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Current Council Agenda and Past Meeting Information



Meeting Date: June 26, 2007

Subject/Title: Approve and Authorize the Executive Director to execute a Professional Services Agreement for Legal Services with McDonough Holland & Allen in an amount not to exceed $55,000 for the 2007-2008 fiscal year.

Prepared by: Gina Rozenski, Redevelopment Manager

Submitted by: Howard Sword, Director of Community Development

Approve and Authorize the Executive Director to execute a Professional Services Agreement for Legal Services with McDonough Holland & Allen in an amount not to exceed $55,000 for the 2007-2008 fiscal year.

On June 10, 2003, the Redevelopment Agency authorized the Executive Director to execute a Professional Services Agreement for Legal Consulting Services with McDonough Holland & Allen in an amount not to exceed $70,000 for the 2003-2004 fiscal year.

On June 22, 2004, the Redevelopment Agency authorized the Executive Director to execute a Professional Services Agreement for Legal Consulting Services with McDonough Holland & Allen in an amount not to exceed $50,000 for the 2004-2005 fiscal year.

On June 14, 2005, the Agency authorized the Executive Director to execute a Professional Services Agreement for Redevelopment Legal Consulting Services with McDonough Holland & Allen in an amount not to exceed $66,250 for the 2005-2006 budget year.

On June 27, 2006, the Agency authorized the Executive Director to execute a Professional Services Agreement for Redevelopment Legal Consulting Services with McDonough Holland & Allen in an amount not to exceed $62,500 for the 2006-2007 budget year.

McDonough Holland & Allen has been the Brentwood Redevelopment Agency’s legal counsel for almost a decade, and is highly specialized in practicing redevelopment law. MHA is knowledgeable and experienced with our Agency’s policies, procedures and needs, and most importantly, has been greatly involved in all of the Agency’s recent programs and projects. Considering the specialized legal services delivered by MHA, as well as the level of responsiveness, staff believes the Agency has received a very good value over the past several years.

The Agency will utilize comprehensive and intensive legal services related to the Merged Project Areas and Redevelopment Housing as we embark on developing and implementing long-term strategies and policies in these areas. Also, as the Agency furthers its planning and potential acquisition phases for a parking structure in the Downtown Project Area, considers developer selection and agreement negotiations for development opportunities in the Downtown, and embarks on implementing the Brentwood Boulevard Specific Plan, additional legal services will be required.

Staff recommends the services of MHA be renewed for an amount not to exceed $55,000 for the 2007-2008 fiscal year. This amount will allow the Agency to continue to use MHA’s legal services without disruption over the next year.

Funding for these legal services is budgeted in the 2007-2008 fiscal year and will be shared between the Downtown Administration Fund 301 and Housing Fund 302.

Professional Services Agreement

[McDonough Holland and Allen PC]

THIS AGREEMENT is made and entered into as of the day of , 2007, by and between the Redevelopment Agency of the City of Brentwood, a public body corporate and politic ("Agency") and McDonough Holland and Allen PC ("Special Counsel") (collectively, the “Parties”).
A. Agency requires the professional services of attorneys who are experienced in redevelopment matters.
B. Special Counsel has the necessary experience and history in providing professional services and advice related to redevelopment law.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows:
1. Scope of Work. Agency retains Special Counsel to represent the Agency in connection with its redevelopment activities, including, but not limited to, advice, consultation, legal research and opinions regarding redevelopment activities (the "Services") in accordance with this Agreement’s terms and conditions. The Services do not include any litigation services.
2. Standard of Performance. While performing the Services, Special Counsel will exercise the reasonable professional care and skill customarily exercised by reputable members of the California State Bar practicing in the Metropolitan Northern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise.
3. Term. Unless earlier terminated or extended, the term of this Agreement will be for one year from the date first above written.
4. Time is of the Essence. Time is of the essence for each and every provision of this Agreement.
5. Compensation. Agency shall compensate Special Counsel for the performance of the Services at the rates shown on Exhibit “A.” No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement.
6. Reimbursable Expenses. In lieu of itemizing reimbursable charges, Special Counsel may charge Agency an administrative fee of four percent of hourly billings which compensates the cost of normal photocopying, long distance telephone calls, regular mail postage, telecopy charges and other expenses as to which individual itemization is impractical. Special Counsel shall be entitled to reimbursement for all reasonable and necessary expenses incurred from outside vendors related to extraordinary costs not covered by the four percent administrative fee.
7. Advancement of Costs. Special Counsel will advance expenses and costs incurred on behalf of the Agency under this Agreement in an amount not exceeding $450 per month. If costs will exceed $450 per month, costs in excess of this total shall be paid directly by the Agency or shall be advanced to Special Counsel pursuant to a separate letter agreement which the Agency Counsel is authorized to execute on behalf of the Agency.
8. Payment for Services. Special Counsel shall submit itemized monthly invoices to the Agency accounting for the Services provided and costs incurred pursuant to the terms of this Agreement. Each monthly invoice shall bill in six-minute increments and shall include the total hours performed to date. Minimum billing requirements are unacceptable to the Agency and invoice shall charge only for actual time spent. Payment will occur only after receipt by Agency of invoices sufficiently detailed that clearly set forth by date, the type of work performed, the specific subject of work performed or legal research performed, and the time spent on a task. Agency shall make payment to Special Counsel within thirty (30) days of receipt of the invoice, except for those specific items on the invoice which are contested or questioned and returned by Agency, with written explanation, within thirty (30) days of receipt of the invoice. Special Counsel shall provide to Agency, a written response to any statement contested or questioned and further, upon request of Agency, provide Agency with any and all documents related to the service or costs. No charge shall be made for time expended in providing this information to the Agency.
Special Counsel shall invoice Client monthly for the Services and costs incurred. The form of invoice shall include a cover summary sheet containing only the “attorney services” and the amount being billed therefore; the “costs advanced” and the amount being billed therefore; and a total for all services and costs invoiced. Attached to the summary sheet shall be the detailed backup information which, as to “attorney services”, sets forth the dates services were performed; the initials of the attorney performing said services; the hourly rate attributable thereto; the hours or minutes being invoiced, and the total invoiced costs of attorney services. As to “costs advanced’, the detailed back up information shall set forth the dates costs were incurred, the type of cost incurred; and the total of advance costs incurred.

9. Status of Special Counsel. Special Counsel will perform the Services in Special Counsel's own way as an independent contractor and in pursuit of Special Counsel's independent calling, and not as an employee of Agency. The persons used by Special Counsel to provide services under this Agreement will not be considered employees of Agency for any purposes.
The payment made to Special Counsel pursuant to the Agreement will be the full and complete compensation to which Special Counsel is entitled. Agency will not make any federal or state tax withholdings on behalf of Special Counsel or its agents, employees or subcontractors. Agency will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Special Counsel or its employees or subcontractors. Special Counsel agrees to indemnify Agency within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which Agency may be required to make on behalf of Special Counsel or any agent, employee, or subcontractor of Special Counsel for work done under this Agreement. At the Agency’s election, Agency may deduct the indemnification amount from any balance owing to Special Counsel.
10. Subcontracting. Special Counsel will not subcontract any portion of the Services without prior written approval of Agency Counsel or his/her designee. If Special Counsel subcontracts any of the Services, Special Counsel will be fully responsible to Agency for the acts and omissions of Special Counsel's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Special Counsel is for the acts and omissions of persons directly employed by Special Counsel. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Special Counsel and Agency. Special Counsel will be responsible for payment of subcontractors. Special Counsel will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Special Counsel's work unless specifically noted to the contrary in the subcontract and approved in writing by Agency.
11. Other Attorneys. The Agency reserves the right to employ other attorneys in connection with the Services.
12. Indemnification. Special Counsel will indemnify and hold harmless Agency and the City of Brentwood (“City”) and its and their officers, agents, employees and volunteers from and against all claims, damages, losses and expenses including attorney fees arising out of the performance of the Services to the extent they are caused by the willful misconduct or negligent act or omission of the Special Counsel, any subcontractor, anyone employed by any of them or anyone for whose acts any of them may be liable.
The Parties expressly agree that any reasonable payment, attorney's fee, cost or expense Agency or City incurs or makes to or on behalf of an injured employee under the City's or Agency’s self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section to the extent such injury is caused by willful misconduct or negligent act or omission of Special Counsel, and that this section will survive the expiration or early termination of the Agreement.
13. Insurance. Special Counsel will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the Services by Special Counsel or Special Counsel’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V."
13.1 Coverages and Limits. Special Counsel will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or Executive Director, in consultation with the Agency Counsel approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Special Counsel's indemnification obligations under this Agreement. Agency, its officers, agents, volunteers and employees make no representation that the limits of the insurance specified to be carried by Special Counsel pursuant to this Agreement are adequate to protect Special Counsel. If Special Counsel believes that any required insurance coverage is inadequate, Special Counsel will obtain such additional insurance coverage, as Special Counsel deems adequate, at Special Counsel's sole expense.
13.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit.
13.1.2 Automobile Liability. $1,000,000 combined single-limit per accident for bodily injury and property damage.

13.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Special Counsel has no employees and provides, to Agency's satisfaction, a declaration stating this.
13.1.4 Professional Liability. Errors and omissions liability appropriate to Special Counsel’s profession with limits of not less than $1,000,000 per claim.

13.2 Additional Provisions. Special Counsel will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions:
13.2.1 For Commercial General Liability Insurance and Automobile Liability Insurance, Agency and City and its and their officers, agents, volunteers and employees will be named as additional insureds.

13.2.2 Special Counsel will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage.

13.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to Agency sent pursuant to the notice provisions of this Agreement.

13.3 Providing Certificates of Insurance and Endorsements. Prior to Agency's execution of this Agreement, Special Counsel will furnish certificates of insurance and endorsements to Agency.

13.4 Failure to Maintain Coverage. If Special Counsel fails to maintain any of these insurance coverages, then Agency will have the option to declare Special Counsel in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Special Counsel is responsible for any payments made by Agency to obtain or maintain insurance and Agency may collect these payments from Special Counsel or deduct the amount paid from any sums due Special Counsel under this Agreement.

13.5 Primary Coverage. For any claims related to the Services and this Agreement, the Special Counsel’s insurance coverage will be primary insurance with respect to Agency and City and its and their officers, agents, volunteers and employees. Any insurance or self-insurance maintained by Agency and City, for themselves or their officers, agents, volunteers and employees, will be in excess of Special Counsel’s insurance and not contributory with it.

13.6 Reduction in Coverage/Material Changes. Special Counsel will notify Agency thirty (30) days prior to any reduction in any of the insurance coverage required pursuant to this Agreement or any material changes to the respective insurance policies.

14. Conflict Waiver. Actual or possible conflict sometimes arises between existing or potential clients. Special Counsel may be required to ask for a conflict waiver in that event. Special Counsel asks for Agency’s understanding and cooperation if Special Counsel requests a conflict waiver in order to undertake or continue representation of another client in manner that will not be specifically detrimental or adverse to Agency.
15. Maintenance of Records. Special Counsel will maintain complete and accurate records with respect to costs incurred under this Agreement. All such records will be clearly identifiable. Special Counsel will allow a representative of Agency during normal business hours to examine, audit, and make transcripts or copies of such records and any other such documents created pursuant to this Agreement. Special Counsel will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
16. Ownership of Documents. All work product produced by Special Counsel or its agents, employees, and subcontractors pursuant to this Agreement is the property of Agency. Special Counsel will provide Agency with the final version of all briefs, filings, legal memos and work product produced by Special Counsel within a reasonable time, not to exceed ten (10) days, after the work product is made final. In the event this Agreement is terminated, all work product produced by Special Counsel or its agents, employees and subcontractors pursuant to this Agreement will be delivered to Agency pursuant to the termination clause of this Agreement. Special Counsel will have the right to make copies of the work product for Special Counsel’s records.
17. Copyrights. Special Counsel agrees that all copyrights that arise from the Services will be vested in Agency and Special Counsel relinquishes all claims to the copyrights in favor of Agency.
18. Notices. The name of the persons who are authorized to give written notices or to receive written notice on behalf of Agency and on behalf of Special Counsel under this Agreement.
For Agency:

Redevelopment Agency of the City of Brentwood
Attn: Damien Brower
150 City Park Way
Brentwood, CA 94513
(925) 516-5440 For Special Counsel:

McDonough Holland and Allen PC
Attn: Brent Hawkins
555 Capitol Mall, 9th Floor
Sacramento, CA 95814-4692
(916) 444-3900

Except as otherwise stated, all notices to be provided or that may be provided under this Agreement must be in writing and delivered by regular or certified mail. Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address.
19. Conflict of Interest. Agency will evaluate Special Counsel’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and Agency’s Conflict of Interest Code is required of Special Counsel or any of Special Counsel’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Special Counsel or Special Counsel’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by Agency and contained in the Statement of Economic Interests Form 700.
Special Counsel warrants that it has no financial interest in the subject matter of this Agreement, other than the compensation to be provided for the Services. Special Counsel further warrants that it will comply with all California State Bar Rules of Professional Conduct, including those relating to interests adverse to a client (Rule 3-300) and representing adverse interests (Rule 3-310).
20. General Compliance with Laws. Special Counsel will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Special Counsel, or in any way affect the performance of the Services by Special Counsel. Special Counsel will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of the Services with all applicable laws, ordinances and regulations.
21. Discrimination and Harassment Prohibited. Special Counsel will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment.
22. Termination of Services. Agency may terminate Services at any time by written notice. After receiving such notice, Special Counsel will cease providing the Services. Special Counsel will cooperate with Agency in the orderly transfer of all related files and records to Agency’s new counsel.
Special Counsel may terminate the Services at any time with Agency’s consent or for good cause. Good cause exists if (a) any statement is not paid within sixty (60) days of its date; (b) Agency fails to meet any other obligation under this Agreement and continue in that failure for fifteen (15) days after Special Counsel send written notice to Agency; (c) Agency has misrepresented or failed to disclose material facts to Special Counsel, refused to cooperate with Special Counsel, refused to follow Special Counsel’s advice on a material mater, or otherwise made Special Counsel’s representation unreasonably difficult; or (d) any other circumstance exists in which ethical rules of the legal profession mandate or permit termination, including situations where a conflict of interest arises. If Special Counsel terminates the Services, Agency agrees to execute a substitution of attorneys promptly and otherwise cooperate in effecting that termination.
Termination of the Services, whether by Agency or by Special Counsel, will not relieve the obligation to pay for the Services rendered and costs incurred before the Services formally ceased.
23. Covenants Against Contingent Fees. Special Counsel warrants that Special Counsel has not employed or retained any company or person, other than a bona fide employee working for Special Counsel, to solicit or secure this Agreement, and that Special Counsel has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, Agency will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
24. Claims and Lawsuits. By signing this Agreement, Special Counsel agrees that any Agreement claim submitted to Agency must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Special Counsel acknowledges that if a false claim is submitted to Agency by Special Counsel, it may be considered fraud and Special Counsel may be subject to criminal prosecution. Special Counsel acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If Agency seeks to recover penalties pursuant to the False Claims Act, it is entitled to seek to recover its litigation costs, including attorney's fees. Special Counsel acknowledges that the filing of a false claim may subject Special Counsel to an administrative debarment proceeding as the result of which Special Counsel may be prevented to act as a Special Counsel on any public work or improvement for a period of up to five (5) years.
25. Jurisdiction and Venue. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of Contra Costa, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county.
26. Successors and Assigns. It is mutually understood and agreed that this Agreement will be binding upon the Parties and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Special Counsel without the prior consent of Agency.
27. Paragraph Headings. Paragraph headings as used herein are for convenience only and will not be deemed to be a part of such paragraphs and will not be construed to change the meaning thereof.
28. Entire Agreement. This Agreement embodies the entire Agreement and understanding between the Parties relating to the subject matter of it. As of its effective date it will replace in its entirety the Agreement dated June 27, 2006. In case of conflict, the terms of the Agreement supersede any and all prior written or oral agreement, order or understanding. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in writing signed by both Parties.
29. Authority. The individual executing this Agreement and the instruments referenced in it on behalf of Special Counsel represents and warrants that he has the legal power, right and actual authority to bind Special Counsel to the terms and conditions of this Agreement.



Jeffry R. Jones, Esq.
Managing Shareholder


REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body, corporate and politic

Damien B. Brower, Agency Counsel


Margaret Wimberly, Agency Secretary


Damien B. Brower, Agency Counsel


[to be inserted]


City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441