Sonfist, Alan/Bear Creek Path 97PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into by
and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Mr. Alan
Sonfist, Artist ("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to BEAR CREEK BIKE TRAIL URBAN FORESTRY
PROJECT as specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated
herein by this reference (the "services" or "work"). Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance with the standards
prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance
with all ordinances, resolutions, statutes, rules, regulations and laws of the City of La Quinta and any
Federal, State or local governmental agency of competent jurisdiction.
1.3 LiQmspa. Permits- Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be
required by law for the performance of the services required by this Agreement. Consultant shall
have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and
interest, which may be imposed by law and arise from or are necessary for the performance of the
services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it has
thoroughly investigated and considered the work to be performed, (b) it has investigated the site of
the work and fully acquainted itself with the conditions there existing, (c) it has carefully considered
how the work should be performed, and (d) it fully understands the facilities, difficulties and
restrictions attending performance of the work under this Agreement. Should Consultant discover
any latent or unknown conditions materially differing from those inherent in the work or as
represented by City, it shall immediately inform City of such fact and shall not proceed except at
Consultant's risk until written instructions are received from the Contract Officer (as defined in
Section 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the equipment,
materials, papers and other components thereof to prevent losses or damages, and shall be
responsible for all such damages, to persons or property, until acceptance of the work by City, except
such losses or damages as may be caused by City's own negligence. The performance of services
by Consultant shall not relieve Consultant from any obligation to correct any incomplete, inaccurate
or defective work at no further cost to City, when such inaccuracies are due to the negligence of
Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to perform
any additional services without compensation. Any addition in compensation not exceeding five
percent (5%) of the Contract Sum may be approved by the Contract Officer. Any greater increase
must be approved by the City Council.
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Bear Creek Urban Forestry
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any, which
are made a part hereof are set forth in Exhibit "D" (the "Special Requirements"). In the event of a
conflict between the provisions of the Special Requirements and any other provisions of this
Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall
be compensated in accordance with Exhibit "B" (the "Schedule of Compensation") in a total amount
not to exceed NINE THOUSAND NINE HUNDRED Dollars ($9,900) (the "Contract Sum"), except as
provided in Section 1.6. The method of compensation set forth in the Schedule of Compensation may
include a lump sum payment upon completion, payment in accordance with the percentage of
completion of the services, payment for time and materials based upon Consultant's rate schedule,
but not exceeding the Contract Sum, or such other methods as may be specified in the Schedule of
Compensation. Compensation may include reimbursement for actual and necessary expenditures for
reproduction costs, transportation expense, telephone expense, and similar costs and expenses when
and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the form
approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice.
Such invoice shall (1) describe in detail the services provided, including time and materials, and (2)
specify each staff member who has provided services and the number of hours assigned to each such
staff member. Such invoice shall contain a certification by a principal member of Consultant
specifying that the payment requested is for work performed in accordance with the terms of this
Agreement. City will pay Consultant for all expenses stated thereon which are approved by City
pursuant to this Agreement no later than the last working day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "C" (the "Schedule of
Performance"). Extensions to the time period specified in the Schedule of Performance may be
approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of Performance for performance
of the services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of Consultant, including,
but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods, epidemic,
quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency other than
City, and unusually severe weather, if Consultant shall within ten (10) days of the commencement
of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer
shall ascertain the facts and the extent of delay, and extend the time for performing the services for
the period of the forced delay when and if in his or her judgement such delay is justified, and the
Contract Officer's determination shall be final and conclusive upon the parties to this Agreement.
3.4 Term. Unless earlier terminated in accordance with Sections 7.7 or 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services,
except as otherwise provided in the Schedule of Performance.
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Bear Creek Urban Forestry
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its behalf
with respect to the work specified herein and make all decisions in connection therewith:
a. Alan Sonfist
It is expressly understood that the experience, knowledge, capability, and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore,
the foregoing principals shall be responsible during the term of this Agreement for directing all
activities of Consultant and devoting sufficient time to personally supervise the services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be David M. Cosper, Public Works
Director/City Engineer or his designate or such other person as may be designated by the City
Manager of City. It shall be Consultant's responsibility to assure that the Contract Officer is kept
informed of the progress of the performance of the services and Consultant shall refer any decisions
which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval
of City required hereunder shall mean the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability
and reputation of Consultant, its principals and employees were a substantial inducement for City to
enter into this Agreement. Except as set forth in this Agreement, Consultant shall not contract with
any other entity to perform in whole or in part the services required hereunder without the express
written approval of City. In addition, neither this Agreement nor any interest herein may be assigned
or transferred, voluntarily or by operation of law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the services
required herein, except as otherwise set forth. Consultant shall perform all services required herein
as an independent contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role. Consultant shall not at any
time or in any manner represent that it or any of its agents or employees are agents or employees of
City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to services to be performed hereunder which
are reasonably available to Consultant only from or through action by City.
5.0 INSURANCE. INDEMNIFICATION AND BOND .(Section 5.0 shall not be applicable to
this agreement)
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5.1 In r Consultant shall procetp(o
and maintain, at its cost, and submi oncurrently with
its execution of is Agreement, personal anublic liability and property damage i urance against all
claims for injuri against persons or damag property resulting from Consultan s acts or omissions
rising out of o related to Consultant's per rmance under this Agreement. The surance policy shall
contain a sev ability of interest clause pro iding that the coverage shall be prima for losses arising out
of Consults 's performance hereunder a d neither City nor its insurers shall be quired to contribute to
any such loss. A certificate evidencing a foregoing and naming City and its of icers and employees as
ASNFST.AGR Page 3 or
Bear Creek Urban Forestry
additional insured shall be
hereunder.
The amount of insurance
the following table:
Contract Sum
Less than)$5$50,000 Over $30
to and approved by City prior to commencement of the services
hereunder shall be determined by the
$100,000 per
$250,000 per indivic
$500,000 per indiviy
Sum in accordance with
fdual; $300,000 per occurrence
$500,000 per occurrence
$1,000,000 per occurrence
Consul nt shall carry automobile liability insurance of/$1,000,O00 per accident against all claims
for injuries a inst persons or damages to property arising oqt of the use of any automobile by Consultant,
its officers, ny person directly or indirectly employed by Cpfisultant, any subcontractor or agent, or anyone
for who acts any of them may be liable, arising dir tly or indirectly out of or related to Consultant's
perfori nce under this Agreement. The term "aut obile" includes, but is not limited to, a land motor
vehicl , trailer or semi -trailer designed for travel public roads. The automobile insurance policy shall
con in a severability of interest clause provddi that coverage shall be primary for losses arising out of
Co ultant's performance hereunder and neithe ity nor its insurers shall be required to contribute to such
loss. A certificate evidencing the foregoing d naming City and its officers and employees as additional
insured shall be delivered to and approved y City prior to commencement of the services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's Co pensation
laws.
Consultant shall procure professional errors and omissions liability insurance in an amo of acceptable to
City.
i
All insurance required by this Section shall be kept in effect during the term of thi 'Agreement and shall
not be cancelable without thirty (30) days written notice to City of proposed can Ilation. The procuring
of such insurance or t delivery of policies or certificates evidencing the same hall not be construed as
a limitation of C sultant's obligation to indemnify City, its officers employees, contractors,
subcontractors, or gents.
5.2 In mnifi n. Consultant shall defend, indemnify an Id harmless City, its officers,
employ/eepresentatives and agents, from and against those ns, suits, proceedings, claims,
demands, costs,and expenses, including legal costs and at r eys' fees, for injury to or death of
persondamage to property (including property owned y ity) and for errors and omissions
commitConsultant, its officers, employees and agents, h arise out of Consultant's negligent
perfoffnance under this Agreement, except to the extent o su loss as may be caused by City's own
neg gence or that of its officers or employees.
5.3 Remedies. In addition to any other reme ' s ity may have if Consultant fails to provide or
maintain any insurance policies or policy endorsemen t the extent and within the time herein required,
City may, at its sole option: j
a. Obtain such insurance and a ct and retain the amount of the pre s for such
insurance from aXtshereof.
under this Agreement.
b. Order Consultantrk under this Agreement and/or withh any for
which become duant hereunder until Consultant demo strates compliance
with the require
!� ✓✓d
C. Terminate this Agreement.
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Bear Creek Urban Forestry
Exercise of any of the ab a remedies, however, is an alter tive to any other re edies City may
have. The above remedies are of the exclusive remedies for Co sultant's failure to m intain or secure
appropriate policies or endorse4ents. Nothing herein contained s all be construed as li iting in any way
the extent to which Consults may be held responsible for pay ents of damages to p rsons or property
resulting from Consultant's its subcontractors' performance f work under this AgGbement.
6.0 RECORDS AND REPORTS. 6
6.1 Reoorts. Consultant shall periodically prepare and submit to the Contract Officer such reports
concerning Consultant's performance of the services required by this Agreement as the Contract Officer
shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to perform the
services required by this Agreement and enable the Contract Officer to evaluate the cost and the
performance of such services. Books and records pertaining to costs shall be kept and prepared in
accordance with generally accepted accounting principals. The Contract Officer shall have full and free
access to such books and records at all reasonable times, including the right to inspect, copy, audit, and
make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by Consultant,
its employees, subcontractors and agents in the performance of this Agreement, shall be the property of
City and shall be delivered to City upon termination of this Agreement or upon the earlier request of the
Contract Officer, and Consultant shall have no claim for further employment or additional compensation
as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder.
Consultant shall cause all subcontractors to assign to City any documents or materials prepared by them,
and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all
damages suffered thereby.
In the event City or any person, firm or corporation authorized by City reuses said documents and
materials without written verification or adaptation by Consultant for the specific purpose intended and
causes to be made or makes any changes or alterations in said documents and materials, City hereby
releases, discharges, and exonerates Consultant from liability resulting from said change. The provisions
of this clause shall survive the completion of this Contract and shall thereafter remain in full force and
effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents and other
materials prepared by Consultant in the performance of services under this Agreement shall not be released
publicly without the prior written approval of the Contract Officer or as required by law. Consultant shall
not disclose to any other entity or person any information regarding the activities of City, except as
required by law or as authorized by City.
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7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to
performance of the parties in accordance with the laws of the State of California. Legal actions concerning
any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior
Court of the County of Riverside, State of California, or any other appropriate court in such county, and
Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such
action.
7.2 Disoutes. In the event of any dispute arising under this Agreement, the injured party shall
notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall
continue performing its obligations hereunder so long as the injuring party commences to cure such default
within ten (10) days of service of such notice and completes the cure of such default within forty-five (45)
days after service of the notice, or such longer period as may be permitted by the Contract Officer;
provided that if the default is an immediate danger to the health, safety and general welfare, City may take
such immediate action as City deems warranted. Compliance with the provisions of this section shall be
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Rear Creek Urban Forestry
a condition precedent to termination of this Agreement for cause and to any legal action, and such
compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is
not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause
pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant sufficient
funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered
by City due to the default of Consultant in the performance of the services required by this Agreement.
7.4 Waive r. No delay or omission in the exercise of any right or remedy of a nondefaulting party
on any default shall impair such right or remedy or be construed as a waiver. City's consent or approval
of any act by Consultant requiring City's consent or approval shall not be deemed to waive or render
unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party
of any default must be in writing and shall not be a waiver of any other default concerning the same or any
other provision of this Agreement.
7.5 Riahts and Remedies are Cumulative. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the
exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at
the same or different times, of any other rights or remedies for the same default or any other default by
the other party.
7.6 Leaal Action. In addition to any other rights or remedies, either party may take legal action,
at law or at equity, to cure, correct or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain injunctive relief, or to obtain any other remedy consistent
with the purposes of this Agreement.
7.7 Termination Prior To Exoiration Of Term. This section shall govern any termination of this
Agreement, except as specifically provided in the following Section 7.8 for termination for cause. City
reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days'
written notice to Consultant. Upon receipt of any notice of termination, Consultant shall immediately
cease all services hereunder except such as may be specifically approved by the Contract Officer.
Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of
termination and for any services authorized by the Contract Officer thereafter in accordance with the
Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in
Section 7.3.
7.8 Termination For Default of Consultant. If termination is due to the failure of Consultant to
fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2,
take over work and prosecute the same to completion by contract or otherwise, and Consultant shall be
liable to the extent that the total cost for completion of the services required hereunder exceeds the
compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages),
and City may withhold any payments to Consultant for the purpose of setoff or partial payment of the
amounts owed City as previously stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising out of
or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys'
fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION.
8.1 Non -liability of City Officers and Emolovees. No officer or employee of City shall be personally
liable to Consultant, or any successor in interest, in the event or any default or breach by City or for any
amount which may become due to Consultant or to its successor, or for breach of any obligation of the
terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the
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Bear Creek Urban Forestry
Agreement which affects his or her personal interest or the interest of any corporation, partnership or
association in which she or he is, directly or indirectly, interested, in violation of any State statute or
regulation. Consultant warrants that it has not paid or given and will not pay or give any third party any
money or general consideration for obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its heirs,
executors, assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin or ancestry in the performance of this Agreement. Consultant shall take
affirmative action to insure that applicants are employed and that employees are treated during
employment without regard to their race, color, creed, religion, sex, marital status, national origin or
ancestry.
9.1 Notice. Any notice, demand, request, consent, approval, communication either party desires
or is required to give the other party or any other person shall be in writing and either served personally
or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by
notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-
eight (48) hours from the time of mailing if mailed as provided in this section.
To City:
CITY OF LA QUINTA
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92253
Attention: David M. Cosper
To Consultant:
Mr. Alan Sonfist
205 Mulberry Street
New York City, New York 10012
(212) 431-9563
Attention: Alan Sonfist
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and all
previous understanding, negotiations and agreements are integrated into and superseded by this
Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the
parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgement or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect
any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder.
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that
they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this
Agreement the parties hereto are formally bound to the provisions of this Agreement.
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Bear Creek Urban Forestry
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below.
CITY OF LA QUINTA a California municipal corporation
Mayor *4
APPROVED AS TO FORM:
&i,,#%-'I? mac xp�sc�C�l
City Attorney
Date: O ` ` 9s
CONSULTANT ALAN SONFIST, ARTIST
205 MULBERRY STREET
NEW YORK CITY, NEW YORK 10012
(212) 431-9563
By:
Name: �Q �/�C�/l
Title: / / /) 3 )�
Date:
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Bear Creek Urban Forestry
Exhibit A
Scope of Services
The "ARTIST" will perform the following duties in his efforts to prepare the "Masterplan":
• Research - history, geology, flora and fauna indigenous to the area,
• Solicit City and Community input regarding public use and aspirations for the site,
The "ARTIST" shall provide:
1 . A detailed site plan and colorized rendering of the Bear Creek Bike Path landscape "Masterplan".
2. In cooperation with the assigned landscape architect, provide a complete list of plants to be used as
well as the size and location of each.
3. A written narrative of the basic concept of the theme of the park/project.
4. In conjunction with the landscape architect's irrigation design, create a planting scheme that is
compatible, and has the appearance of indigenous to the area.
Exhibit B
Schedule of Compensation
Payment shall be in full at the rates listed in the Schedule of Billing Rates attached herewith for the actual
hours submitted in conformance with Section 2.2 of the Agreement. Total compensation for all work
under this contract shall not exceed NINE THOUSAND NINE HUNDRED Dollars ($9,900) except as specified
in Section 1.6 - Additional Services of the Agreement.
Exhibit C
Schedule of Performance
"Artist" shall complete all services within one hundred eighty (180) consecutive calendar days of the date
of Execution of this Agreement.
T
Exhibit D
Special Requirements
(NONE)
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