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REDEVELOPMENT AGENCY AGENDA ITEM NO. 3

Meeting Date: December 9, 2003

Subject/Title: Authorize Executive Director to execute a Professional Services Agreement with Watry Design, Inc., to prepare the required designs and studies for Study Area 7 as an addition to the Downtown Retail/Parking Study in an amount not to exceed $48,000, authorize Executive Director to execute change orders up to 15% of the contract amount, and approve a Resolution authorizing the Agency Treasurer to use funds from the Redevelopment Agency of the City of Brentwood Tax Allocation Bonds, Series 2001, to fund this Agreement.

Submitted by: Gina Rozenski, Redevelopment Manager

Approved by: John Stevenson, Executive Director

RECOMMENDATION
Authorize Executive Director to execute a Professional Services Agreement with Watry Design, Inc., to prepare the required designs and studies for Study Area 7 as an addition to the Downtown Retail/Parking Study in an amount not to exceed $48,000, authorize Executive Director to execute change orders up to 15% of the contract amount, and approve a Resolution authorizing the Agency Treasurer to use funds from the Redevelopment Agency of the City of Brentwood Tax Allocation Bonds, Series 2001, to fund this Agreement.

PREVIOUS ACTION
On April 9, 2002, the Agency approved a Professional Services Agreement with Watry Design, Inc., to conduct the Downtown Retail/ Parking Study Phase I in the amount of $35,500.

The Redevelopment Agency, on September 10, 2002, authorized an expanded scope and an additional fee of $21,800, as recommended by the Redevelopment Subcommittee. This expanded scope was the First Amendment to the Professional Services Agreement with Watry.

The Redevelopment Agency, at its meeting of January 14, 2003, authorized the Executive Director to execute a Second Amendment to the Professional Services Agreement with Watry Design for the preparation of the Downtown Retail/Parking Study Phase II in an amount not to exceed $42,780.

On October 28, 2003, the Redevelopment Agency added Study Area 7 as a potential site for a retail/parking structure and requested that Study Area 7 be investigated to the same level as the other potential study areas including, but not limited to, land assemblage estimates, environmental assessment studies, expanded environmental impact report, traffic studies, engineer’s surveys, and a new parking structure design.

BACKGROUND
Along with the success of Brentwood’s Downtown District comes pressure on parking resources. The existing distribution of the Downtown parking resources does not serve peak demand in an efficient manner.

The City’s Comprehensive Economic Development Strategic Action Plan dated July 2001 identified the Downtown’s ability to support an additional 80,000 square feet of restaurant and shopping space to create the kind of “main street” environment that enhances shopping opportunities, encourages pedestrian-oriented atmosphere, and promotes cultural and community functions. The first 40,000 square feet is supportable within the next ten years, with the remaining 40,000 square feet built within the following ten years. The Action Plan suggested that parking for the additional retail space in the Downtown District should be both accessible and readily available, and should be located to avoid interrupting the flow of pedestrian traffic and shopping vistas that encourage people to walk from site to site once they get out of their cars.

To address the parking deficiencies and implement the Action Plan for the Downtown District, the Redevelopment Agency has embarked on studies and analyses to investigate the feasibility of adding retail space to the Downtown District, the required parking for the new retail, and parking facilities for future growth in the Downtown.

As part of the continuing investigation, staff recommends the Redevelopment Agency approve a professional services agreement with Watry Design to add Study Area 7. The attached proposal from Watry Design includes the same scope of services as performed for other study areas. Watry will prepare the necessary CADD bases, design alternates to fit on Study Area 7, estimates of probable construction costs, parking financial analysis, architectural treatments, massing model, suitability of site, net new stalls, and necessary reports.

FISCAL IMPACT
The proposed amount as shown on the attached proposal is $48,000, and has been accounted for in the Redevelopment Agency Budget. Staff proposes the Executive Director be authorized to execute change orders up to 15% of the contract amount, for a not to exceed amount of $55,200. This contract shall be funded entirely by the Agency’s Tax Allocation Bond proceeds.

Attachments: Resolution
Professional Services Agreement and Scope of Services

RESOLUTION NO. RA-

A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD AUTHORIZING THE AGENCY TREASURER TO USE A PORTION OF THE AGENCY’S 2001 TAX ALLOCATION BONDS PROCEEDS TO FUND THE PROFESSIONAL SERVICES AGREEMENT WITH WATRY DESIGN, INC., TO PREPARE DESIGNS AND STUDIES FOR STUDY AREA 7 AS A POTENTIAL SITE FOR A RETAIL/PARKING STRUCTURE IN DOWNTOWN DISTRICT

WHEREAS, the Redevelopment Agency of the City of Brentwood (“Agency”) adopted its 2003-2004 Budget on June 10, 2003, by Resolution No. RA-69; and

WHEREAS, the Agency desires to memorialize its expenditure approvals for redevelopment programs and activities that are funded by the Agency’s 2001 Tax Allocation Bond Proceeds that promote, establish, develop and support economic development, business and affordable housing opportunities within the Merged Redevelopment Project Areas; and

WHEREAS, the Agency requested the additional investigation of Study Area 7 as a potential site for a retail/parking structure in the Downtown District; and

WHEREAS, the Agency desires to fund the studies and investigations necessary to determine the feasibility of Study Area 7 as a potential site for a retail/parking structure in the Downtown District.

NOW, THEREFORE BE IT RESOLVED that the Redevelopment Agency of the City of Brentwood authorizes the Agency Treasurer to use a portion of the Agency’s 2001 Tax Allocation Bond Proceeds to fund the professional services agreement with Watry Design, Inc., for the preparation of the necessary retail/parking structure designs and related studies in the amount of $48,000.00, plus a 15% contingency.

PASSED, APPROVED AND ADOPTED by the Redevelopment Agency of the City of Brentwood at a regular meeting held on the 9th day of December 2003, by the following vote:

AYES: Members
NOES:
ABSENT:

_____________________________
Brian Swisher
Agency Chairman

ATTEST:

__________________________________
Karen Diaz, CMC
Agency Secretary

AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES
OF WATRY DESIGN, INC.

This Agreement, made and entered into this 10th day of December 2003, by and between the BRENTWOOD REDEVELOPMENT AGENCY a municipal corporation existing under the laws of the State of California, hereinafter referred to as “AGENCY”, and Watry Design, Inc., 815 Hamilton Street, Redwood City, CA 94063, hereinafter referred to as CONSULTANT”.

RECITALS

A. AGENCY desires certain professional consultant services hereinafter described.

B. AGENCY 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

The scope of services to be performed by CONSULTANT under this Agreement is for a professional parking feasibility study and as described in Exhibit “A” Scope of Services.
SECTION 2 – DUTIES OF CONSULTANT

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.

CONSULTANT represents that it is qualified to furnish the services described under this Agreement.

CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.

It is understood that Michelle Wendler, Architect will be the designated Project Manager providing services to the AGENCY and this designated representative shall not be replaced without the AGENCY’s approval.

SECTION 3 – DUTIES OF AGENCY

AGENCY shall provide pertinent information regarding its requirements for the project.

AGENCY 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

The services to be performed under this Agreement shall commence on December 10th, 2003 and continue until services outlined in Exhibit “A” are complete.

SECTION 5 – PAYMENT

Payment shall be made by AGENCY only for services rendered and upon submission of a payment request and AGENCY approval of the work performed. The AGENCY shall pay the CONSULTANT at the rates, shown in Exhibit “A”, and for the hours actually performed by the CONSULTANT in an amount not to exceed $55,200.

SECTION 6 – TERMINATION

Without limitation to such rights or remedies as AGENCY shall otherwise have by law, AGENCY 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.

Upon termination and upon AGENCY’S payment of the amount required to be paid, documents become the property of AGENCY, and CONSULTANT shall transfer them to AGENCY 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

All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of AGENCY, whether the project for which they are made is executed or not. Use of the instruments of professional service by AGENCY for other than the project, is at AGENCY’S sole risk without legal liability or exposure to CONSULTANT.

SECTION 8 - CONFIDENTIALITY

All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by AGENCY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or AGENCY without the written consent of AGENCY before any such release.

SECTION 9 – INTEREST OF CONSULTANT

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

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 AGENCY 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 AGENCY while providing services under this Agreement.

SECTION 11 – INDEMNITY

CONSULTANT, in the performance of professional services, under this Agreement shall indemnify, defend, and hold harmless AGENCY, its directors, officers, employees and agents from any claim, loss, injury, damage, and expense and liability to the extent arising out of the negligence, errors, omissions, or wrongful acts of CONSULTANT, its employees, subcontractors, or agents. For liability for other liability arising out of professional services, CONSULTANT shall indemnify, defend, and hold harmless, AGENCY, its directors, officers, employees, and agents from any loss, injury, damage, and expense and liability resulting from injury to or death of any person and loss of or damage to property, or claim of such injury, death, loss or damage, caused by an act or omission in the performance under this Agreement by CONSULTANT, its employees, subcontractors, or agents, except for any loss, injury, or damage caused by the active negligence or willful misconduct of personnel employed by AGENCY.

SECTION 12 – INSURANCE

The CONSULTANT shall provide and maintain:
A. 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.
B. Automobile Liability Insurance, occurrence form, with a limit of not less than $500,000.00 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles.
C. Errors and omissions insurance in the minimum amount of $1,000,000.00 aggregate.
D. Workers Compensation in at least the minimum statutory limits.
E. General Provisions for all insurance. All insurance shall:
1. Include the BRENTWOOD REDEVELOPMENT AGENCY, 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. Be primary with respect to any insurance or self-insurance programs of AGENCY, its officers, employees, and volunteers.
3. Be evidenced, prior to commencement of services, by properly executed policy endorsements in addition to a certificate of insurance.
4. No changes in insurance may be made without the written approval of the AGENCY Attorney's Office.

SECTION 13 - NONASSIGNABILITY

Professional Services of Consultant: Both parities hereto recognize that this Agreement is for the professional services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of AGENCY.

SECTION 14 - RELIANCE UPON PROFESSIONAL SKILL OF CONSULTANT

It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled, knowledgeable and experienced in the profession necessary to perform the work and will perform the work agreed to be done under this Agreement utilizing a specialist standard of care and that AGENCY 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 AGENCY does not operate as a release of consultant from said obligation.

SECTION 15 - 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 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

Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, 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 $5000 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 $5000 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this Agreement.

SECTION 17 - 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 18 - MEDIATION

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 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.

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

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

CONSULTANT shall testify at AGENCY'S request if litigation is brought against AGENCY in connection with CONSULTANT'S services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT'S wrongdoing, AGENCY 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

All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:

To AGENCY: BRENTWOOD REDEVELOPMENT AGENCY
150 City Park Way
Brentwood, CA 94513

To CONSULTANT: Watry Design, Inc.
815 Hamilton Street
Redwood City, CA 94603

SECTION 22 – AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT

This document represents the entire and integrated Agreement between AGENCY 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 AGENCY and CONSULTANT

SECTION 23 – GOVERNING LAW

This Agreement shall be governed by the laws of the State of California.

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

BRENTWOOD REDEVELOPMENT WATRY DESIGN, INC.
AGENCY

___________________________ ___________________________
JOHN STEVENSON, MICHELLE WENDLER
EXECUTIVE DIRECTOR PRINCIPAL

APPROVED AS TO FORM:

___________________________
Dennis Beougher, Agency Attorney

EXHIBIT “A”

(SCOPE OF SERVICES)

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov