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CITY COUNCIL AGENDA ITEM NO. 9

Meeting Date: June 27, 2006

Subject/Title: Adopt a resolution approving, and authorizing the City Manager to enter into, a Professional Services Agreement with MCE Corporation, for Parks and Recreation Inspection for new development and Capital Improvement Projects in the Amount of $113,557.80 plus a 10% contingency, for a total not to exceed agreement amount of $124,913.58.

Prepared by: Ken De Silva, Landscape/Facilities Manager

Submitted by: Craig Bronzan, Director of Parks and Recreation
Ken De Silva, Landscape/Facilities Manager

RECOMMENDATION
Adopt a resolution approving, and authorizing the City Manager to enter into, a Professional Services Agreement with MCE Corporation, for Parks and Recreation Inspection for new development and Capital Improvement Projects in the Amount of $113,557.80 plus a 10% contingency, for a total not to exceed agreement amount of $124,913.58.

PREVIOUS ACTION
On February 17, 2006, the City Council approved a Resolution authorizing the City Manager to enter into a Professional Services Agreement with MCE Corp for Landscape Inspection Services for new development and Capital Improvement Projects (CIP) in the amount of $115, 000, and authorized the City Manager to approve change orders up to 10% of the contract amount.

BACKGROUND
The City of Brentwood has experienced an enormous amount of landscape development in the last few years. The number of parks, streetscapes, residential and commercial landscape infrastructure projects created by new development and the City's Capital Improvement Projects (CIP) continue to increase. Inspection services are an integral part of the construction process for quality control and to verify that all improvements are constructed in conformance with City and State standards. Having good quality control during construction reduces maintenance costs.

The Parks and Recreation Department is responsible for the review, plan check and inspection of all landscape projects in addition to park landscape projects. The Parks and Recreation Department has one full time Construction Inspector who is paid through Park Development Funds. Additional, non permanent, inspection staff are needed to perform the job.

MCE Corporation has performed (over the past 5 years) for the City providing contract maintenance services on our landscaped areas. MCE is currently one of our landscape maintenance contractors (awarded via the competitive bid process). Last year we used MCE for construction inspection, and they have performed admirably. This proposal is based on the expected need of a total of one inspector from this firm for fiscal year 06/07. Contract inspectors will only be used as needed, with related costs paid by specific Developers and Development fees.

This Agreement with MCE Corporation will provide our Division with the equivalent of one full time inspector for fiscal year 06/07. The unit rate of pay is $63.60/hr. Inspectors from MCE Corporation specialize in landscape/horticulture construction methods related to our site improvements.

Our Department will also propose (at this City Council meeting) to enter into a Professional Services Agreement with Vali Cooper & Associates, Inc., for one additional inspector specializing in the civil aspects of our construction inspection.

FISCAL IMPACT
This proposed budget has been approved by City Council as a part of the fiscal year 2006/07 City of Brentwood Budget. Developer projects (Parks, Streetscapes, & Trails) are a component of the City’s approved Capital Improvement Program. Developer inspection fees are established to recoup this inspection cost from the developers requiring the inspection services.

Attachments:
Resolution
Professional Services Agreement

RESOLUTION NO.

ADOPT A RESOLUTION APPROVING, AND AUTHORIZING THE CITY MANAGER TO ENTER INTO, A PROFESSIONAL SERVICES AGREEMENT WITH MCE CORPORATION, FOR PARKS AND RECREATION INSPECTION FOR NEW DEVELOPMENT AND CAPITAL IMPROVEMENT PROJECTS IN THE AMOUNT OF $113,557.80 PLUS A 10% CONTINGENCY, FOR A TOTAL NOT TO EXCEED AGREEMENT AMOUNT OF $124,913.58.

WHEREAS, the City of Brentwood has experienced an enormous amount of public, residential and commercial landscape development in the last few years; and

WHEREAS, inspection services are an integral part of the construction process for quality control and to verify that all improvements are constructed in conformance with City and State standards; and

WHEREAS, the Parks and Recreation Department is responsible for the review, plan check and inspection of landscape projects; and

WHEREAS, MCE will be providing landscape construction inspection services for the City to insure work is performed as per plans; and

WHEREAS, this proposed budget has been approved by City Council as a part of the fiscal year 2006/07 City of Brentwood Budget.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby approves and authorizes the City Manager to execute a Professional Services Agreement with MCE Corporation, for Parks and Recreation Inspection Services for new development and Capital Improvement Projects in the amount of $113,557.80, plus a ten percent (10%) contingency, for a total not to exceed agreed amount of $124,913.58.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 27th day of June 2006, by the following vote:

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES

This Agreement for Professional Consultant Services (“Agreement”), made and entered into this __________ day of ________, 2006, 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 MCE Corporation, with offices in Dublin, California (hereinafter referred to as “CONSULTANT”).

RECITALS

A. CITY desires certain professional consultant services hereinafter described.

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 construction inspection 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 Steve Loweree, Vice President – Contract Management will be the designated representative 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 the project.

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 the date first above written and be completed on June 30th, 2007.

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 “B” not to exceed $124,913.58.

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, and 16.

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 Agreement.

SECTION 11 – INDEMNITY

11.1 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.

11.2 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.

SECTION 12 – INSURANCE

12.1 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:

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

C. Professional Liability (errors and omissions) insurance in the minimum amount of $2,000,000.00 aggregate.

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

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

12.2 General Provisions:

A. 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.

B. 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.

C. 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.

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

SECTION 13 - NONASSIGNABILITY

13.1 Personal Services of Consultant: Both parties 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 said obligation.

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" process.

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 actual testimony.

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: MCE Corporation
6515 Trinity Court
Dublin, CA 94568

SECTION 22 – AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT

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 California.

IN WITNESS WHEREOF, CITY and CONSULTANT have executed this Agreement the day and year first above written.

CITY OF BRENTWOOD CONSULTANT:
MCE Corporation

Donna Landeros, City Manager Name:
Title:

ATTEST:

Margaret Wimberly, CMC, City Clerk

APPROVED AS TO FORM:

Damien B. Brower, City Attorney

EXHIBIT “A”

SCOPE OF SERVICES

1. Inspects the construction, repair, and/or alteration work on assigned public landscape improvements including, parks, curbs, sidewalks, water and drainage systems, storm drains, underground improvements, lighting systems, landscaping, landscaping irrigation systems, and other City capital and Developer projects; inspects materials, methods, and procedures for conformance with plans and specifications; enforces and observes testing of materials; reviews test reports; performs final inspection upon completion of project.
2. Meets and confers with representatives of utility companies, contractors, engineers and other public agencies regarding construction plans and specifications; investigates and attempts to resolve citizen complaints.
3. Answers questions, provides information to, and confers with property owners regarding project schedule, hazards, and inconvenience; schedules service interruptions with the least interference and least inconvenience to property owners; coordinates work with other City departments and utilities to resolve interferences and conflicts.
4. Compiles detailed data on construction progress and inspection results including project punchlists; issues notification letters to contractors; maintains a variety of records and files; prepares various reports and logs on daily operations and activities.
5. Reviews plans, specifications, contract documents, and other technical data to ensure conformance with City standard; recommends and/or makes changes as necessary.
6. Enforces and documents adherence to various environmental requirements.
7. Responds to public inquiries in a courteous manner; provides information within the area of assignment; resolves complaints in an efficient and timely manner.
8. Maintains awareness of new trends and developments in construction methods and materials; incorporates new developments as appropriate.
9. Addresses public safety in construction zones; advises contractors of issues related to public safety; assists in detour planning, sign placement, and other traffic control measures.

EXHIBIT “B”

FEE SCHEDULE

EXHIBIT B

City of Brentwood
Parks Inspector - Sally Cairns
Cost Estimate
July 1, 2006 - June 30, 2007

For $2M Liability Coverage
Month # hours hrly rate Cost
July 152 $ 63.60 $ 9,667.20
August 144 $ 63.60 $ 9,158.40
September 152 $ 63.60 $ 9,667.20
October 197 $ 63.60 $ 12,529.20
November 136 $ 63.60 $ 8,649.60
December 163.5 $ 63.60 $ 10,398.60
January 144 $ 63.60 $ 9,158.40
February 142 $ 63.60 $ 9,031.20
March 140 $ 63.60 $ 8,904.00
April 155 $ 63.60 $ 9,858.00
May 108 $ 63.60 $ 6,868.80
June 152 $ 63.60 $ 9,667.20
1785.5 Total $ 113,557.80
+10% Contingency $ 11,355.78
Grand Total $ 124,913.58
 

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