Professional Service Industries/Montero Estates 02PROFESSIONAL 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 Professional
Service Industries, Inc. ("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scone of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to Professional Materials Testing Services as
specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this
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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 Licenses 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.
1.7 Saeci^__a_I 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.
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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 Four Thousand, One Hundred and Ninety Dollars ($4,190.00 ) (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.
4.0 COORDINATION OF WORK
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. Paul R. Hoersting- Prime Consultant
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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 John M. Freeland, Senior Engineer 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 BONDS.
5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently with
its execution of this Agreement, personal and public liability and property damage insurance against all
claims for injuries against persons or damages to property resulting from Consultant's acts or omissions
rising out of or related to Consultant's performance under this Agreement. The insurance policy shall
contain a severability of interest clause providing that the coverage shall be primary for losses arising
out of Consultant's performance hereunder and neither City nor its insurers shall be required to
contribute to any such loss. A certificate evidencing the foregoing and naming City and its officers and
employees as additional insured shall be delivered to and approved by City prior to commencement of
the services hereunder.
The amount of insurance required hereunder shall be determined by the Contract Sum in accordance
with the following table:
Contract Sum Personal Injury/Property Damage Coverage
Less than $50,000 $100,000 per individual; $300,000 per occurrence
$50,000 - $300,000 $250,000 per individual; $500,000 per occurrence
Over $300,000 $500,000 per individual; $1,000,000 per occurrence
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all claims
for injuries against persons or damages to property arising out of the use of any automobile by
Consultant, its officers, any person directly or indirectly employed by Consultant, any subcontractor or
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agent, or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related
to Consultant's performance under this Agreement. The term automobile includes, but is not limited
to, a land motor vehicle, trailer or semi -trailer designed for travel on public roads. The automobile
insurance policy shall contain a severability of interest clause providing that coverage shall be primary
for losses arising out of Consultant's performance hereunder and neither City nor its insurers shall be
required to contribute to such loss. A certificate evidencing the foregoing and naming City and its
officers and employees as additional insured shall be delivered to and approved by City prior to
commencement of the services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws.
Consultant shall procure professional errors and omissions liability insurance in an amount acceptable
to City.
All insurance required by this Section shall be kept in effect during the term of this Agreement and shall
not be cancelable without thirty (30) days written notice to City of proposed cancellation. The procuring
of such insurance or the delivery of policies or certificates evidencing the same shall not be construed
as a limitation of Consultant's obligation to indemnify City, its officers, employees, contractors,
subcontractors, or agents.
5.2 Indemnification. Consultant shall defend, indemnify and hold harmless City, its officers,
employees, representatives and agents, from and against those actions, suits, proceedings, claims,
demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death
of person(s), for damage to property (including property owned by City) and for errors and omissions
committed by Consultant, its officers, employees and agents, which arise out of Consultant's negligent
performance under this Agreement, except to the extent of such loss as may be caused by City's own
negligence or that of its officers or employees.
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time herein
required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any payment(s)
which become due to Consultant hereunder until Consultant demonstrates
compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies City may
have. The above remedies are not the exclusive remedies for Consultant's failure to maintain or secure
appropriate policies or endorsements. Nothing herein contained shall be construed as limiting in any
way the extent to which Consultant may be held responsible for payments of damages to persons or
property resulting from Consultant's or its subcontractors' performance of work under this Agreement.
6.0 RECORDS AND REPORTS.
6.1 Reports. 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.
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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.
7.0 ENFORCEMENT OF AGREEMENT.
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 Disputes. 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 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.
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7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non defaulting
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 Rights 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 Legal 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 Expiration 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 Attomeys' 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' NONDISCRIMINATION.
8.1 Non -liability of City. Officers and Employees. 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 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.
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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.
9.0 MISCELLANEOUS PROVISIONS
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: To Consultant:
CITY OF LA QUINTA Professional Service Industries, Inc.
Attention: John M. Freeland Attention: Paul R. Hoersting
78-495 Calle Tampico 42-240 Green Way, Suite C.
La Quinta, California 92253 Palm Desert, Ca. 92211
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 Authorily. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below.
CITY OF LA QUINTA a California municipal corporation
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Thomas P. Genovese, City Manager Date 4
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ATTEST:
,��4 . A-0.1
u S. Greek, City Clerk
APP VED AS TO O
M. atlierine nson, City rney
CONSULTANT: Professional Se ice Industries
By:
Name:
Title: %Q N,�\c
Date
Wvo%") o"t,G`Z
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Exhibit A
Scope of Services
Montero Estates Sound Wall Improvements, Project No. 2000-12
Services and products to be rendered in performing all work associated with the project may include,
but are not limited to;
Provide a qualified technician as necessary to conduct density tests on footing sub -grade, slope
fill and trench backfill placement as required. There tests will be performed with a nuclear
densometer in accordance with ASTM D2922 or sand cone in accordance with ASTM D1556.
Maximum density curves (ASTM D1557) will be performed on various material types as they
are encountered.
Provide an ACI-certified technician as necessary to make sets of concrete cylinders as needed
and perform slump tests for the footings, grout, and other minor concrete.
Perform compression strength tests on concrete cylinders in accordance with ASTM C39.
Any Non -Compliance results of materials shall be reported to the City's Public Works Engineering
Capital Improvements Department within twenty four (24) hours from the time of sampling.
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Exhibit B
Schedule of Compensation
Payment shall be in full at the rates listed in the Cost Proposal Sheet 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 Four Thousand One
Hundred and Ninety and no/100 Dollars ($ 4,190.00 ) except as specified in Section 1.6 -
Additional Services of the Agreement.
Prevailing Wage - In accordance with Section 1770 of the Labor Code, the City has ascertained and
does hereby specify that the prevailing wage rates shall be those provided in Article 1110-20.0,
WAGE RATES. The said rates shall include all employer payments that are required by Section
1773.1 of the Labor Code. The City will furnish to the Contractor, upon request, a copy of such
prevailing rates. It shall be the duty of the Contractor to post a copy of such prevailing wages at the
job site.
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Exhibit C
Schedule of Performance
Consultant shall complete all services within 120 Consecutive Calendar Days (120 ) days
of the date specified in the notice to proceed.
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None.
Exhibit D
Special Requirements
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