responsible for employing or engaging all persons
necessary to perform the services of CONSULTANT.
2.5 It is understood that Patricia Bell 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
3.1 CITY shall provide pertinent information regarding its requirements for
3.2 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
4.1 The services to be performed under this Agreement shall commence on
August 10, 2005 and be completed on October 12, 2005.
SECTION 5 – PAYMENT
5.1 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 in accordance with the rates set forth in
Exhibit “A” not to exceed Fifty Thousand dollars and no cents $50,000 plus
10% contingency. A $25,000 deposit is due upon execution of this agreement
and the balance of $25,000 will be due upon delivery of the results of this
SECTION 6 – TERMINATION
6.1 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.
6.2 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
7.1 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
8.1 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
9.1 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
10.1 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
11.1 CONSULTANT, in the performance of professional services, under this
Agreement shall indemnify, defend, and hold harmless CITY, its directors,
officers, employees and agents from any claim, loss, injury, damage, and
expense and liability to the extent arising out of the negligence, errors,
omissions, or wrongful acts of CONSULTANT, its employees, subcontractors, or
agents. For other liability arising out of professional services, CONSULTANT
shall indemnify, defend, and hold harmless, CITY, its directors, officers,
employees, and agents from any loss, injury, damage, and expense and
liability resulting from injury to or death of any person and loss of or
damage to property, or claim of such injury, death, loss or damage, caused
by an act or omission in the performance under this Agreement by CONSULTANT,
its employees, subcontractors, or agents, except for any loss, injury, or
damage caused by the sole negligence or willful misconduct of personnel
employed by CITY.
SECTION 12 – INSURANCE
12.1 The CONSULTANT shall provide and maintain project specific insurance:
A. Commercial General Liability Insurance, occurrence form, with a limit of
not less than $1,000,000.00 each occurrence. If such insurance contains a
general aggregate limit, it shall apply separately to this Agreement or be
no less than two (2) times the occurrence limit.
B. Automobile Liability Insurance, occurrence form, with a limit of not less
than $500,000.00 each occurrence. Such insurance shall include coverage for
owned, hired, and non-owned automobiles.
C. Errors and omissions insurance in the minimum amount of $1,000,000.00
D. Workers Compensation in at least the minimum statutory limits.
E. General Provisions for insurance. All liability and auto 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 or designee.
SECTION 13 - NONASSIGNABILITY
13.1 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
14.1 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 agreed to be done under this Agreement 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
SECTION 15 - WAIVERS
15.1 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
16.1 Attorneys’ fees in an amount not exceeding $85.00 per hour per
attorney, and in total amount not exceeding $5,000.00, shall be recoverable
as costs (by the filing of a cost bill) by the prevailing party in any
action or actions to enforce the provisions of this Agreement. The above
$5,000.00 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 $5,000.00 for
attorneys’ fees arising out of an action, or actions to enforce the
provisions of this Agreement.
SECTION 17 - NON-DISCRIMINATION
17.1 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
18.1 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 the 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"
18.2 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
19.1 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
20.1 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
21.1 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: Buxton Company
2651 South Polaris Drive
Fort Worth, TX 96137-4479
SECTION 22 – AGREEMENT CONTAINS ALL
22.1 This Agreement represents the entire and integrated agreement between
CITY and CONSULTANT and supersedes all prior negotiations, representations,
and agreements, either written or oral.
22.2 This Agreement may be amended only by written instrument, signed by
both CITY and CONSULTANT.
SECTION 23 – GOVERNING LAW
23.1 This Agreement shall be governed by the laws of the State of
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 David Glover, Chief Financial Officer
Cynthia Garcia, Interim City Clerk
APPROVED AS TO FORM:
Tom Curry, City Attorney
City of Brentwood
June 9, 2005
Prepared by: Patricia Bell
Expiration Date: August 15, 2005
TABLE OF CONTENTS
Executive Overview 2
Scope of Services
A. Demographics & Maps 3
B. Segmentation Profile & Analysis 3
C. Co-tenant Analysis 3
D. Trade Area Sales 3
E. Appendix B: National Auto Market Trends 3
F. Appendix C: State Auto Market 4
G. Appendix D: Full Trade Area Data 4
Fee and Delivery Schedule 5
Sponsor Requirements 6
Signature Page 7
Buxton is pleased to present this proposal to the City of Brentwood. The
objective of this proposal is to outline the scope of the research that will
produce critical fact-based information and marketing tools that can be used
by City of Brentwood to proceed with the attraction and expansion of retail
Upon the identification of a potential site by the City of Brentwood, Buxton
will complete an assessment of the retail automotive potential for the
identified site and trade area. This assessment will identify site
specifics, trade area characteristics, historic demand, and projected
An analysis of the existing retail automotive demand along with demographic
and psychographic analyses of the households in the trade area will
determine the opportunities for additional retail automotive sales.
Specific trade area boundaries along with state statute and competing
automotive factors will contribute to the final “make” (32) forecasts.
This research will be used to create an analysis package that will assess
and support the community’s goals in the following areas.
• Is there potential to support additional auto dealers in your community?
• Is the market over or under supplied?
• What types of vehicle makes should be selling in this trade area or
• How large should the auto dealers be, based on demand for make in the
The analysis package will also include an analysis of the existing top 8
“makes” within the trade area. These materials will be vital to attracting
and supporting developers and dealerships.
Buxton provides market research services and economic development
consultation and does not provide engineering services to determine the
suitability of the environment, topography or infrastructure requirements.
In addition, this analysis does not guarantee the performance of any make at
We are pleased to present the following outline of the scope of this project
for your consideration. We look forward to your response.
SCOPE OF SERVICES
A. DEMOGRAPHICS & MAPS
• Trade Area Demographics
• Trade Area Maps
B. SEGMENTATION PROFILE & ANALYSIS
• Household Profile
• Trade Area Profile
• Dominant Segments
• Trade Area Dominant Segments
• Recommended Makes Profile
• Recommended Makes Segment Matches: Luxury
• Recommended Makes Segment Matches: Non-Luxury
• PrizmNE Social Subgroups
C. CO-TENANT ANALYSIS
• Retail Co-tenants
• Auto Co-tenants
• Manufacturer Co-tenants
• Recommended Franchise Combinations
D. TRADE AREA SALES
• Drive – Time Trade Area
• Market Trends by Make
• Historical Auto Demand
• Market Trends by Make and Model
• Forecasted Market Share & Demand by Make
• Trade Area Competition
E. APPENDIX B: NATIONAL AUTO MARKET TRENDS
SCOPE OF SERVICES (continued)
F. APPENDIX C: STATE AUTO MARKET
• State Auto Market Trends
• State Segment Analysis
• State Model Trends
• State Dealership Averages
• State Historic Market Share
• State Historic Demand
• State Make Trends
G. APPENDIX D: FULL TRADE AREA DATA
• Historic Market Share in Trade Area
• Historic Demand in Trade Area
• Projected Market Share in Trade Area
• Projected Demand for Trade Area
FEE FOR SERVICES
In consideration for services rendered by Buxton, the City of Brentwood
agrees to pay Buxton the pre-approved, actual cost of travel and related
out-of-pocket expenses not to exceed $2,000.00 incurred in connection with
services performed under this agreement in net ten (10) days. Fees
associated with the AutoIDsm program and its related processes are as below:
A fee equal to 50% of the total fee is due upon execution of this Agreement.
The balance is due upon delivery of the results of this proposal.
Additional Research Services (post analysis)
The following hourly rates will apply for all services rendered outside the
scope of this Agreement:
Executive/Senior Vice President $225/hour
Vice President/Director/Manager $200/hour
GIS Senior Analyst/Analyst $175/hour
PROJECT REQUIREMENTS FOR SPONSOR
In order to complete the AutoIDsm program in the time schedule presented,
the following must be provided by the City of Brentwood:
A. Project Liaison
Designate a local Project Manager who will interface with Buxton during
the course of the project.
B. Provide the following materials or reports (all materials will be
returned at the completion of the project)
Economic planning analysis, community visioning or future studies.
Current zoning map.
Current electronic file of street network, if available
Maps or plans for any major highway or roadway upgrade or construction
planned in the next five years.
Most current traffic count reports
Location of desired project site.
List of any shopping center or national retailers that have purchased
property, but not opened. Indicate if project is under construction.
Economic development marketing materials currently used by the community.
C. Meeting room to accommodate final report session. The sponsor is
responsible for extending invitations to participants. Buxton will provide
all briefing/presentation materials.
This agreement is between the City of Brentwood and Buxton (“the Parties”)
for the performance of services described in this proposal. The Parties
further agree that an independent contractor/employer relationship is
created as a result of this agreement. Buxton will not be considered an
agent or employee of the City of Brentwood for any purpose.
The term of this agreement is one (1) year. This agreement may be terminated
by either party at any time upon written notice of 30 days. If this
agreement is terminated, Buxton will be paid for services performed up to
the date the written notice is received.
This agreement shall be administered and interpreted under the laws of the
State of Texas. In order to avoid paying State of Texas Sales and Use Tax,
the City of Brentwood may be required to provide Buxton with a certificate
from the State Comptroller indicating that it is a non-profit corporation
and not subject to State of Texas Sales and Use Tax.
Agreed and accepted this _______ day of ___________, 2005.
Mrs. Donna Landeros Mr. David Glover
City Manager Chief Financial Officer
City of Brentwood The Buxton Company
703 Third Street 2651 S. Polaris Drive
Brentwood, CA 94513-2057 Fort Worth, TX 76137
Phone: 925-240-2500 Phone: 817-332-3681
Fax: 925-240-2509 Fax: 817-332-3686