HomeMy WebLinkAboutAgr 2020-09-10 (O'Rourke and Associates) TOWN OF TIBURON
1505 Tiburon Boulevard, Tiburon, CA 94920
AGREEMENT FOR PROFESSIONAL SERVICES
Town of Tiburon General Plan Update and Environmental Analysis
August 3, 2020
This Professional Services Agreement (the"AgreemenY') is dated September 10, 2020 and is by and
between the Town of Tiburon, a public body of the State of California ("Town") and O'Rourke and
Associates, a sole proprietor relating to planning consulting services to prepare and manage the
Tiburon General Plan Update.
RECITALS:
WHEREAS, Government Code section 53060 permit the City to enter into agreements for professional
services with individuals specially trained and experienced and competent to perform those services; and
WHEREAS, Consultant is willing to render such professional services, as hereinafter defined, on the
following terms and conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, stipulated and agreed, the parties agree as follows:
AGREEMENT:
1. DESCRIPTION OF CONSULTANT'S ��RVICES. Services are as described in the 1"own's
Proposals, Exhibit 1, and the following:
The consultant team will complete the tasks as outlined within Exhibit 1, O'Rourke 8�Associates
Tiburon General Plan Update,dated November 25, 2019.
2. COMPENSATION FOR CONSULTANT'S SERVICES. Compensation for the Services shall be
(select one):
[ x ] Lump Sum of$ 794, 019 with progress payments; or
[ ] Time and materials, per schedule of rates and charges included in Exhibit 1, with a
guaranteed not to exceed price of$
3. EFFECTIVE DATE AND TERM.
The effective date of this Agreement is September 10, 2020 and it shall terminate no later than
September 10, 2022.
4. PERSONNEL SUPPLIED FOR CONSULTANT'S SERVICES. Consultant shall use only the
personnel listed below (resumes attached) in performing the Services. (If subconsultants are used,
list the firm, personnel and attach resumes).
O'Rourke & Associates, Sustainable Community Pl�hning (SCP), WRT, TJKM Transportation
Consultants, De Novo Planning Group, Saxelby Acoustics, and Peak and Associates
5. TERMS AND CONDITIONS. Consultant shall perform the Services identified herein, in accordance
with the terms and conditions of this Agreement, including without limitation, terms regarding
Compensation, Schedule, Personnel, Annex "A" Agreement Terms and Conditions, and Annex "8"
"Town of Tiburon 7/20 1 Agreement for Professional Services
Insurance. Cansultant acknowledges its opportunity ta negotiate such terms and conditions.
6. LIMITATIONS. Changes made to printed Terms and Conditions on this Agreement are nuil and void
unless appraved tn writing by the Tawn.
7. I1SE OF AGREEMENT. The Agreement number must appear on all invoices and correspondence.
Send invoices in duplicate to Town of Tihuron, Community Development Department 1505
Tiburon Boulevard,Tiburan, CA 94920, immediately upon performance.
8. For purpases of this Agreement, Tawn and Consuitant shall direct all communications to sach other
as fallows:
Town:
Dina Tasini
Director of Comrnunity Development
Tiburon, CA 94920
Phone:(415)435-7393 �
Fax: ( )
Emaii:dtasini@townoftiburon.org
Cansultant:
Christine C?'Rourke
Principal
2Q Nunes Drive
Novata.CA 94945
{415}�13-29U7
c�E�ri�����.� �e�rr����.���
IN WlTNESS WHEREOF the parties have executed this Agreement in duplicate as af the dates
identified below.
TOWt�C1i=TtBURON: C4AlSttLTANT:
r _.
�1,. �
.� �,�
Dina Tasini, Director of Community Development �`���`p�'� � ����'����� �������
'[S'ignature of Coi�sultant]
[Rlame and Title of Dept. Director]
Date: Sept er 10 0 ��F�'1 r't�w�3/�C" �' /�L:..,����-��>'
[Please print name of Consuitant�
Title: `�J�t!�t�'.� 7�;j �
Town M ger �FY
� � (If Corporafion: �Chairman, President, or Vic�
c� President]
oate: / �� �--� 1
Date: `�l ll����-�'
� f
Attest: � ���_i�
[Town erk]
� 7'o�vn of'I'iburo��7/2U ��� � � � � � 2 �� � �Itgrceinent for PrQfessionaJ Services
Approved as to form and procedure:
�..
Town Attorney -'�`�```
END OFDOCUMENT
Town of Tiburon 7/20 3 Agreement for Professional Services
ANNEX A—PURCHASE ORDER TERMS AND CONDITIONS
This is an Annex to the Agreement for Professional Services Agreement dated September 10,
2020 ("Agreement") between the Town and Consultant, as described therein, for the provision of
professional services ("Services").
ARTICLE 1 —TERMS OF PERFORMANCE
1.01 Agreement Force and Effect. The provisions of this Agreement constitute the entire agreement
between the Consultant and Town regarding the Services, shall supersede all other prior
purchase orders/agreements between Consultant and Town with respect to the Services, and
shall control over any inconsistent provisions in any Consultant-prepared attachments hereto. No
representation, term or covenant not expressly specified in this Agreement shall, whether oral or
written, be a part of this Agreement. Town is not responsible for Services rendered without the
authority of an Agreement on this form.
1.02 Performance of Services. Consultant represents that it possesses the requisite training,
licenses and permits necessary to perform the Services, and that its performance of the Services
shall conform to the standard of practice of a professional having specific experience and
expertise in professional services of like nature and complexity of the Services.
1.03 Licenses. If a license of any kind, which term is intended to include evidence of registration, is
required of Consultant, its employees, agents, or subcontractors by federal or state law,
Consultant warrants that such license has been obtained, is valid and in good standing, and shall
be kept in effect all times during the term of this agreement.
1.04 Progress and Coordination. Upon Town's request, Consultant shall provide Town with
progress submittals showing status of Services, at times and increments as Town may
reasonably request, and shall provide Town with a progress schedule for performance of the
Services, at times and in a level of detail as Town may reasonably request. Consultant shall
coordinate with Town and authorities with jurisdiction as necessary to perform the Services. Time
is of the essence in the performance of the Services.
1.05 Plans, Specifications, Reports, Deliverables. Work product under this Agreement shall be
professional in appearance, comply with the requirements of this Agreement and with design
criteria established by Town, applicable laws and codes, and with all applicable professional
standards. Services shall meet this standard within the agreed compensation and schedule;
services necessary to correct work product, errors or omissions in work product, shall not entitle
Consultant to an increase in compensation.
1.06 No Waivers. The granting of any payment, and any inspections, reviews, approvals or oral
statements by any Town representative, or certification by any governmental entity, shall not limit
or waive ConsultanYs obligations under this Agreement. Either party's waiver of any breach, or
the omission or failure of either party, at any time, to enforce any right reserved to it, or to require
strict performance of any provision of this Agreement, shall not be a waiver of any other right to
which any party is entitled, and shall not in any way limit or modify that party's right thereafter to
enforce or compel strict compliance with every provision hereof.
1.07 Modifications. This Agreement may not be modified, nor may compliance with any of its terms
be waived, except by written instrument executed and approved by fully authorized
representatives of Town and Consultant. ConsultanYs authorized representative is the individual
signing this Agreement unless Consultant otherwise informs Town in writing.
1.08 Payment Requests. Consultant shall submit all billings with all necessary invoices, time records,
deliverables, or other appropriate evidence of performance, after which Town shall make
payment at the earliest practicable time and no later than 45 days after invoice submittal. If
"Cown of Tiburon 7/20 Annex A- 1 Purchase Order for Professional Services
requested by Town to facilitate the payment process and track progress, Consultant shall provide
Town with an itemization of its compensation according to a Work Breakdown Structure ("WBS")
in a form Town supplies or approves (at Town's option), that defines all Agreement tasks
(Consultant's and Subconsultants'), along with a project schedule defining the time line for each
task, a project budget defining the planned man-hours and costs for each task, and a schedule of
deliverables defining each deliverable to be provided to Town.
1.09 Scope of Compensation. Agreed method of compensation shall be full compensation for all
Services required, performed or accepted under this Agreement, and Consultant shall not be
entitled to compensation or reimbursement beyond or outside of agreed compensation. If
Consultant previously commenced services within the scope of the Services, then the services
performed and the compensation paid shall be subject to the terms of this Agreement.
1.010 Additional Services. Payment for Additional Services shall require a written addendum or
amendment, negotiated and signed by the Consultant and Town prior to commencing work of
Additional Services, providing for the scope, schedule and terms of compensation.
ARTICLE 2—LEGAL AND MISCELLANEOUS
2.01 No Assignment. Consultant shall not subcontract any portion of the Services or otherwise
assign this Agreement without prior written approval of Town, and Consultant shall remain
responsible for compliance with all terms of this Agreement, regardless of the terms of any such
assignment.
2.02 Records and Audit. At Town's request, Consultant shall make available to Town, its authorized
agents, officers, or employees, for audit, photocopy or compilation, any and all ledgers, books of
accounts, invoices, payrolls, vouchers, cancelled checks, correspondence, internal memoranda,
calculations, drafts, and other records or documents evidencing or relating to the performance of
the Services (hard copy or electronic), expenditures and disbursements charged to Town in
connection with the Services. Consultant shall maintain such documents for at least three (3)
years following completion of the Services. Such rights shall be specifically enforceable.
2.03 Independent Contractor. Consultant is an independent Contractor and does not act as Town's
agent in any capacity, whatsoever. Consultant is not entitled to any benefits that Town provides
to Town employees, including, without limitation, worker's compensation benefits or payments,
pension benefits, health benefits or insurance benefits. Terms within this Agreement regarding
direction apply to and concern the result of the Consultant's provision of Services, not the means,
methods, or scheduling of the ConsultanYs work. Consultant shall be solely responsible for the
means, methods, techniques, sequences and procedures with respect to its provision of Services
under this Agreement. Consultant shall pay all payroll taxes imposed by any governmental entity
and shall pay all other taxes not specifically identified in this Agreement as Town's responsibility.
2.04 Indemnity/Liability. To the fullest extent allowed by law (including without limitation California
Civil Code Sections 2782 and 2782.8), Consultant shall defend (with legal counsel reasonably
acceptable to Town), indemnify, and hold harmless the Town of Tiburon, its officers, directors,
officials, agents, employees, and volunteers (collectively, "Indemnitees") from and against any
and all claims, suits, expenses, liability, cause of action, loss, cost, damage, injury (including,
without limitation, economic harm, injury to or death of any person, including an employee of
Consultant or its Subconsultants), of every kind, nature, and description, at law or equity,
(including without limitation, incidental and consequential damages, court costs, attorneys' fees,
litigation expenses and fees of expert consultants or expert witnesses incurred in connection
therewith and costs of investigation) (collectively "Liabilities"), that arise out of, pertain to, or
relate to any negligence, recklessness, or willful misconduct of Consultant, any Subconsultant,
anyone directly or indirectly employed or retained by them, or anyone that they control. In the
event one or more defendants is unable to pay its share of defense costs due to bankruptcy or
dissolution of the business, the Consultant shall meet and confer with other parties regarding
"1'own of Tiburon 7/20 Annex A-2 Purchase Order for Professional Services
unpaid defense costs. The Consultant's obligations to indemnify, defend, hold harmless the
Indemnitees shall not apply to the extent that such Liabilities are caused in whole or in part by the
sole negligence, active negligence, or willful misconduct of such Indemnitee but shall apply to all
other Liabilities, and in no event shall the cost to defend charged to the Consultant exceed the
ConsultanYs proportionate percentage of fault.
2.05 Conflict of Interest. Consultant represents and warrants that it presently has no interest, and
shall not have any interest, direct or indirect, which would conflict in any manner with the
performance of work and services required under this Agreement. Without limitation, Consultant
represents to and agrees with Town that Consultant has disclosed any potential conflict of
interest, and will have no future conflict of interest, in providing Town services hereunder,
including but not limited to, any interest (financial, share ownership, shared management, shared
directors, or reporting responsibilities) Consultant may presently have, or will have in the future,
with respect to any other person or entity (including but not limited to potential suppliers, vendors,
consultants, contractors, or regulatory agency) which may have an interest in the subject matter
of the Services.
2.06 Confidentiality. Any information, whether proprietary or not, made known to or discovered by
Consultant during the performance of or in connection with this Agreement for Town, will be kept
confidential and not be disclosed to any other person. Consultant will immediately notify Town in
writing if it is requested to disclose any information made known to or discovered by Consultant
during the performance of or in connection with this Agreement. These conflict of interest,
confidentiality and future service provisions and limitations shall remain fully effective indefinitely
after termination of services to Town hereunder.
2.07 Ownership of Results. Any interest (including copyright interests) of Consultant or its
contractors or subconsultants (together, "Subconsultants"), in studies, reports, memoranda,
computational sheets, drawings, plans or any other documents (including electronic media)
prepared by Consultant or its Subconsultants in connection with the Services, shall become the
property of Town. The transfer of ownership shall take place once all obligations by the Town are
complied with under the Agreement including but not limited to payment in full for services
rendered by the Consultant and Subconsultants pursuant to the terms of this Agreement. To the
extent permitted by Title 17 of the United States Code, work product produced under this
Agreement shall be deemed works for hire and all copyrights in such works shall be the property
of Town. In the event that it is ever determined that any works created by Consultant or its
Subconsultants under this Agreement are not works for hire under U.S. law, Consultant hereby
assigns to Town all copyrights to such works. With Town's prior written approval, Consultant may
retain and use copies of such works for reference and as documentation of experience and
capabilities. As respects ConsultanYs standard details and proprietary design instruments of
service (not specific to this Agreement), however, Town shall have only a non-exclusive but
otherwise unrestricted license to use the materials prepared in connection with this Agreement.
2.08 Non-Discrimination Policy. Consultant shall not discriminate against any employee or applicant
for employment, nor against any Subconsultant or applicant for a subcontract, because of race,
color, religious creed, age, sex, actual or perceived sexual orientation, national origin, disability as
defined by the ADA or veteran's status. To the extent applicable, Consultant shall comply with all
federal, state and local laws (including, without limitation, all Town and Town ordinances, rules
and regulations) regarding non-discrimination, equal employment opportunity, affirmative action
and occupational-safety-health concerns, shall comply with all applicable rules and regulations
thereunder, and shall comply with same as each may be amended from time to time. Consultant
shall provide all information reasonably requested by Town to verify compliance with such
matters. Consultant stipulates, acknowledges and agrees that Town has the right to monitor
ConsultanYs compliance with all applicable non-discrimination requirements, and may impose
sanctions upon a finding of a willful, knowing or bad faith noncompliance or submission of
information known or suspected to be false or misleading.
Town of T'iburon 7/20 Annex A-3 Purchase Order for Professional Services
2.09 Termination and Suspension. (i) Town may, with or without cause, direct Consultant to
suspend, delay or interrupt Services, in whole or in part, for such periods of time as Town may
determine in its sole discretion. (ii) Town may terminate performance of the Services under this
Agreement in whole, or from time to time in part, for default, should Consultant commit a material
breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days
of the date of Town's written notice to Consultant demanding such cure, in which case Consultant
shall be liable to Town for all reasonable loss, cost, expense, damage and liability resulting from
such breach and termination. (iii) Town may terminate performance of the Services under this
Agreement in whole, or from time to time in part, for convenience, whenever Town determines
that such termination is in Town's best interests, in which case Consultant shall be entitled to
recover compensation and costs for services performed to the effective date of termination, but
may recover no other cost, damage or expense. The Town may condition payment of such
compensation upon the ConsultanYs delivery to the Town of any and all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the Town in connection with this Agreement. Consultant shall
continue its work throughout the course of any dispute, and Consultant's failure to continue work
during a dispute shall be a material breach of this Agreement.
2.010 Execution; Venue; Limitations. This Agreement shall be deemed to have been executed in the
Town of Tiburon, County of Marin. The exclusive venue for all disputes or litigation arising out of
this Agreement shall be in the Superior Court of the County of Marin, unless the parties agree
otherwise in writing. Enforcement of this Agreement shall be governed by the laws of the State of
California, excluding its conflict of laws rules. Except as expressly provided in this Agreement,
nothing in this Agreement shall operate to confer rights or benefits on persons or entities not party
to this Agreement. As between the parties to this Agreement, any applicable statute of limitations
for any act or failure to act shall commence to run on the date of Town's issuance of the final
Certificate for Payment, or termination of this Agreement, whichever is earlier, except for latent
defects, for which the statute of limitation shall begin running upon discovery of the defect and its
cause.
ARTICLE 3—CONSTRUCTION OF AGREEMENT
3.01 Headings. The headings in this Agreement are for convenience only and do not affect the
construction of this Agreement.
3.02 Modifications. Modifications to this Annex "A" Agreement Terms and Conditions shall not be
effective unless approved and initialed by Town's Town Manager.
ARTICLE 4—CONSULTANT'S PROPOSAL AND OTHER CONSULTANT-PREPARED DOCUMENTS
4.01 Exhibit 1. Exhibit 1 consists of Consultant-prepared documents (e.g., Consultant's rate sheet
and proposal, if any) attached to this Agreement for reference only, defining further the scope of
ConsultanYs scope of Services hereunder.
4.02 Complementary Construction. This Agreement, its Annexes and attachments (including but
not limited to the attached Exhibit 1) are deemed complementary; what is called for by one is as
binding as if called for in both and shall be performed by Consultant. In the case of direct conflict,
then the requirement providing Town with the broader scope of services shall have precedence.
4.03 Modifications. Exhibit 1 may not supplement, contradict or qualify Annex `A"Agreement Terms
and Conditions, except as listed below and initialed by the Town Manager.
4.04 Named Personnel and Subconsultants. It is recognized that the named personnel and
Subconsultants in the Agreement are not bound by personal employment contracts to Consultant,
however, Consultant agrees that reassignment of any of the named personnel or Subconsultants
"I'own of Tiburon 7/20 Annex A-4 Purchase Order for Professional Services
during the Services requires prior written approval of Town, which approval shall not be
unreasonably withheld. Under no circumstances may Consultant replace personnel or
Subconsultants with less qualified or less experienced personnel, without Town's written consent,
which may be withheld by Town on a reasonable belief of good cause.
END OF ANNEX "A"
`I'own of Tiburon 7/20 Annex A-5 Purchase Order for Professional Services
ANNEX B—INSURANCE REQUIREMENTS
This is an Annex to the Agreement for Professional Services Agreement dated September 10,
2020! ("Agreement") between Town and Consultant, as described therein, for the provision
of professional services ("Services").
ARTICLE 5—INSURANCE
Consultant's Duty to Show Proof of Insurance. Prior to the execution of this Agreement, Consultant shall
furnish to Town satisfactory proof that Consultant has taken out for the entire period required by this
Agreement, as further described below, the following insurance, in a form satisfactory to Town and with
an insurance carrier satisfactory to Town, authorized to do business in California and rated by A. M. Best
& Company A- or better, financial category size VII or better, which will protect those described below
from claims described below which arise or are alleged to have arisen out of or result from the acts or
omissions of Consultant for which Consultant may be legally liable, whether performed by Consultant, or
by those employed directly or indirectly by it, or by anyone for whose acts Consultant may be liable:
5.01 Commercial General Liabilitv Insurance
Commercial general liability insurance, written on an "occurrence" basis, which shall provide coverage for
bodily injury, death and property damage resulting from operations„ products and completed operations,
and personal and advertising liability, of not less than One Million Dollars ($1,000,000) general aggregate
and One Million Dollars ($1,000,000) each occurrence.
5.02 Professional Liabilitv Insurance
Professional Liability Insurance, either limits of not less than One Million Dollars ($1,000,000) each
occurrence or claim and Two Million Dollars ($2,000,000) aggregate, all with respect to negligent acts,
errors or omissions in connection with services to be provided under this Agreement,with no exclusion for
claims of one insured against another insured and with tail coverage for a period of five (5) years after the
completion of the Services.
5.05 Additional Insured/Waiver of Subroqation
Consultant shall include Town, its officers, officials, agents, employees and volunteers as Additional
Insureds under the General Liability policy, and shall supply specific endorsements for same. The
Additional Insured endorsement under the General Liability policy will be the Additional Insured — Town,
Lessees or Contractors — Schedufed Person or Organization ISO Form CG2010 with the current
applicable revision date. It is acceptable that the Additional Insured endorsement to provide "where
required by written contract." Consultant shall obtain a specific endorsement to its workers'
compensation insurance policy waiving all rights of subrogation against the Town, its officers, officials,
agents, employees and volunteers.
5.06 The policies shall apply separately to each insured against whom claim is made or suit is
brought except with respect to the limits of the company's liability.
5.07 Written notice of cancellation of the policies shall be mailed to Town thirty (30) days in
advance of the effective date thereof.
5.08 Insurance shall be primary insurance and no other insurance or self insured retention
carried or held by any named or additional insureds other than that amount Consultant shall be called
upon to contribute to a loss covered by insurance for the named insured.
Annex B- 1 Purchase Order for Professional Services
SJ-San Jose#4822-9782-9058 v 1
5.09 Certificates of Insurance and Endorsements shall have clearly typed thereon the title of
the Agreement, shall clearly describe the coverage and shall contain a provision requiring the giving of
written notice.
5.10 Nothing herein contained shall be construed as limiting in any way the extent to which
Consultant or any of its permitted subcontractors or subconsultants may be held responsible for payment
of damages resulting from their operations.
If Consultant fails to maintain any required insurance, Town may take out such insurance, and deduct
and retain amount of premium from any sums due Consultant under this Agreement.
END OF ANNEX"B"
Annex B-2 Purchase Order for Professional Services
SJ-San Jose#4822-9782-9058 v(