HomeMy WebLinkAboutAgr 1999-04-07 (Schwartz)AGREEMENT BETWEEN THE TOWN OF
TIBURON AND I.L. SCHWARTZ ASSOCIATES.
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MAR 2 21999 Schwartz Assoc., Inc.
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THIS AGREEMENT, made and entered this I day of Fey, 19995, by and between the TOWN
OF TIBURON, a political subdivision of the State of California, hereinafter called "Town," and I.L.
SCHWARTZ ASSOCIATES, INC., hereinafter referred to as."Company."
RECITALS
A. The Town is required to appoint a Town Engineer and desires to satisfy that requirement by
retaining a qualified independent contractor.
B. Irving L. Schwartz, C.E., ("Engineer") is the principal of Company and has the skill,
experience, ability, background, certification and knowledge to serve as the Town Engineer.
C. The parties wish to contract for the Company and Engineer to provide engineering services
to the Town as provided herein.
AGREEMENT
1. Scope of Engineer Services. Engineer shall provide those Services described in the
Engineer's letters dated February 1, 1999, copies of which are set forth in Exhibits 1 and 2
and in Paragraph 1.C, below.
A. Engineer is hereby appointed the Town Engineer.
B. With the Town's consent, Engineer may delegate portions of the Services to another
principal in the Company with appropriate skill, experience, ability, background,
certification and knowledge, who shall serve as Deputy Town Engineer. In the event
of such delegation, Company and Engineer shall remain responsible for the proper
performance of the Services. The Town hereby consents to John Hugunin to serve
as Deputy Town Engineer.
C. Engineer shall perform work in excess of the Services upon direction of the Town
Manager ("Additional Services").
2. Compensation.
A. Company's compensation for the Services described in Exhibit 2 as "Category I -
General Consulting" shall be as set forth in Exhibit 2. Company shall submit bills for
said Services on a monthly basis, which shall be due within 30 days of receipt by the
Town.
B. With respect to Services described in Exhibit 2 as "Category II - Private Projects,"
Company shall bill the private developer directly. Company and Town shall develop
a form agreement to be required of private developers requiring such services from
Engineer.
C. With respect to Additional Services, Town shall pay those rates set forth in Exhibit 3
except that the principal rate of $120 per hour shall be paid only for work
performed outside of normal business hours that actually requires a principal level
of expertise.
3. Standard of Work; Indemnity. Town has relied on the professional training and ability of
Engineer to perform the services hereunder as a material inducement to enter into this
Agreement. Engineer shall perform the services in a skillful and professional manner
compatible with applicable legal requirements and the standard of quality ordinarily to be
expected of competent professional's in Engineer's field of expertise. Company shall
indemnify, defend and hold Town harmless from and against any claims, liabilities, suits, loss,
cost, expense and damages arising from a negligent act or omission of Engineer's in the
performance of the Services pursuant to this Agreement.
4. Engineer as Independent Contractor; Indemnity. Company (including Engineer and other
agents and employees) is not an agent or employee of the Town but is an independent
contractor not subject to the direction and control of the Town. Without limiting the
foregoing, Company shall maintain complete control of its operations and personnel and shall
be solely liable and responsible to pay all required salaries, wages, expenses, taxes and other
obligations, including, but not limited to, withholding and Social Security. Company shall
indemnify, defend and hold the Town harmless from any such liability that it may incur to the
Federal or State Governments as a consequence of this contract.
Notwithstanding the foregoing, in providing services under this Agreement, Engineer shall
be acting as a Town Official. Therefore, with respect to claims that may be asserted by third
parties arising from Engineer's provision of services as a Town official, Company shall be
entitled to assert any immunities or similar defenses that would be available to the Town in
defense of such actions against a Town official.
5. Audit of Books and Records. Town may, in its sole discretion, undertake an independent
audit and/or evaluation of the Company's records and accounts of expenditures and activities
of Company's performance under this Agreement at Town's own expense. All such records
shall be maintained for period of at least three years after the termination of this Agreement.
Company shall furnish all items necessary in the Town's discretion to complete said audit
and/or evaluation subject to restrictions on confidentiality limited to expenditure or receipt
of program funds, and program quality.
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6. Insurance. Company shall maintain insurance as set forth below. Town shall be added as an
additional insured to all required insurance policies:
A. Comprehensive General Liability: Combined single limit of $1,000,000 for each
single occurrence for bodily injury, personal injury and property damages; umbrella
policy raising the limit to $2,000,000.
B. Comprehensive Automobile Liability: Combined single limit of $1,000,000 for each
single occurrence for bodily injury and property damages; umbrella policy raising the
limit to $2,0002000.
C. Engineers Professional Liability: Combined single limit of $250,000 for each single
occurrence for protection against claims alleging negligent acts, errors and
omissions.
D. Workers' Compensation Coverage: As required by the laws of the State of
California.
E. The insurance required under paragraphs A and B, above, shall be endorsed with
language covering the Town, its officials, officers, employees, agents and volunteers.
Such coverage shall be primary insurance to the Town, its officials, officers,
employees, agents and volunteers and shall act as though a separate policy had been
written for each. Any failure to comply with the reporting requirements of the
policies shall not affect coverage provided to the Town, its officials, officers,
employees, agents and volunteers.
F. The insurance required by this Paragraph shall not be suspended, voided, canceled
or reduced in coverage or in limits except after thirty days written notice has been
received by the Town.
G. Evidence of compliance with the insurance and endorsement requirements of this
Paragraph shall be subject to the approval of the Town Attorney.
7. Ownership of Documents. Re-Use, Indemnity All plans, studies, documents and other
writings prepared for and by Company, his officers, employees and agents and
subcontractors in the course of performing the Services shall be the property of Town
and Town shall have the sole right to use such materials in its discretion without further
compensation to Company or to any other party. Company shall, upon request, provide
such materials to Town.
Town acknowledges that such documents are prepared for use only in connection with
particular projects. Engineer and Company make no representation that said documents
are suitable for re-use on any other project or on any expansion of the original project.
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Any such re-use by Town without specific written approval by Company shall be at
Town's sole risk. Town shall indemnify and hold Company harmless from all claims,
losses, damages and expenses, including attorneys fees, that may arise from Town's
unauthorized re-use of said documents for another project or for any expansion of the
Project.
8. Interest of Engineer. Company is presently engaged in_ several private projects under the
jurisdiction of the Town, which projects are listed in Exhibit 4. Engineer shall not act as the
Town Engineer with respect to said projects. With said projects and this Agreement
excepted, Engineer, on his own behalf and that of the Company, covenants and represents
that he does not have any economic interest in any matter under the jurisdiction of the Town
which would be affected in any manner by the performance of the Services and will not
acquire any such interests. Company and Engineer will comply with the Town's Conflict of
Interest code.
9. Licenses. Engineer represents and warrants to Town that he has all licenses, permits,
qualifications, insurance and approvals of whatsoever nature that are legally required of
Engineer to practice his profession. Engineer represents and warrants to Town that he shall,
at his sole cost and expense, keep in effect or obtain at all times during the term of this
Agreement, any licenses, permits, insurance and approvals that are legally required of
Engineer to practice his profession.
10. Termination of Contract. This Agreement may be terminated immediately by Town for cause
or by either party without cause upon 90 days written notice of termination to the other
party. In event of termination, Company shall deliver to the Town copies of all finished and
unfinished surveys, studies, documents, computer disks, and/or reports pertaining to the
Services. Company shall be entitled to receive just and equitable compensation for any
satisfactory work completed as determined by the Town.
11. Discrimination. In the performance of the terms of this Agreement, Company shall not
engage in nor permit others he may employ to engage in discrimination in the employment
of such persons based on race, color, religion, sex, sexual preference, age, or handicapped
conditions.
12. Mediation. The parties will make a good faith attempt to resolve any disputes arising from
this Agreement through mediation prior to initiating litigation. The parties shall mutually
agree upon a mediator and shall share the costs of mediation equally. If the parties are
unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE
("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five
qualified mediators. Each party shall have the option to strike two of the five mediators
selected by JAMS and the mediator thereafter remaining shall hear the dispute.
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13. Miscellaneous.
A. Other Contract Provisions. Other contract provisions are set forth in Exhibit A. To
the extent that there are any inconsistencies with such Exhibit and the other portions
of this Agreement, the latter shall prevail.
B. Governing Law. This Agreement shall be governed by the laws of the State of
California.
C. Severability. If any provision of this Agreement is found to be invalid or
unenforceable, the validity and enforceability of the remaining portions shall not be
affected unless the effect thereof would materially change the economic burden on
either party.
D. Successors in Interest; Assignment. This Agreement shall be binding on the assigns
and successors in interest to both parties. Neither party may assign their obligations
under this Agreement without the written consent of the other party.
E. Entire Agreement; Amendment. This Agreement represents the entire Agreement
between the parties. This Agreement may only be amended in writing.
14. Exhibits. This Agreement includes the following Exhibits, which are attached hereto and
incorporated herein by reference:
Exhibit 1 Letter re Included Items dated February 1, 1999
Exhibit 2 Letter re Categories of Services dated February 1, 1999
Exhibit 3 Personnel Charges
Exhibit 4 List of Current Private Projects
IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives to
execute this Agreement the day and year above written.
I.L. SCHWARTZ ASSOCIATES, INC. TOWN OF TIB
By:
By:
N
Mogens ]Ach
Mayor, Town of
5
APPROVED AS TO F .
Ann R. DanfortTown Attorney
I.L. SCHWARTZ ASSOCIATES, INC.
CIVIL ENGINEERING AND LAND SURVEYING
February 1, 1999
Robert Kleinert, Manager
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
RE: Tiburon Town Engineer
Dear Bob:
As I continue to think about our proposal to provide you with the services of Town Engineer, I
wanted to clarify a number of items that would be included in, and considered to be a part of, our
hourly rate. They are as follows:
♦ Public Liability and Property Damage Insurance
♦ Worker's Compensation Insurance
♦ Professional Liability (Errors and Omissions) Insurance
♦ Y2K Compliance
♦ Secretarial / Clerical Support
♦ In-House Plan Reproduction, Plotting, and Copying
♦ Computer System for Drafting and Design
♦ Telephone and Postage Charges
♦ Sufficiently large enough staff to provide 24 hour, 7 day week coverage if
necessary in an emergency
♦ No overtime charges for evening meetings or out-of-normal working hours
emergency calls
♦ The services of a fully integrated Civil Engineering and Land Surveying firm
Again, I thank you for considering me and my firm to provide Town Engineering Services to the
Town of Tiburon.
Sincerely,
EXHIBIT 1VO,,
ILS/dlh
CORMSPO.OFF
T WURON.LTR
79 GALLI DRIVE
NOVATO, CA 94949-3705
(415) 883-9200 FAX 883-2763
I.L. SCHWARTZ ASSOCIATES, INC.
CIVIL ENGINEERING AND LAND SURVEYING
February 1, 1999
Robert Kleinert, City Manager
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
RE: Town Engineer
Dear Bob:
Following our telephone conversation this morning, I am providing you with the following
revised scope of services and fees from that shown in our letter to you of January 19, 1999.
We propose to provide the Town of Tiburon, as Town Engineer, under the supervision of the
Town Manager, with the following two general categories of services:
CATEGORY I - GENERAL CONSULTING
We will provide consultation and support for Town Department Heads and Officials on an as
requested basis. We will also address citizens inquiries and complaints. We will provide Civil
Engineering services including Design, Contract Administration and Inspection of capital
improvement projects such as street and drainage work. We will provide input, as requested,
relating to budgeting, facilities maintenance and similar issues and will act as the Town's
representative to the Marin Public Works Association as well as act as an advocate, as necessary,
for the acquisition for State and Federal funding for street improvement, storm damage and
similar projects. We will be available to provide emergency assistance for storms or other
situations as requested by the Town Manager.
We will provide approximately 6 hours per week of the above services within Tiburon with
agreed-upon set "hours."
CATEGORY II - PRIVATE PROJECTS
As requested by Town staff, we will review applications and perform appropriate inspections for
Building Permits, Design Reviews, Tentative Subdivision Maps and similar private development
proposals. We will also review Parcel, Maps and Final Subdivision Maps for conformance with
Town requirements and State law.
COMPENSATION
We propose to receive compensation for the above two categories of work as follows:
79 GALLI DRIVE NOVATO, CA 94949-'705
(415) 883-9200 FAX 883-2763
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Page 2
February 1, 1999
Robert Kleinert, City Manager
Town of Tiburon
RE: City Engineer
Continued
Category I - We propose to perform the first 64 hours per monthly billing cycle (which begins
the 26th of any given month and ends the 25th of the subsequent month) for a fixed fee retainer
of $5,760.00 (64 hours per monthly billing cycle times $90.00 per hour). Any time in excess of
64 hours per monthly billing cycle and any time expended by our survey crew will be billed at
our standard hourly rates unless other arrangements are made prior to the commencement of an
increment of work.
Category II - Charges for review of private development projects including inspections and
attendance at meetings will be billed directly to the private developer, generally with the fee
collected prior to the commencement of our work.
It is proposed that the fixed fee retainer be adjusted proportionately for any work performed
during a portion of the monthly billing cycle either at the commencement or completion of
authorization of our work as Tiburon Town Engineer, as applicable. It is also further proposed
that at the completion of three complete monthly billing cycles, our time expended as Town
Engineer will be evaluated and adjustments ma ►e to our agreement as is applicable or
appropriate.
I trust these revisions will meet with the Town's approval; however if you have any questions or
desire additional information, please feel free to call on me.
Sincerely,
ILS/dlh
CORRESPO.JOB
TIBTRV2.LTR
I . L. SCHWARTZ ASSOCIATES, INC.
CIVIL ENGINEERING AND LAND SURVEYING
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I.L. SCHWARTZ ASSOCIATES, INC.
CIVIL ENGINEERING AND LAND SURVEYING
PERSONNEL CHARGES SHALL BE AS FOLLOWS:
Principal .............................................................................................$120.00 per hour
Senior Civil Engineer / Senior Land Surveyor 98.00 per hour
Civil Engineer / Land Surveyor $ 88.00 per hour
Senior Drafter / Senior Technician 78.00 per hour
Drafter / Technician 68.00 per hour
Survey Crew (2-persons) ....................................................................$136.00 per hour
Survey Crew (3-persons) $204.00 per hour
Clerical $ 36.00 per hour
Travel time to and from job site, is charged in accordance with foregoing schedule.
The charge for Court Appearance or Deposition is $200.00 per hour (4 hours per day minimum).
The minimum charge for attendance at a public hearing or public meeting outside of normal
business hours is $240.00.
MISCELLANEOUS CHARGES:
Special or outside services are charged at cost plus 15 percent.
Extra printing of work already completed is charged on a time and expense basis. Minimum
charge is $5.00.
FEES:
In the absence of specific arrangements to the contrary, the client shall pay the cost of outside
professional services, including soils engineering and/or testing and aerial mapping and also
checking and inspection fees, application and permit fees, bond premiums and title company
charges.
EXH MIT NO.
Effective November 1, 1997
GEN.SECYDATA
PERSCHGS.DOC
79 GALLI DRIVE NOVATO, CA 94949-5705 (415) 883-9200 FAX 883-2763
I.L. SCHWARTZ ASSOCIATES, INC.
CIVIL ENGINEERING AND LAND SURVEYING
CURRENT TIBURON JOBS
6695 Cencal Homes, Inc.
LaCresta Subdivision, Lot 22
Via Los Altos, Tiburon
Single Family Dwelling
Site Plan
6698 Masma Construction
6859 Susan Edwards
LaCresta Subdivision Lots 19, 23, 29 & 30 Single Family Dwelling
Site Plans
1921 Mar West, Tiburon
A.P.N. 059-122-25 & 059-162-01
6860 Biernoff--Hiat Family Trust 36 Old Landing Road, Tiburon
A.P.N. 38-162-44 & 38-171-66
6872 Dr. Fraser Muirhead 4200 Paradise Drive, Tiburon
A.P.N. 3 8-171-42, 43, 46 & 47
6876 The Ned's Way Garden Homes, LLC Ned's Way at Tiburon Blvd., Tiburon
A.P.N. 58-151-23
6897 TRI Development, LLC Round Hill Oaks Subdivision
Round Hill Road, Tiburon
A.P.N. 58-301-26
6909 Board of Directors 841 Tiburon Blvd., Tiburon
Belvedere-Tiburon Land- A.P.N. 55-252-06
marks Society
Single Family Dwelling
Site Plan
Subdivision
Shoreline Erosion Repair
Plan
Senior Housing Site
Improvement Plans
4 Lot Subdivision Site
Improvement Plans &
Parcel Map
Building Site
Improvement Plan
EXHIBIT NO.~
February 1, 1999
POLICY.PRO
TIBURON.JOB 79 GALLI DRIVE NOVATO, CA 94949-5705 (415) 883-9200 FAX 883-2763