City of Brentwood
Home PageContact Us!Back

City Administration

2010 Council Goals and Strategic Plan | City Council Members | Calendar of Events | Elections
eNotification | Sub-Committees| Pledge of Allegiance Sign Ups | Invocation Sign Up
Live Streaming Council Meeting | Streaming PC Help |
Streaming Mac Help |

Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 12

Meeting Date: September 27, 2005

Subject/Title: Adopt a Resolution approving a Professional Services Agreement with Frank Kluber, Landscape Architect, to provide as-needed plan check services for 2005/06 in an amount not to exceed $50,000, and authorizing the City Manager to enter into said agreement.

Prepared by: Ken De Silva, Landscape and Facilities Manager

Submitted by: Craig D. Bronzan, Director of Parks and Recreation

RECOMMENDATION
Adopt a Resolution approving a Professional Services Agreement with Frank Kluber, Landscape Architect, to provide as-needed plan check services for 2005/06 in an amount not to exceed $50,000, and authorizing the City Manager to enter into said agreement.

PREVIOUS ACTION
None.

BACKGROUND
Frank Kluber, Landscape Architect has performed plan check services, on an as-needed basis, for the Parks and Recreation Department since 2001. Staff has been very satisfied with the professional work performed by Frank, when he worked for John Nicol and Associates, on many miscellaneous projects.

It is the recommendation of staff to authorize the execution of this agreement in an amount not to exceed $50,000.

FISCAL IMPACT
The funds for this Professional Services Agreement, in the amount not to exceed $50,000 have been budgeted in Park Planning, Contractual Services, (100-5108.70240) in the approved 2005/2006 Operating Budget.

Attachments:
Resolution
Professional Services Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH FRANK KLUBER, LANDSCAPE ARCHITECT FOR AS-NEEDED PLAN CHECK SERVICES, FOR 2005/06 IN AN AMOUNT NOT TO EXCEED $50,000 AND AUTHORIZING THE CITY MANAGER TO ENTER INTO SAID AGREEMENT.

WHEREAS, the City Council of the City of Brentwood authorized the City Manager to enter into agreement with Frank Kluber, Landscape Architect to provide as-needed plan check services; and

WHEREAS, the Parks and Recreation Department requires as-needed plan check services; and

WHEREAS, staff has been satisfied with the previous plan check services provided by Frank Kluber, Landscape Architect.

NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Brentwood hereby approves a Professional Services Agreement with Frank Kluber, Landscape Architect, to provide as-needed plan check services, for 2005/06 in an amount not to exceed $50,000, and authorizes the City Manager to enter into said agreement.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 27th day of September 2005, by the following vote:


AGREEMENT FOR PROFESSIONAL SERVICES

THIS AGREEMENT, made and entered into this 27 day of September 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 Frank Kluber a Landscape Architect hereinafter referred to as "Consultant.”

RECITALS

A. City desires certain Plan Check services in connection with the work referred to as Plan Check Services (the "Project").

B. City desires to engage Consultant to provide these services by reason of its qualifications and experience performing such services and Consultant has offered to provide the required services on the terms and in the manner set forth herein.

C. Consultant represents that it is fully licensed and qualified with all professional skills necessary to perform the services described in this Agreement and has special expertise in the performance of Plan Check services for public agencies of similar scope and complexity as the Services to be performed under this Agreement.

NOW, THEREFORE, City and Consultant agree as follows:

SECTION 1 – SCOPE OF SERVICES

The scope of services subject to this agreement and to be performed by Consultant for the Project is described in Exhibit “A”, Scope of Services, attached hereto and incorporated herein.

SECTION 2 – CONSULTANT'S REPRESENTATIONS AND RESPONSIBILITIES

A. Consultant acknowledges that in entering into this agreement the City is relying upon Consultant's special skills and experience to do and perform the services in accordance with best standards of professional practice in the landscape architect field for public projects of similar size, scope and complexity. Consultant agrees to perform the services in accordance with these standards. The acceptance of Consultant's services by City does not operate as a release of Consultant from these obligations.

B. Consultant accepts the relationship of trust and confidence established between it and City by this Agreement. Consultant shall use its best efforts, skill, judgment, and abilities to assist and work with City to perform the Services, to produce the necessary Plan Check Services, and to further the interests of City in accordance with City's requirements and procedures, each in accordance with professional standards that apply to Consultant.

C. Consultant shall perform the Services in full compliance with applicable federal, state and local laws and regulations in effect at the time such services are rendered (collectively, "Applicable Laws").

D. Consultant shall be responsible for employing or engaging all persons necessary to perform the Services. All of Consultant's staff shall be qualified by training and experience to perform their assigned tasks. Consultant shall give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees and sub-Consultants, if any, and shall keep the Services under its control. If any employee or sub-Consultant of Consultant fails or refuses to carry out the provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper manner, he or she shall be discharged immediately from the work under this Agreement on demand of City.

E. One or more members or employees of Consultant's firm are licensed by the State of California to perform their services and these services will be performed by them or under their supervision.

F. Consultant shall submit, for City's approval, a team or staffing proposal for the Services, complete with job descriptions, names and previous experience of all personnel. Consultant has designated the Principal, for the Services as stated in Exhibit A - Key Personnel - which exhibit is incorporated herein by this reference. Consultant shall not change or reassign Key Personnel without prior notice to City, and shall not replace any Key Personnel with individuals to whom City has a reasonable objection.

G. Consultant's services are unique and personal. Consultant shall not assign or transfer any of its interest or obligation under this Agreement without the City's written consent. Consultant shall not subcontract its duties under this Agreement without the City's written consent. No sub-consultant will be recognized by City as such; rather, all sub-consultants are deemed to be the agents of Consultant, and Consultant agrees to be responsible for their performance.

SECTION 3 - INDEPENDENT CONTRACTOR

The services to be provided to the City as set forth in this Agreement shall be provided by Consultant as an independent contractor as defined in Labor Code 3353, under the control of the City as to the result of the work but not the means by which the result is accomplished, and nothing herein contained shall be construed to make Consultant an agent or employee of the City while providing these services. Consultant shall be entitled to no other benefits or compensation except as provided in this Agreement.

SECTION 4 - DUTIES OF CONSULTANT

A. Consultant's Services shall be furnished as described below and as more particularly described in Exhibit “A”, Scope of Services. Any changes in the Scope of Services must be approved in advance, in writing, by the City Manager or her designee, or if verbally requested by City, confirmed in writing by Consultant within five (5) working days.

B. Consultant shall be responsible for the professional quality, technical accuracy and coordination of all Services. Consultant shall, without additional compensation, correct or revise any errors or deficiencies in its Services.

C. Consultant shall furnish City with every reasonable opportunity for City to ascertain that the Services are being performed in accordance with the requirement and intentions of this Agreement.

SECTION 5 - TERM, PROGRESS AND COMPLETION

A. The term of this Agreement shall begin on the date the City Council approves this Agreement and shall expire upon completion of the Services or when terminated at the end of the Fiscal Year.

B. Consultant shall promptly commence performance of the Services upon execution of this Agreement, and shall diligently pursue performance of the Services until completion.

C. Consultant shall perform the Services in accordance with the schedule attached hereto as Exhibit A (the "Schedule"), which Exhibit is incorporated herein by this reference, and any updates to the Schedule. Consultant shall work such overtime or engage such personnel and equipment as necessary to maintain the Schedule, without additional compensation.

D. Time is of the essence in the performance of this Agreement.

SECTION 6 - PAYMENT

A. Basic Services.

1. City shall pay Consultant for full and faithful performance of Basic Services a fee in the amount of Fifty Thousand Dollars ($50,000) (the "Maximum Contract Amount").

2. Progress payments for Basic Services for each phase of the work shall not exceed the following percentages of the fee:
(Breakdown per order of work)
a. Schematic Design Phase - fifteen percent (15%).
b. Design Development Phase - twenty percent (20%).
b. Contract Documents Phase - forty percent (40%).
d. Bidding or Negotiations Phase - five percent (5%).
e. Contract Administration Phase - fifteen percent (15%).
f. Post Contract Phase - five percent (5%).

3. Payments for various items of service may be modified with approval of City so long as there is no change in the maximum contract amount.

B. Additional Services.

1. City shall pay Consultant for authorized Additional Services on an hourly basis, in accordance with the schedule of fees attached hereto as Exhibit A. City shall pay only for Additional Services authorized by the City Manager or her designee in writing or requested verbally by City and confirmed in writing by Consultant within five (5) working days.

2. Consultant and City shall agree upon an estimated not-to-exceed cost for any proposed Additional Services or, in the case of a verbal request, Consultant shall provide City with a written estimated not-to-exceed cost for such Additional Services at least one (1) working day prior to commencing the additional Services. In no event shall City pay for Additional Services made necessary by Consultant's errors or oversights.

C. Reimbursable Expenses. In addition to compensation for Basic Services and Additional Services, City shall reimburse Consultant for Reimbursable Expenses Consultant incurs in the course of performing Services under this Agreement. Reimbursable Expenses include only the following items:

1. Reproduction and handling of Documents prepared in connection with the Project;

2. Fees paid for securing government approvals for the Project; and

3. Other expenses as City may approve in writing in advance.

D. Consultant shall submit written applications for progress payments in a form satisfactory to City on or before the first day of each month on account of Basic Services, Additional Services and Reimbursable Expenses provided during the preceding month. The payment applications shall identify each person performing services, the time each person spends on each task (in units not to exceed one quarter hour) and shall be based on the rates in Exhibit A

E. Within thirty (30) days after receipt of each application for progress payment, City shall verify the accuracy of the progress payment application, correct the charges where appropriate, and make payment to Consultant in an amount equal to the amount of such application, as verified or corrected by City. No payment made hereunder prior to completion and acceptance of the Project shall be construed as evidence of acceptance of any part of the Services. City reserves the right to withhold payment from Consultant on account of Services not performed satisfactorily, delays in Consultant's performance of Services, or other defaults hereunder. Consultant shall not stop or delay performance of Services under this Agreement on account of payment disputes with City.
G. If CITY disagrees with any portion of a billing, the CITY shall promptly notify Consultant of the disagreement, and the CITY and the Consultant shall attempt to resolve the disagreement. CITY’S payment of any amounts shall not constitute a waiver of any disagreement and CITY shall promptly pay all amounts not in dispute.

H. Consultant shall maintain complete and accurate records of the number of hours worked by persons and Reimbursable Expenses on the Project during each phase under this Agreement. All such records shall be maintained on a generally accepted accounting basis and shall be clearly identified and readily accessible. CITY shall have the right to examine and copy such books and records at all times. Consultant shall permit the CITY to examine and audit those books and records, shall permit the CITY to make copies of those books and records, and shall permit the CITY to inspect all work data, documents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. All accounting records shall provide an understandable breakdown of costs charged to this Agreement.

SECTION 7 - CONFLICT OF INTEREST

Consultant understands that its professional responsibility is solely to City. Consultant warrants that it presently has no interest, and will not acquire any direct or indirect interest, that would conflict with its performance of this Agreement. Consultant shall not knowingly, and shall take reasonable steps to ensure that it does not, employ a person having such an interest in the performance of this Agreement. If after employment of a person, Consultant discovers that it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly disclose the relationship to the City and take such action as the City may direct to remedy the conflict.

SECTION 8 - TERMINATION

A. If Consultant at any time refuses or neglects to prosecute its Services in a timely fashion or in accordance with the Project schedule, or is adjudicated a bankrupt, or commits any act of insolvency, or makes an assignment for the benefit of creditors without City's consent, or fails to make prompt payment to persons furnishing labor, equipment, or materials, or fails in any respect to properly and diligently prosecute its services, or otherwise fails to perform fully any and all of the agreements herein contained, Consultant shall be in default.

B. If Consultant fails to cure the default within seven (7) days after written notice thereof, City may, at its sole option, take possession of any Documents or other materials (in paper and electronic form) prepared or used by Consultant in connection with the Project and (1) provide any such work, labor, or materials as may be necessary to overcome the default and deduct the cost thereof from any money then due or thereafter to become due to Consultant under this Agreement; or (2) terminate Consultant's right to proceed with this Agreement.

C. In the event City elects to terminate, City shall have the right to immediate possession of all Documents and work in progress prepared by Consultant, whether located at the Project, at Consultant's place of business, or at the offices of a subconsultant, and may employ any other person or persons to finish the design work and provide the materials therefore. In case of such default termination, Consultant shall not be entitled to receive any further payment under this Agreement until the Project is completely finished. At that time, if the unpaid balance of the amount to be paid under this Agreement exceeds the expenses incurred by City in obtaining Plan Check services for the Project, such excess shall be paid by City to Consultant, but, if such expense shall exceed such unpaid balance, then Consultant shall promptly pay to City the amount by which such expense exceeds such unpaid balance. The expense referred to in the last sentence shall include expenses incurred by City in causing the services called for under this Agreement to be provided by others, for attorneys' fees, and for any costs or damages sustained by City by reason of Consultant's default or defective work.

D. In addition to the foregoing right to terminate for default, City reserves the absolute right to terminate this Agreement without cause, upon 72-hours' written notice to Consultant. In the event of termination without cause, Consultant shall be entitled to payment in an amount not to exceed the Maximum Contract Amount, which shall be calculated as follows: (1) Payment for Services then satisfactorily completed and accepted by City, plus (2) Payment for Additional Services satisfactorily completed and accepted by City, plus (3) Reimbursable Expenses actually incurred by Consultant, as approved by City. The amount of any payment made to Consultant prior to the date of termination of this Agreement shall be deducted from the amounts described in (1), (2) and (3) above. Consultant shall not be entitled to any claim or lien against City or the Project for any additional compensation or damages in the event of such termination and payment. In addition, the City's right to withhold funds under Section 6(E) shall be applicable in the event of a termination for convenience.

E. If this Agreement is terminated by City for default and it is later determined that the default termination was wrongful, such termination automatically shall be converted to and treated as a termination for convenience under this Article and Consultant shall be entitled to receive only the amounts payable hereunder in the event of a termination for convenience.

SECTION 9- OWNERSHIP OF DOCUMENTS

A. The plans, specifications, estimates, programs, reports, models, and other material prepared by or on behalf of Consultant under this Agreement including all drafts and working documents, and including electronic and paper forms (collectively the "Documents"), shall be and remain the property of the City, whether the Services or Project is completed or not. Consultant shall deliver all Documents to City upon (1) the substantial completion date of the Services, (2) the date of termination of this Agreement for any reason, or (3) at any time requested by City, upon five (5) days written notice.

B. The Documents may be used by City and its agents, employees, representatives, and assigns, in whole or in part, or in modified form, for all purposes City may deem advisable, without further employment of or payment of any compensation to Consultant; provided, however, that if this Agreement is terminated for any reason prior to completion of the Project and if under such circumstances City uses, or engages the services of and directs another Consultant to use, such documents, CITY agrees to hold Consultant harmless from any and all liability, costs, and expenses (including reasonable legal fees and disbursements), relative to claims arising out of matters and/or events which occur subsequent to the termination of this Agreement as a result of causes other than the fault or negligence of Consultant, or anyone for whose acts it is responsible, in preparation of the Documents. Consultant shall not be responsible for deficiencies solely attributable to modifications to the Documents performed by others, or that arise from use of the Documents in connection with a project or site other than that shown in the Documents.

C. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the City to the public, and the Consultant shall not make any of these documents or information available to any individual or organization not employed by the Consultant or the City without the written consent of the City before any such release.

SECTION 10 – INDEMNITY

A. Claims for Professional Liability – Consultant shall, with respect to all Services performed in connection with this Agreement, defend, indemnify, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers harmless from and against any and all claims, liability, loss, damage, costs, or expenses, including reasonable attorneys' fees, awards, fines, or judgments (collectively, "Claims"), arising from or relating to negligent acts, errors, or omissions in the performance of professional services by Consultant, its subconsultants, agents or employees. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.

B. Claims for Other Liability – Consultant shall, with respect to all Services performed in connection with this Agreement, defend, indemnify, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers harmless from and against any and all liens and Claims by firms or individuals claiming through Consultant, and all Claims for compensation, the death or bodily injury to persons, injury to property, or other loss, damage, or expense arising from or related to the Services of Consultant , its subcontractors, agents or employees. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.

C. Claims involving intellectual property - In addition to the obligations set forth in (A) and (B) above, Consultant shall indemnify, defend, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers, harmless against any Claim is alleged in which a violation of intellectual property rights, including but not limited to copyright or patent rights, that arises out of or relates to the Services of Consultant, its subcontractors, agents or employees. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.

SECTION 11 – INSURANCE

A. Consultant shall, at all times it is performing Services under this Agreement, provide and maintain insurance in the following types and with limits no less than the following amounts:

1. 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;

2. Automobile Liability Insurance, occurrence form, with a limit of not less than $1,000,000.00 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles.

3. Professional Liability (errors and omissions) insurance in the minimum amount of $1,000,000.00 aggregate.

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

5. Employers Liability Insurance, with minimum limits of $1 million per occurrence.

B. General Provisions:

1. Consultant's general and automobile liability insurance policies shall be endorsed to name 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. Consultant's general and automobile liability insurance policies shall be endorsed so that they are primary with respect to any insurance or self-insurance programs of CITY, its officers, employees, and volunteers.

3. Before performing any services under this Agreement, Consultant shall provide evidence of the required coverage and limits, and properly executed policy endorsements satisfactory to City.

4. No changes in insurance may be made without the written approval of the City.

SECTION 12 - 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 deemed 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 13 - COSTS AND ATTORNEYS FEES

Attorney fees in an amount not exceeding Eighty-Five Dollars ($85.00) per hour per attorney, and in total amount not exceeding Five Thousand Dollars ($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 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 14 - 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 15 - MEDIATION

Should any dispute arise out of this Agreement, either party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. 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 requesting 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 16 - 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 actual or alleged negligence or other wrongdoing, City shall compensate Consultant for time spent in preparation for testimony, testimony, and travel at Consultant's standard hourly rates at the time of actual testimony.

SECTION 17 - 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: Frank Kluber
Landscape Architect
819 Marina Vista
Martinez, CA 94553-1234

SECTION 18 – 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.

All Exhibits referenced in or attached to this Agreement are incorporated herein by this reference.

[the rest of this page is blank]

SECTION 19 – 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                Title: Frank Kluber, Landscape Architect

ATTEST:
_______________________________
Margaret Wimberly, City Clerk

APPROVED AS TO FORM:
________________________________
Damien B. Brower, City Attorney

EXHIBIT "A"

SCOPE OF SERVICES

See attached letter.
 

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