CITY COUNCIL AGENDA ITEM
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
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.
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.
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.
Professional Services Agreement
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
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
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.”
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
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
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
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
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
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
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
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
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
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
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
All Exhibits referenced in or attached to this Agreement are incorporated
herein by this reference.
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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
Margaret Wimberly, City Clerk
APPROVED AS TO FORM:
Damien B. Brower, City Attorney
SCOPE OF SERVICES
See attached letter.