Jacobsen Hardy Golf Design/SilverRock 07PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and
entered into by and between the LA QUINTA REDEVELOPMENT AGENCY ("Agency"),
and JACOBSEN/HARDY GOLF DESIGN, INC. ("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 the design of Golf No. 2
at SilverRock Resort, 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.
Consultant further represents that Peter Jacobsen, a member of Consultant's design
team, is a member of the Champion's Tour whose involvement with the facility is both
desired and anticipated by Owner to be of value in the full realization of the City of La
Quinta's golf course and objectives.
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
Agency 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 Consultant's services
required by this Agreement.
1.4 Familiarity with Work. Prior to completing the Preliminary Design Phase,
Consultant warrants that (a) it will have investigated and considered the work to be
performed, (b) it will have investigated the site of the work and fully acquainted itself
with the conditions there existing, (c) it will have carefully considered how the work
should be performed, and (d) it will fully understand the facilities, difficulties and
restrictions with respect to the performance of the work under this Agreement. The
Agency acknowledges that Consultant will, in part, be relying upon information provided
to it by Agency's engineering consultant, RBF Consulting. Should Consultant discover
any latent or unknown conditions materially differing from those inherent in the work or
as represented by Agency, Consultant shall immediately inform Agency of such fact and
shall not proceed with the work except at Consultant's risk until written instructions to
proceed are received from the Contract Officer (as defined in Section 4.2 hereof). If the
Contract Officer directs Consultant not to proceed with the work, Consultant shall not be
liable for the delay.
1.5 Care of Work and Standard of Work.
a. Care of Work. Consultant shall adopt reasonable means during the term of
the Agreement to preserve the work Consultant is performing under this Agreement and
shall be responsible for any damages, to persons, the work or the property that is
caused by Consultant or Consultant's acts or omissions, until the work has been
completed pursuant to the terms of this Agreement, except Consultant shall not be
responsible hereunder for any loss or damages that may be caused by Agency's,
Agency's agents (other than Consultant) or Agency's employee's negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation
to correct any incomplete, inaccurate or defective design work at no further cost to
Agency, when such inaccuracies are due to the negligence of Consultant.
b. Standard of Work. Consultant acknowledges and understands that the
services and work contracted for under this Agreement require specialized skills and
abilities and that, consistent with this understanding, Consultant's services and work will
be held to a heightened standard of quality and workmanship for professionals similar to
Consultant. Consistent with Section 1.4 hereinabove, Consultant represents to Agency
that it holds the necessary skills and abilities to satisfy the heightened standard of work
as set forth in this Agreement.
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 ten percent (10%) of the Contract Sum may be
approved in writing by the Contract Officer. Any greater increase must be approved by
the Agency Board.
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 Hundred Seventy -Six Thousand
and Eight Hundred Dollars ($976,800) (the "Contract Sum"), except as provided in
Section 1.6. The method of compensation set forth in the Schedule of Compensation
shall include payment in accordance with the percentage of completion of the services
as is specified in the Schedule of Compensation. The Contract Sum is inclusive of
amounts paid in reimbursement for actual and necessary expenditures for reproduction
costs, transportation expense, telephone expense, and similar costs and expenses as
specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive
payment, Consultant shall submit to Agency, in the form approved by Agency's Finance
Director, an invoice for services rendered prior to the date of the invoice. Such invoice
shall describe in detail (1) the services provided since the last invoice, (2) the services
which are necessary to complete the phase, and shall specify the percentage of
completion of the applicable phase of work, and (3) 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. Within 14 days of receipt of the invoice,
the Contract Officer or his designee shall notify the Consultant if there is an issue with
regard to verifying the percentage of work completed or if there is a concern with some
other aspect of the invoice. The notice will, to the extent reasonable, identify what
information or correction is necessary to address the issue or concern identified in the
notice. If no such notice is given within the time period, the invoice will be presumed to
be adequate and will be forwarded to the Finance Department for payment. Once the
Contract Officer confirms the percentage of completion of the phase of work identified in
the request for payment, the Agency will pay Consultant for all fees and authorized
expenses stated thereon which are approved by Agency pursuant to this Agreement no
later than thirty (30) days after invoices are received by the Agency's Finance
Department with written confirmation from the Contract Officer that the request is
authorized for payment.
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"). Additional extensions to the time period specified in the
Schedule of Performance may be approved in writing by the Contract Officer. The
parties recognize.that at the Agency's option, there may be a gap in the work on the
project after the Preliminary Design and Routing Plan Phase. The parties have
provided for such a gap though annualized fee adjustments as set forth in Exhibit "B".
3.3 Force Maieure. 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 Agency, 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
judgment such delay is justified, and the Contract Officer's determination shall be final
and conclusive upon the parties to this Agreement.
3.4 Term. The term of this Agreement shall commence on September _
2007. 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 as 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:
• Peter Jacobsen Principal/President
• Jim Hardy Principal/CEO
• Rex Vanhoose Senior Vice-President/Managing Architect
• Brian Johnson Design Associate
It is expressly understood that the experience, knowledge, capability, and
reputation of each of the foregoing principals and employees were a substantial
inducement for Agency 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 Agency. In addition, Jim Hardy shall be required to certify
on all plans and designs submitted to the Agency that he has personally reviewed and
approves the plans and designs set forth in the submittal. Such certification is not
intended to create any individual liability for Jim Hardy to the Agency.
If at any time during the term of this Agreement, either Peter Jacobsen or Jim
Hardy ceases to be a principal in Consultant, the Agency shall have the right, but not
the obligation, to immediately terminate this Agreement. In such event, provided that
Agency has made all required payment prior to the termination, the Agency shall have
the rights to all work product produced as of that termination, and shall have the right to
fully utilize that work product, but shall not have the right to use the name of Consultant,
Peter Jacobsen, or Jim Hardy in connection with the Golf Course. If the Agency
chooses not to exercise its right of termination, it shall have the right to continue to
make full use of the work product produced by Consultant and to identify the work
product produced and the golf course build pursuant thereto as the work or design of
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Consultant, the work or design of Peter Jacobsen, and/or the work or design of Jim
Hardy, provided that it has made all payments required by this Agreement.
4.2 Contract Officer. The Contract Officer shall be Thomas P. Genovese,
Executive Director or such other person as may be designated by the Agency's
Executive Director. 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 Agency to the Contract
Officer. Unless otherwise specified herein, any approval of Agency 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 Agency to enter into 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 Agency. 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 Agency.
4.4 Independent Contractor. Neither Agency 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
Agency and shall remain at all times as to Agency 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 Agency.
4.5 Agency Cooperation. Agency shall provide Consultant with any plans,
publications, reports, statistics, records or other data or information pertinent to services
to be performed hereunder which are available to Consultant only from or through
action by Agency.
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, 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 Agency nor its
insurers shall be required to contribute to any such loss. A certificate evidencing the
foregoing and naming Agency and its officers and employees as additional insured shall
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be delivered to and approved by Agency prior to commencement of the services
hereunder.
The amount of insurance required hereunder shall be:
Personal Iniury/Property Damage Coverage
$2,000,000 per occurrence, $4,000,000 in the aggregate
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 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. If Consultant or Consultant's employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability coverage
for each such person. 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 Agency nor its insurers shall be required to contribute to such loss. r A certificate
evidencing the foregoing and naming Agency and its officers and employees as
additional insured shall be delivered to and approved by Agency prior to
commencement of the services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State
Worker's Compensation laws with employer's liability limits no less than $1,000,000 per
accident or disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be
written on a policy form coverage specifically designed to protect against acts, errors or
omissions of the consultant and "Covered Professional Services' as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay
on behalf of the insured and must include a provision establishing the insurer's duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
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 Agency
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 Agency, its officers, employees, Consultants, or agents.
5.2 Indemnification.
The Consultant shall defend, indemnify and hold harmless the Agency, the City,
their officers, officials, employees, representatives and agents ("Agency Indemnitees")
from and against any and all actions, suits, proceedings, claims, demands, losses,
costs, and expenses, including legal costs and attorneys' fees, for injury to or death of
person(s) and/or for damage to property (including property owned by the Agency) to
the extent caused solely by the negligence or willful misconduct of Consultant, its
officers, anyone employed by Consultant, Consultant's agents or anyone for whose acts
Consultant may be liable.
In the event the Agency Indemnitees are made a party to any action, lawsuit, or
other adversarial proceeding in any way involving claims for which they are indemnified
pursuant to the preceding paragraph, then Consultant shall provide a defense to the
Agency Indemnitees, or at the Agency's option, reimburse the Agency Indemnitees their
reasonable costs of defense, including reasonable attorney's fees, incurred in defense
of such claim. In addition, Consultant shall be obligated to promptly pay any final
judgment or portion thereof rendered against the Agency Indemnitees arising out of
claims for which they are indemnified pursuant to the preceding paragraph.
The Agency shall defend, indemnify and hold harmless the Consultant, its officers,
principal, employees, representatives and agents ("Consultant Indemnitees") from and
against any and all actions, suits, proceedings, claims, demands, losses, costs, and
expenses, including legal costs and attorneys' fees, for injury to or death of person(s)
and/or for damage to property to the extent caused solely by the negligence or willful
misconduct of the Agency, its officers, anyone employed by the Agency, the Agency's
agents or anyone for whose acts Agency may be liable.
In the event the Consultant Indemnitees are made a party to any action, lawsuit, or
other adversarial proceeding in any way involving claims for which they are indemnified
pursuant to the preceding paragraph, then Agency shall provide a defense to the
Consultant Indemnitees, or at the Consultant's option, reimburse the Consultant
Indemnitees their reasonable costs of defense, including reasonable attorney's fees,
incurred in defense of such claim. In addition, the Agency shall be obligated to promptly
pay any final judgment or portion thereof rendered against the Consultant Indemnitees
arising out claims for which they are indemnified pursuant to the preceding paragraph.
5.3 Remedies. In addition to any other remedies Agency may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to
the extent and within the time herein required, Agency may take any one of the
following options, at its sole discretion:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement; or
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; or
C. Terminate this Agreement
Exercise of any of the above remedies, however, is in addition to any other
remedies Agency 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 performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage by
Consultant. Consultant and Agency agree to the following with respect to insurance
provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds Agency, its officials,
employees and agents, using the form of endorsement attached hereto as Exhibit "E".
2. All insurance coverage and limits provided by Consultant and available
or applicable to this Agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the Agency or
its operations limits the application of such insurance coverage.
3. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to Agency and approved of in writing.
4. No liability policy shall contain any provision or definition that would
serve to eliminate so-called "third party action over" claims, including any exclusion for
bodily injury to an employee of the insured or of any Consultant.
5. All coverage types and limits required are subject to approval,
modification and additional requirements by the Agency, as the need arises. Consultant
shall not make any reductions in scope of coverage (e.g. elimination of contractual
liability or reduction of discovery period) that may affect Agency's protection without
Agency's prior written consent.
6. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant's general liability policy, shall be delivered to
Agency at or prior to the execution of this Agreement. In the event such proof of any
insurance is not delivered as required, or in the event such insurance is canceled at any
time and no replacement coverage is provided, Agency has the right, but not the duty,
to obtain any insurance it deems necessary to protect its interests under this or any
other agreement and to pay the premium. Any premium so paid by Agency shall be
charged to and promptly paid by Consultant or deducted from sums due Consultant, at
Agency option.
7. Certificate(s) are to reflect that the insurer will provide thirty (30) days
notice to Agency of any cancellation of coverage. Consultant agrees to require its
insurer to modify such certificates to delete any exculpatory wording stating that failure
of the insurer to mail written notice of cancellation imposes no obligation, or that any
party will "endeavor" (as opposed to being required) to comply with the requirements of
the certificate.
8. It is acknowledged by the parties
coverage required to be provided by Consultant,
primary, non-contributing basis in relation to any
available to Agency.
9. Intentionally deleted.
of this agreement that all insurance
is intended to apply first and on a
other insurance or self insurance
10. Consultant agrees not to self -insure or to use any self -insured
retentions or deductibles on any portion of the insurance required herein and further
agrees that it will not allow any Consultant, Architect, Engineer or other entity or person
in any way involved in the performance of work on the project contemplated by this
agreement to self -insure its obligations to Agency. If Consultant's existing coverage
includes a deductible or self -insured retention, the deductible or self -insured retention
must be declared to the Agency. At that time the Agency shall review options with the
Consultant, which may include reduction or elimination of the deductible or self -insured
retention, substitution of other coverage, or other solutions.
11. The Agency reserves the right at any time during the term of the
contract to change the amounts and types of insurance required by giving the
Consultant ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Consultant, the Agency will negotiate
additional compensation proportional to the increased benefit to Agency.
12. For purposes of applying insurance coverage only, this Agreement will
be deemed to have been executed immediately upon any party hereto taking any steps
that can be deemed to be in furtherance of or towards performance of this Agreement.
13. Consultant acknowledges and agrees that any actual or alleged failure
on the part of Agency to inform Consultant of non-compliance with any insurance
requirement in no way imposes any additional obligations on Agency nor does it waive
any rights hereunder in this or any other regard.
14. Consultant will use its best efforts to renew the required coverage
annually until the one-year anniversary of the opening Golf Course No. 2 at SilverRock
Resort as long as the insurance is commercially reasonably available.
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15. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Consultant's insurance agent to this effect is acceptable. A certificate of insurance
and/or additional insured endorsement as required in these specifications applicable to
the renewing or new coverage must be provided to Agency within five (5) days of the
expiration of coverages.
16. The provisions of any workers' compensation or similar act will not limit
the obligations of Consultant under this agreement. Consultant expressly agrees not to
use any statutory immunity defenses under such laws with respect to Agency, its
employees, officials and agents.
17. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as
a waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured tobe limiting or all-inclusive.
18. These insurance requirements are intended to be separate and distinct
from any other provision in this agreement and are intended by the parties here to be
interpreted as such.
19. The requirements in this Section supersede all other sections and
provisions of this Agreement with respect to insurance to the extent that any other
section or provision conflicts with or impairs the provisions of this Section.
20. Consultant agrees to be responsible for ensuring that no contract used
by any party involved in any way with the project reserves the right to charge Agency or
Consultant for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to Agency. It is not the intent of
Agency to reimburse any third party for the cost of complying with these requirements.
There shall be no recourse against Agency for payment of premiums or other amounts
with respect thereto.
Consultant agrees to provide immediate notice to Agency of any claim or loss
against Consultant arising out of the work performed under this Agreement. Agency
assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve Agency.
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 and agents in the performance of this
Agreement, shall be the property of Agency and shall be delivered to Agency 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 Agency of its full rights of ownership of the documents and
materials hereunder.
In the event Agency or any person, firm or corporation authorized by Agency
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, Agency 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 Agency, except as required
by law or as authorized by Agency.
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 therefore. 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, Agency may take such immediate action as Agency 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 parry's right to take legal action in the event that the dispute
is not cured, provided that nothing herein shall limit Agency's right to terminate this
Agreement without cause pursuant to Section 7.7.
7.3 Intentionally Omitted.
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. Agency's consent or approval of any act by Consultant requiring Agency's
consent or approval shall not be deemed to waive or render unnecessary Agency'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. Agency 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
the termination.
7.8 Termination for Default of Consultant: Suspension of Work for Nonpayment
of Agency. If termination is due to the failure of Consultant to fulfill its obligations under
this Agreement, Agency may, after compliance with the provisions of Section 7.2, take
over work and prosecute the same to completion by contract or otherwise, and
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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 Agency
shall use reasonable efforts to mitigate such damages), and Agency may withhold any
payments to Consultant for the purpose of setoff or partial payment of the amounts
owed Agency as previously stated in Section 7.3. If Agency fails to make the payments
as required by Section 2.2, Consultant shall have the right to suspend its performance
until the Agency complies with the requirements of Section 2.2. Consultant shall have a
reasonable time to return to work after any suspension once the Agency makes the
payments required by Section 2.2. If the Agency fails to make payments of undisputed
amounts owed pursuant to Section 2.2 for 90 days or more, Consultant shall have the
right to terminate this Agreement. If Consultant exercises this right, and the Agency is
in breach of its obligations under this Agreement, the Agency shall not have the right to
use the name of the consultant, Peter Jacobsen, or Jim Hardy in connection with the
Golf Course.
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 AGENCY OFFICERS AND EMPLOYEES: NONDISCRIMINATION.
8.1 Non -liability of Agency Officers and Employees. No officer or employee of
Agency shall be personally liable to Consultant, or any successor in interest, in the
event or any default or breach by Agency 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 Agency 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.
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
13
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 Agency:
LA QUINTA REDEVELOPMENT
Attention: Thomas P. Genovese
Executive Director
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
AGENCY Jacobsen Hardy Golf Course Design
Attention: Rex VanHoose
Senior Vice President
12777 Jones Road, Suite 150
Houston, Texas 77070
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 judgment 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 Authori . 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.
14
IN WITNESS WHEREOF, he parties have executed this Agreement as of the
dates stated below.
LA QUINTA REDEVELOPMENT AGENCY
Date:O / d/ By:! IrYY1 Ct+n��fY�J U'
THOMAS P. GENEVOSE
Executive Director
ATTEST:
VERONICA J. MONRCINO, CMC
Agency Secretary
APPROVED AS TO FORM:
M.M. KATAMNE JEN N
Agency Counsel
Date: Ld p
CONSULTANT: JACOBSEN/HARDY
GOLF DESIGN, INC.
Title:��d
15
Exhibit A
Scope of Services
The following tasks shall be performed Jacobsen / Hardy Course Golf Design, Inc. in the preparation
of the conceptual, design development, and construction plans and specifications for the 18-hole golf
course and during it's construction.
1.0 Conceptual Design Phase
The following scope of work identifies the scope associated with development of
a conceptual plan and specifications for the proposed 18-hole golf course. In
addition to the scope of work described below, the Designer will be available to
respond to all reasonable requests by the Agency and its Project Manager, on
behalf of the Agency, for meetings, correspondence and coordination.
1.1 Existing Project Documentation Review
The Designer shall review existing project information and analyze it to
determine issues, problems, findings and problem resolutions that could
be relevant to the project design and construction.
1.2 Initiate Project
The Designer will initiate the project by meeting with the Agency's steering
committee, the SilverRock Technical Team, staff, the Project Manager,
and other design team members to review the conceptual development
plan, available information, and to discuss the following:
• Project goals, objectives and opportunities as envisioned by the
committee;
• Project design criteria (e.g., environmentally sensitive, mulit-use
concept, etc.);
• Project theming concepts including overall character, landscaping,
architecture, monumentation, lighting, etc.;
• Anticipated mitigation measures and other project site constraints
including boundaries, set backs, well sites, Coachella canal, and
along with those sensitive biological resource areas;
• The mitigation monitoring and reporting program for the SilverRock
project;
• Information that will be available from the Agency, including base
maps, civil engineering plans, etc.;
• Requirements of other design team members directly related to the
Designer's design product, and;
• Project budget and schedule.
1.3 Site Review
The Designer shall attend a site review meeting with the Agency and
Project Manager and other design team members to visit and analyze the
project site.
1.4 Conceptual Golf Course Routing Plan
The Designer shall prepare a conceptual golf course routing plan which
includes the layout of the course at 1"=200'. During the preparation of the
conceptual plan, the Designer will discuss various design options, along
with the advantages and disadvantages with each option. The Designer
will also provide up to three (3) revisions to the concept plan as necessary
in order to arrive at a plan that is acceptable to the Agency. The routing
plan shall depict the following:
• Tees, greens, and fairway boundaries
• Centerlines
• Water Features
• Spatial relationships, including clearances and setbacks to other
special uses
• Bridge locations or other methods of canal crossings
• Score Card
• Preliminary Grading Concept
The Designer shall prepare conceptual grading plans for the golf course in
sufficient detail to delineate the proposed grading concept, including
contours and spot elevations. The Civil Engineer will review the
conceptual plan and prepare a quantity estimate and a cutlfill map for the
project. The conceptual grading plan will include preliminary horizontal
and vertical control for the lake(s) and water features(s).
The Concept Plan shall also include other features necessary for the
Agency to make informed decisions regarding the routing concept.
Following acceptance of the Concept Plan by the Agency, the Designer
will prepare a color rendering of the plan.
1.5 Conceptual Cost Estimate
Following completion of the Concept Plan, the Designer will provide a
conceptual cost estimate which outlines the costs by major construction
cost categories. Cost estimate shall reflect a "cost of living" increase
projected to occur as a result of the golf course construction being
scheduled to commence in 2011, and with completion in 2012.
1.6 Design Schedule
Designer will develop and submit a design schedule to the Agency,
outlining the time requirement for each phase of design. Schedule shall
consider the "stand down" time between the end of the conceptual design
phase and the start of the design development phase of work.
1.7Specifications
The Designer will provide the table of contents for the project
specifications pertaining to the construction of the project components
under the responsibility of the Designer. The table of contents shall be
formatted by Construction Specification Institute (CSI) categories.
1.8Team Interface
The Designer will interface with other design team consultants through the
Agency and Project Manager by incorporating other consultant's design
plan concepts as they relate to the golf course plans and specifications.
The Designer will be responsible for providing review and comment on
other design team consultant plans (e.g., facility architect, landscape
architect, lake designer, etc.) for consistency with the golf plans,
adherence to project theming and for purposes of value engineering.
1.9Base Sheets
During Conceptual Design, the Designer will provide base design
information in computer format to the Landscape Architect, as necessary,
for their use in creating the overall project base sheets for the design
consultant team. This base information will include the conceptual layout
of the golf course, indicating those key design elements as described with
Section 1.4 and their relationship to the other recreational uses. The
Designer will continue to provide base information in computer format
throughout Design Development and Construction Documents as
necessary for use by the appropriate design team consultants in order for
the team to update their plans as necessary.
2.0 Design Development Phase
After approval of the Conceptual Design by the Agency, and in accordance with
the requirements of the golf course design schedule / schedule of performance,
the Designer shall prepare a Design Development Plan package which will refine
the design character of the project and identify speck materials to be used. The
plans will delineate all site construction elements and will include general
grassing concepts. The plans will be developed in typical construction document
format, at 1 "=100' on 30" x 42" sheets, and as further defined by the Agency prior
to initiation.
Due to the time lapse from the end of the conceptual design phase and the start
of the design development phase, the plans shall be based on current, updated
base information to be provided by the project civil engineer, reflecting the "as
built' site conditions.
2.1 Grading
The Designer will prepare grading plans for the golf course in sufficient
detail to delineate the proposed grading concept, including contours and
spot elevations. The project Civil Engineer will review the plan and
prepare a quantity estimate and a cuttfill map for the project. The grading
plan will include horizontal and vertical control for the lake(s) and water
feature(s).
2.2 Drainage
The Designer will prepare a drainage plan for the golf course which
delineates drainage concepts, including structure locations and piping
layout. This plan will be provided to the project Civil Engineer for review
and analysis to determine structure and pipe sizes, and to make
recommendations for additional drainage improvements as necessary.
2.3 Clearing & Staking
The Designer will prepare a clearing and staking plan which includes
dimensions to the centerline of pertinent key golf course features such as
bunkers, tees, greens, turn points, etc. The clearing limits will indicate
native features, such as trees, which will be cleared, saved or relocated,
along with the proposed locations for relocation.
2.4 2.4 Grassing & Seeding Plan
The Designer will prepare a grassing and seeding plan which delineates
the limits of grassing and defines the type of seeding mix to be applied
within each designated area. Seed mix requirements will include
application rates. Areas proposed for re -vegetation will be identified.
(note: as stated previously, the landscape architect will be responsible for
defining the mix requirements for areas of re -vegetation, as well as design
of the native landscaping and irrigation requirements.)
2.5 Specifications
The Designer will prepare draft construction specifications in CSI "Master
Format" for incorporation into the master specification book.
Specifications will be provided both in computer format as well as in hard
2
copy, 8-1/2" x 11" printout. The Designer will coordinate said
specifications with other design team consultants through the Agency and
the Project Manager to assure consistency throughout the design.
2.6 Design Development Cost Estimate
At the completion of the Design Development process, the Designer will
update the conceptual cost estimate based upon the Design Development
plans and specifications. The Design Development cost estimate will
further define the construction items, by providing quantities and unit
costs. Cost estimate shall reflect a "cost of living" increase projected to
occur as a result of the golf course construction being scheduled to
commence in 2011, and with completion in 2012.
2.7 Project Design and Construction Schedule
Designer will prepare a preliminary construction schedule for review, and
will revise the design schedule accordingly.
3.0 Construction Documents Phase
After approval of the Design Development package by the Agency, the Designer
shall prepare a Construction Document package for the key project items as
identified within section 2.0 in sufficient form and detail to facilitate construction
implementation of the proposed improvements.
3.1 Construction Plans
Construction Plans and details for all features of the 18 holes of the golf
course, to include tees, fairways, roughs, greens, mounds, swales,
bunkers, grading for water features, and any other feature as necessary
for the construction of the golf components of the project.
Designer will have no responsibility to prepare plans, specifications or
drawings for the Golf Course clubhouse, half -way house, shelter houses,
sanitary facilities, drinking fountains, maintenance facilities, storm
drainage system, dams, bridges, walls, cart paths, or any other similar
facilities or structures incidental to the Golf Course; provided that Designer
will periodically consult with and advise Agency in relation to such facilities
and render advice, when requested, as to the conceptual location of such
facilities or structures, but Designer will not have any liability to Agency
with respect to the design, location or construction of such facilities or
structures.
3.2 Greens Plans
4.0
3.3
The Designer will develop greens plans for the golf course which provide
sufficient detail and control for construction.
Construction Specifications
The Designer will finalize the construction specifications in CSI "Master
Format" for incorporation into the master specification book. Final
specifications will be provided both in computer format as well as in hard
copy, 8-1/2" x 11" printout which indicates the changes to Design
Development Specifications through italicizing/highlighting. The Designer
will coordinate said final specifications with other design team consultants
through the Project Manager to assure consistency throughout the design.
3.4 Construction Document Cost Estimate
At the completion of the Construction
update the Design Development
Construction Document plans and
Document cost estimate will further
previously developed.
Document process, the Designer will
cost estimate based upon the
specifications. The Construction
refine the quantities and unit costs
The Designer shall provide assistance during the bidding of the project to include
the following:
• Attendance at a pre -bid meeting to be held onsite;
• Provide assistance to the Project Manager to respond to Contractor -
submitted requests for information pertaining directly to the Designer's
scope of work in the form of written clarifications or revisions to plans and
specifications as appropriate;
• Provide assistance for review of Contractor bids;
• Assistance in the review of bid packages and selection of the
Contractor(s) for the golf course.
Construction Process
Throughout the construction of the facility, which is anticipated to occur over a
twelve (12) month period, the Designer will provide construction support,
including field and office services to include the following:
Attend pre -construction meetings at the Agency;
0
5.1
• Review materials, submittals, shop drawings, and system drawings for
conformance with the standards prescribed within the Construction
Documents, and recommend approval or disapproval;
• Provide responses to contractor -issued requests for information pertaining
directly to the Designer's scope of work by preparing additional drawings
or clarification to specifications as necessary;
• Provide assistance for review of the Contractor's cost proposals;
• Available to provide assistance as needed for evaluation of project change
orders;
• Schedule periodic site visits to the job site for on -site review of the
construction of the project in accordance with the approved golf course
plans and specifications;
• Participate in the development of project close out/punchlist
documentation; review and approval of as-builts and warranty/manual
submitted by contractor; verify contractor's comformance to final punchlist.
Construction Performance and Supervision of Work
Designer will not be a party to, nor will it be obligated under, any contracts
entered into for the performance of the construction work, such obligations
being solely the responsibility of the Agency.
Designer will not be responsible under this Agreement for supervising the
work of any contractor with respect to the construction means, methods,
techniques, sequences, or procedures or the safety precautions incident
thereto, nor will Designer be responsible for any contractor's malfeasance
of misfeasance. Designer's efforts will be directed toward advising the
Agency, during the course of Golf Course construction, as to how the
construction is or is not being performed in conformance with the
requirements of the Plan Documents. Designer will keep Agency informed
of the progress of the work and will endeavor to alert Agency to defects
and deficiencies in the work of the contractor during the course of
construction.
Designer will make recommendations to the Agency concerning the
quality and performance of the Work. Agency will be the final judge of the
performance thereunder by the contractor. The Designer will promptly
render interpretations on all claims, disputes and other matters in question
between the Agency and the contractor relating to the execution or
progress of the work under the Designer's plans and specifications
necessary for the proper execution or progress of the work.
The Designer will make recommendations to the Agency's Construction
Manager as to whether the Agency should reject work which does not
conform to Designer's plans or specifications, and as to whether the
7
Construction Manager should order the work to be corrected to conform to
the plans and specifications.
5.2 Applications for Payment
Designer will review contractors application for payment, and will make
recommendations to the Project Manager.
6.0 Post Construction
Within one month prior to the expiration of the Contractor's one year warranty
period, the Designer will inspect the project and provide advice on the apparent
deficiencies in construction.
7.0 Meetings. Presentations and Site Visits
7.1 Design Process
The design process and bidding process are anticipated to occur over a
twelve (12) month period, during which the design team will meet regularly
to review design progress, and periodically to discuss value engineering
issues as well as the project budget and schedule. The Designer should
anticipate up to two (2) meetings per month to be held at the Agency.
7.2 Design Presentations
The Designer shall participate in presentations of the project at the
following milestones:
• Mid -Concept design
• Concept design approval
• Mid -Design development
• Design development approval
• Construction document approval
At mid -concept design, there may be more than one, but no more than
three presentation reviews. Presentations will require preparation of the
presentation materials and sufficient methods of communication to clearly
articulate the project concept, various features of the project and design
emphasis, and other information to ensure consistency with the Agency's
goals and objectives for the project.
7.3 Ground Breaking
0
Both Peter Jacobsen and Jim Hardy will attend the ground breaking event
for the project.
7.4 Grand Opening
Both Peter Jacobsen and Jim Hardy will attend the Grand Opening event
for the golf course.
8.0 Designer's Representation
Designer represents and warrants that it is an expert in the design of golf courses
and that it will design for Agency a first class facility of a quality similar to other
courses designed by Designer, meeting golf industry standards.
9.0 Agency's Responsibilities
9.1 Agency's Provided Information
The Agency will furnish to the Designer at Agency's sole expense such
materials, surveys, tests, maps, analyses and other similar information
requested by the Designer reasonably necessary for the Designer to
execute it's work under this Agreement. The information required to be
provided by the Agency will include, but may not necessarily be limited to,
a complete and accurate topographical survey satisfactory to the
Designer, indicating any and all existing natural and manmade features
such as trees, brush, rock outcroppings, waterways, fences, trails and
buildings on the Golf Course sites, given, where pertinent, the grades and
lines of streets, pavements and adjoining properties, and describing rights,
restrictions, easements, boundaries and contours of the buildings on site;
full information as to soil borings and test pits; chemical or other tests;
hydrological information relating to the site; and sewer, water, gas and
electrical services. The Agency will furnish the requested information with
reasonable promptness after Designer has provided Agency with a
detailed list of items needed by Designer to perform its work. Designer
shall not be responsible or held liable and the Agency hereby agrees to
defend, indemnify and hold Designer harmless for any claims, damages,
and/or causes of actions arising as a result of the inaccuracy in the
information provided by the Agency or its agents under this Section 9.1 or
under Sections 9.2, 9.3, 9.4, or 9.5 below.
9.2 Agency's Professional Consultants
Agency will be responsible for retaining the services of
qualified professional consultants to review the Plan Documents where
required, in order to assure compliance with all applicable laws and
regulations affecting the site, including, without limitation, environmental,
wetlands, land use, zoning and other similar matters. Designer agrees to
work with such consultants as required in the design process. Agency will
supply Designer with copies of all construction, engineering, zoning,
environmental, and other regulations applicable to the Golf Course.
Although Designer will take care to prepare the Plan Documents in
compliance with such regulations, it will be Agency's responsibility to
ensure such compliance. If requested to do so by Agency, Designer will
adjust the Plan Documents to conform to such regulations.
9.2.1 Civil Engineer
In connection with the foregoing, Agency will employ the services of
licensed engineers for the purpose of designing the storm drainage
system for the Golf Course, bridges, walls, cart paths, and any
other facilities or structures which require the services of an
engineer. Such engineers will also be responsible for advising
Designer regarding the impact of applicable regulations and
engineering practices upon Designer's Plan Documents and for
coordinating the storm drainage system with other drainage
features of the Golf Course. Agency acknowledges that Designer's
recommendations (as set forth in the Plan Documents) for storm
water drainage, conceptual cart path locations, soil and materials
movement and placement and other similar recommendations must
be reviewed and confirmed by qualified licensed engineers which
must be retained by Agency at its cost and expense.
9.2.2 Soils Engineer
Agency will retain the services of a qualified soils engineer who will
provide Designer with an analysis of the site of the Golf Course.
Designer will submit a completed set of Plan Documents to the
soils engineer retained by Agency for analysis. If the soils engineer
makes any suggested modifications to the Plan Documents
Designer will make such modifications to the Plan Documents,
Designer will make such modifications at no charge to Agency,
except for such expenses as are required to be paid by Agency
under this Agreement.
9.2.3 Irrigation Designer
10
Agency will retain the services of a qualified Irrigation Designer to
prepare and design the irrigation system for the Golf Course.
Designer will provide Agency with a list of recommended Irrigation
Designers should Agency not have one of its own. Upon
completion of the irrigation plans, Agency will provide the Designer
with a set of the plans for review and approval, prior to
implementation.
9.2.4 Agronomist
Agency will retain the services of a qualified Agronomist to assist
the project team in the analysis and evaluation of site specific data
(i.e. soil tests, water quality tests) and to advise the project team on
the specification of grass types, native vegetation, soil
amendments, and fertilizer.
9.2.5 Landscape Architect
Agency will retain the services of a qualified Landscape Architect to
prepare and design the hardscape (Formal Landscape) portions of
the project. The Designer will assist the Landscape Architect with
the location of the hardscape areas to ensure that they enhance the
golf course and do not compromise playability.
9.2.6 Lake Designer
Agency will retain the services of a qualified Lake Designer to
assist in the design and specification of proposed water feature(s).
Note: The services, information, surveys and reports required by this Section 9.0
will be furnished at Agency's expense, and Designer will be entitled to rely upon
the accuracy and completeness thereof.
9.3 Agency Representative
The Agency's representative shall be as stated in section 4.2 of the
agreement.
9.4 Agency's Prompt Action
The Agency will furnish required information and services and render
approvals and decisions as expeditiously as necessary for orderly
progress of Designer's services and of the work and Designer shall not be
responsible for any delays in Designer's performance caused as a result
of Agency's delay in providing such information.
11
Exhibit B
Schedule of Compensation
Payment shall be in accordance with the schedule of values/payment schedule attached
herewith and submitted in conformance with Section 2.2 of the Agreement. Total
compensation and expense reimbursement for all work under this contract shall not
exceed $976,800.00 except as specified in Section 1-6 - Additional Services of the
Agreement.
1.0 COMPENSATION.
1.1 In consideration of the Consultant's services provided herein to Agency, it
Is agreed that Agency will pay the following fees to the Consultant.
1.2 Fee. The fee to be paid by Agency to Consultant for all design services
rendered by Consultant during the Preliminary Design Phase, Design Development
Phase, Final Design Phase, Construction Phase, and Promotion Services, will be
payable on as follows:
PROJECT TASKS NON -PHASED FEE PHASED FEE
Design / Routing ( $ 80,000,00
',�. • •i ill •1 :!P !6
• -.
Corhpliste In 2011; 6% per year
SUBTOTAL.800,000,00
REIMBURSABLE:
$
J00,00000
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1.3 Expenses in Addition to Fee Provided in Section 1.2 Above.
Reimbursable expenses are in addition to the compensation paid to Consultant and
include following expenditures, and no others, actually incurred by the Consultant and
its employees in the interest of the project, in a total aggregate amount not to exceed
one hundred thousand dollars ($100,000.00):
a. Expense of transportation in connection with traveling to and from
the City of La Quinta and to the Golf Course; living expenses in
connection with out-of-state travel associated solely with this
Project, long distance communications, telex, telefax and overnight
mail.
b. Expense of reproductions, postage and handling of drawings,
specifications and other documents.
C. Payment requests including the above items shall be submitted as
outlined in Section 2.2 of the Agreement and will require the
appropriate supporting documentation, for expenses incurred.
E
Exhibit C
Schedule of Performance
119/015610-0065
845048 03 e09/14/09
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Exhibit D
Special Requirements
1.0 DESIGNER ACCESS. Peter Jacobson, Jim Hardy, Rex Vanhoose and Brian
Johnson shall have the right to play golf course on the course they design, free of
charge, subject to availability and providing a minimum of three (3) days advance
notice. They may be accompanied by up to three guests (not to exceed a foursome).
This provision may not be utilized by any one of the four individuals more than four (4)
times in any one year.
2.0 DESIGNER/JACOBSEN/HARDY GOLF COURSE AND PROMOTIONAL -SERVICES.
2.1 Use of the Jacobsen Hardy and Consultant's Names In Connection with
Identifying the Golf Course Designer.
It is understood that upon and after the signing of this Agreement, the City, the
Agency, and the developers and operators of the SilverRock Resort will be entitled to
utilize the names "Peter Jacobsen" and "Jim Hardy" as well as the name
"JACOBSEN/HARDY GOLF'DESIGN, INC." or "JACOBSEN/HARDY GOLF DESIGN" in
referencing the design or the designer of the golf course. This right shall extend to all
forms of advertising and informational materials. This right of use is subject to the
provisions of Sections 4.1 and 7.8 of the Agreement. This right shall not be subject to
approval by Consultant, or by Peter Jacobson or Jim Hardy, inasmuch as such approval
if given by the signing of this Agreement. In exercising this right of usage, the Agency,
City, developers, and/or operators shall not state or imply that Consultant or its
principals are endorsing or are affiliated with any component of the SilverRock Resort
other than the golf course which is the subject of this Agreement.
2.2 Additional Use of the Jacobsen and/or Hardy Names, Likenesses. Etc.
a. Consultant recognizes that the Agency chose Consultant based in
large part upon Consultant's and Consultant's Principal's reputation
and name recognition, and the Agency's and City's intention of
promoting the golf course and the SilverRock Resort of which the
golf course is a part on the basis of reputation of Consultant and its
Principals. In addition to using the names of Consultant and its
Principals as specified in Section 2.1 immediately above,
Consultant acknowledges that another key benefit that the Agency
and the City expect to receive under this Agreement in exchange
for the consideration referenced in Exhibit B is the promotional
value associated with utilization of the name (beyond that
authorized in Section 2.1), likenesses, logos, photographs, videos,
and images of Peter Jacobson, Jim Hardy, and Consultant with no
additional fees or charges. Consultants and its Principals agree to
coordinate with Agency and the City for no additional fee for using
1191013610-0065
945048 03 .09114/07
1
Jacobsen's and/or Hardy's role as designer in the promotion of the
Golf Course. In connection with promotion of the Golf Course,
Agency and the City may use the Designer's, Jacobsen's and/or
Hardy's name, likeness, and logos, and may use copies or replicas
of plans prepared by Designer and delivered to Agency in
brochures, sales films and videotapes, press releases, and similar
promotional materials and in print and/or electronic media
advertisements. Except as provided in Section 2.1 immediately
above, Agency and City will not in any way make or permit any use
of Designer's, Jacobsen's and/or Hardy's name, likeness, or logos,
or of any likeness of such plans prepared by Designer, without the
express written approval of Designer prior to use. Once
promotional material has been approved for use by Designer,
Agency, the City, and may continue such use without further
approval from Designer, provided the promotional material is used
in the same manner as approved by Designer. As used in this
Agreement, "Designer's name" is "Jacobsen/Hardy Golf Design".
Such use must be limited to Designer's, Jacobsen's and/or Hardy's
role as designer of the Golf Course and will not extend beyond the
Golf Course to include the promotion of any other development or
facility in the same complex as the Golf Course, except for
references to the fact that Designer, Jacobsen and/or Hardy
designed the Golf Course. Agency will submit a copy of any such
proposed use to Designer for approval prior to use, and Designer
will advise Agency of its approval or disapproval within ten (10)
days of its receipt of such proposed use. If Designer fails to
respond within the 10 day period, the use of the item(s) shall be
deemed approved. Approval of photographs will require the
submission of actual production photography. Agency will be
responsible for enforcing compliance with the provisions of this
paragraph by all other parties involved with the Goff Course.
Agency will furnish Designer with copies of all photographs taken
and film and videotape footage shot by or on behalf of Agency
which involve Jacobsen and/or Hardy, and Designer will have the
right to use, free of charge, all or any part of such materials and any
reproductions thereof.
2.3 Required On -Site Appearances.
There will be a minimum of two (2) Jacobsen appearances on site, in conjunction
with the design and promotion of the Golf Course (ground breaking and grand opening);
and a minimum of two (2) Hardy appearances on site (ground breaking and grand
opening), in conjunction with the design, construction, and promotion of the golf course,
as follows:
119/01561 a 66
84504803 e09/14/07
b. Jacobsen and Hardy's presence and participation at ground
breaking and the grand opening of the Golf Course including an 18-
hole round of golf, if desired by the Agency, and involvement in
other reasonable opening day activities. Unless otherwise agreed
upon, the grand opening festivities, for which Jacobsen's and
Hardy's presence is required, must take place within the first six (6)
months of the course opening for play.
C. Reasonable additional Jacobsen and/or Hardy participation in the
promotion of the Golf Course as may be agreed upon by the
parties.
119/015610-0065
845049.03 a09/14/07
N EXHIBIT F A
BUSINESSOWNERS
PB 04 48 08 03
& THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED -
DESIGNATED PERSON OR ORGANIZATION
This endorsement modifies insurance provided under the following.
PREMIER BUSINESSOWNERS LIABILITY COVERAGE FORM
SCHEDULE
Name Of Person Or Organization:
LENNAR CORPORATION INSURANCE COMPLIANCE
The following is added to Section If. WHO IS AN
e. "Bodily injury" or "property dm aage" that arises
INSURED,
out of, in whole or in part, or is a result of, in
Any parson or organization shown in the Schedule of
whole or in part, the active negligence of the
in the Schedule of this
A� this endorsement is also an insured, but only with
additional Insured shown
V� respect to liability arising out of your ongoing
operations performed for such additional insured or
endorsement
b. "Personal and advertising injury" that arises out
arising out of premises owned by or rented to you,
or any independent "personal and advertising
the additional
subject to the following additional exclusion:
injury" offense committed by
insured shown in the Schedule of this
This insurance, including any duly we have to defend
endorsement
"suits", does not apply to
is
All terms and conditions of this policy apply unless modified by this endorsement
Includes Copyrighted material of Insurance Services Office, Inc., with its pemlisson•
Copyright, Insurance Services Office, Inc., 1997
Page 1 of 1
PB 044a 0803 - 72 wret
ACP UPOC7211751OW AGENT COPY „
ASSIGNMENT AND ASSUMPTION OF AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE LA OUINTA REDEVELOPMENT AGENCY JACOBSEN/HARDY GOLF
DESIGN INC. AND JACOBSEN HARDY GOLF COURSE DESIGN LLC
THIS ASSIGNMENT AND ASSUMPTION OF AGREEMENT FOR CONTRACT
SERVICES ("Assignment") is entered into to be effective as of 2008
("Effective Date"), by and among the La Quinta Redevelopment Agency, a public body,
corporate and politic ("Agency"), Jacobsen/Hardy Golf Design, Inc., 7-4)CAS corporation
("Assignor"), and Jacobsen Hardy Golf Course Design, LLC, a ZX4.5 limited liability
company ("'Assignee").
RECITALS
A. Whereas Agency and Assignor entered into that certain Agreement for Contract
Services (" Agreement'), a true and correct copy of which is attached hereto as Exhibit A.
B. Whereas that certain Agreement provides in Section 4.3 thereof that neither the
Agreement nor any interest therein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of the Agency.
C. Whereas Assignor and Assignee represent and warrant that in January 2008
Assignor reorganized from a corporation to an LLC; that Assignor's new legal name is that of
Assignee (Jacobsen Hardy Golf Course Design, LLC); and that the reorganization will not cause
a change in management or operations under the Agreement.
D. The resulting change described in Recital C constitutes and transfer by operation
of law and therefore requires Agency's consent and the parties entering this Assignment.
NOW THEREFORE, the parties to this Assignment agree as follows:
ASSIGNMENT
1. Recitals. The preceding recitals are incorporated herein by this reference.
2. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and
interests and delegates to Assignee all of its duties and obligations under the Agreement. All
references to Jacobsen/Hardy Golf Design, Inc. in the Agreement going forward after the
Effective Date of this Assignment shall mean Jacobsen Hardy Golf Course Design, LLC. Except
as expressly set forth in this Assignment, the provisions of the Agreement shall prevail. This
Assignment does not constitute a novation.
3. Assumption. Assignee hereby accepts the foregoing assignment and assumes and
agrees to timely keep, perform and discharge all of its duties and obligations under the
Agreement.
4. Agency Approval.
described in this Assignment.
2156/015610-0047
789969 01 a02/11/08
The Agency approves of' the assignment and assumption
OC/234690.1
OC/234728 1
5. Insurance. At all times Assignee shall in particular keep, observe and maintain all
of the obligations under Section 5.0 of the Agreement, including providing Agency with new
certificates of insurance bearing Assignee's name prior to commencement of services pursuant to
the provisions of the Agreement. Any new documentation required by Section 5, including
without limitation, certificates of insurance, shall be provided to Agency within ten (10) business
days of the mutual execution of this Assignment.
6. Consultant Representatives. Section 4.1 of the Agreement shall in particular
remain in full force and effect. The principals listed in Section 4.1 of the Agreement shall be
responsible during the term of the Agreement for directing all activities of Assignee and devoting
sufficient time to personally supervise the services under the Agreement.
7. Inurement. This Assignment shall inure to the benefit of the Agency and
Assignee, and their respective successors, heirs, and successors -in -interest.
GENERAL PROVISIONS
8. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of California.
9. Counterparts; Facsimile Delivery. This Assignment may be executed in
counterparts which, when taken together, shall constitute a fully executed original. Signatures
may be delivered by facsimile which shall be binding upon the parties as if they were originals.
10. Effect of Assi lg Went. Except as specifically set forth herein, the Agreement shall
continue in full force and effect as previously written.
[Signatures contained on following page]
2156/015610-0047
78996901 a02/11/08
OC/234690 1
OC/234728 1
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
day and year first above written.
"ASSIGNOR"
GOLF DESIGN,
"ASSIGNEE"
JACOBSEN HARDY GOLF COURSE DESIGN,
LLC
By:
Its. i 5:M
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY, a
public body, corporateandpolitic
Y7/! k,.4/. 9Kl dC
Agency Executive Director
A T T• /
VeronicaMontecin , Agency Secretary
APPROVED AS TO FORM:
RUTAN S TUC -L
By:
M. Katherine Jenson, ency Counsel
2156/015610-0047
789969 01 a02/1 V08
OC234690 1
OC234728 1
2156/015610-0047
789969 01 a02/11/08
Exhibit A
"Agreement"
[attached hereto]
ME
OC/234690.1
OC234728.1
DE
ACOMM CERTIFICATE OF LIABILITY INSURANCE I 02/18/2008
PRODUCER Oren Beal Insurance Agency, Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
1500 University Dr. E. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Suite 0 101
College Station TX 77840 INSURERS AFFORDING COVERAGE_
INSURED JaCOb5el1-(lardy Golf Course DCSIgn, LI.0 INSURERA Allied Insurance Company
12777 Jones Road Ste 150 INSURERS
TX 77070 INSURER C Admiral Insurance Company
Houston ,,,.,,
COVERAGES
POLICIES OF INSURANCE LISTED DELOW HAVE BEEN ISSUED TO THE INSUREO NAMED ABOVE
FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
THE
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH
RESPECT TO WHICH
THIS CERTIFICATE MAY BE ISSUED OR
ANY
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJFCT
TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS
POLICY EFFECTNE
POLN:'/ E%PIM710N
r— LIYITB
INSR TYPE OF IN RANGE POLICY NUMBER y,D�
2000000
A IGENERAL UABILITY ACP BPOC 7231751850 02/15.'2008
02/15/2009
EACHOCCURRENCE s
300000
X COMMERCIAL GENERAL LIABILITY
FIRE DAMAGE A oAefim
5000
CLAIMS MADE uOCCURi
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PERSONAL S ADV INJURY It _- _2000000
GENERALAGGREGATE S- 4000000
_
PRODUCTS- COMPIOPAGG f 4000000
G_E_N'L AGGREGATE LIMIT APP SLPOLR
POLI V PRO- LOC
A AUTOMOBILE ACPBAPC7231751850 02!15,12008
02/15/2009 1
COMBINED SINGLE LIMIT $ 1000000
X
(Ea ewdeM)
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I ANY AUTO
I ALL OWNED AUTOS
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INJURY S
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AGG
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ExceffuABUTY 02/15,/2008 02/15/2009
EACHOCCVRRENCE _
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IACPCAD7231751850
X OCCUR CLAIMS MADE
AGGRE ATE
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X WC STATU- DTH-
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EMPLOYERS' LIABILITY
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$1,000,000 occurrence Limit W/
S1,000,000 Aggregate Limit
Liability
DESCRIPTION Of OPEMTIONSRMATIONSNEMICLEWE%CLUSIONS ADDED BY ENDORSEMENTMPECIAL PROVISIONS
La Quinta Redevelopment Agency, its Officer and Employees are shown as Additional Insureds on General
Liability and Auto
Coverage...
Atm. Thomas P. Genovese
LA QUINTA, REDEVELOPMENT AGENCY
78-495 C'alle Tampico
P O Box 11,04
La Quinia
ACORD
CA 92247.1504
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE E%NMTMIN
DATE THEREOF. THE ISSUING INSURER WILL ENDEAVOR TO MAIL _30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL
IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER. DID AOSNM OR
AUTHORZED REPRESENTATIVE
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreemenf) is made and
entered Into by and between the LA QUINTA REDEVELOPMENT AGENCY (`Agency'),
and JACOBSEWHARDY GOLF DESIGN, INC. ("Consukanf). The parties hereto agree
as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Servicesin compliance with all terms and conditions of this
Agreement, Consultant shall provide those services related to the design of Goff No. 2
at SilverRock Resort, 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.
Consultant further represents that Peter Jacobson, a member of Consultant's design
team, is a member of the Champion's Tour whose involvement with the facility is both
desired and anticipated by Owner to be of value in the full realization of the City of La
Quinta's golf course and objectives.
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
Agency 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 Consultant's services
required by this Agreement.
1.4 Familiarity with Worts. Prior to completing the Preliminary Design Phase,
Consultant warrants that (a) it will have investigated and considered the work to be
performed, (b) it will have investigated the site of the work and fully acquainted itself
with the conditions there existing, (c) It will have carefully considered how the work
should be performed, and (d) it will fully understand the facilities, difficulties and
restrictions with respect to the performance of the work under this Agreement. The
Agency acknowledges that Consultant will, in part, be relying upon information provided
to it by Agency's engineering consultant, RBF Consulting. Should Consultant discover
any latent or unknown conditions materially differing from those inherent in the work or
as represented by Agency, Consultant shall immediately inform Agency of such fact and
shall not proceed with the work except at Consultant's risk until written instructions to
proceed are received from the Contract Officer (as defined in Section 4.2 hereof). If the
Contract Officer directs Consultant not to proceed with the work, Consultant shall not be
liable for the delay.
1.6 Care of Work and Standard of Work.
a. Care of Work. Consultant shall adopt reasonable means during the term of
the Agreement to preserve the work Consultant is performing under this Agreement and
shall be responsible for any damages, to persons, the work or the property that is
caused by Consultant or Consultant's acts or omissions, until the work has been
completed pursuant to the terms of this Agreement, except Consultant shall not be
responsible hereunder for any loss or damages that may be caused by Agency's,
Agency's agents (other than Consultant) or Agency's employee's negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation
to correct any incomplete, inaccurate or defective design work at no further cost to
Agency, when such inaccuracies are due to the negligence of Consultant.
b. Standard of Work. Consultant acknowledges and understands that the
services and work contracted for under this Agreement require specialized skills and
abilities and that, consistent with this understanding, Consultant's services and work will
be held to a heightened standard of quality and workmanship for professionals similar to
Consultant. Consistent with Section 1.4 hereinabove, Consultant represents to Agency
that lt holds the necessary skills and abilities to satisfy the heightened standard of work
as set forth in this Agreement.
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 ten percent (10%) of the Contract Sum may be
approved in writing by the Contract Officer. Any greater increase must be approved by
the Agency Board.
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 Hundred Seventy -Six Thousand
and Eight Hundred Dollars ($976,800) (the "Contract Sum', except as provided in
Section 1.6. The method of compensation set forth in the Schedule of Compensation
shall include payment in accordance with the percentage of completion of the services
2
as is specked in the Schedule of Compensation. The Contract Sum is inclusive of
amounts paid in reimbursement for actual and necessary expenditures for reproduction
costs, transportation expense, telephone expense, and similar costs and expenses as
specified in the Schedule of Compensation.
2.2 Method of Payment Any month in which Consultant wishes to receive
payment, Consultant shall submit to Agency, in the form approved by Agency's Finance
Director, an invoice for services rendered prior to the date of the invoice. Such invoice
shall describe in detail (1) the services provided since the Nast invoice, (2) the services
which are necessary to complete the phase, and shall specify the percentage of
completion of the applicable phase of work, and (3) a certification by a principal member
of Consultant specifying that the payment requested is for work performed in
accordance with the terns of this Agreement. Within 14 days of receipt of the invoice,
the Contract Officer or his designee shall notify the Consultant if there is an issue with
regard to verifying the percentage of work completed or if there is a concern with some
other aspect of the invoice. The notice will, to the extent reasonable, identify what
information or correction is necessary to address the issue or concern identified in the
notice, if no such notice is given within the time period, the invoice will be presumed to
be adequate and will be forwarded to the Finance Department for payment Once the
Contract Officer confirms the percentage of completion of the phase of work identified in
the request for payment, the Agency will pay Consultant for all fees and authorized
expenses stated thereon which are approved by Agency pursuant to this Agreement no
later than thirty (30) days after invoices are received by the Agency's Finance
Department with written confirmation from the Contract Officer that the request is
authorized for payment
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. Ail services rendered pursuant to this Agreement
shall be performed diligently and within the time period established in Exhibit "C" (the
"Schedule of Performance"). Additional extensions to the time period specified in the
Schedule of Performance may be approved in writing by the Contract Officer. The
parties recognize.that at the Agency's option, there may be a gap in the work on the
project after the Preliminary Design and Routing Plan Phase. The parties have
provided for such a gap though annualized fee adjustments as set forth in Exhibit "B".
3.3 Force Maieure. 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 Agency, 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
judgment such delay is justified, and the Contract Officer's determination shall be final
and conclusive upon the parties to this Agreement.
3.4 Term. The term of this Agreement shall commence on September �,
2007. 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 as provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Reoresentative 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:
o Peter Jacobsen Principal/President
o Jim Hardy Principal/CEO
o Rex Venhoose Senior Vice-President/Managing Architect
o Brian Johnson Design Associate
It is expressly understood that the experience, knowledge, capability, and
reputation of each of the foregoing principals and employees were a substantial
inducement for Agency 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 Agency. In addition, Jim Hardy shall be required to certify
on all plans and designs submitted to the Agency that he has personally reviewed and
approves the plans and designs set.forth in the submittal. Such certification is not
intended to create any individual liability for Jim Hardy to the Agency.
If at any time during the term of this Agreement, either Peter Jacobsen or Jim
Hardy ceases to be a principal in Consultant, the Agency shall, have the right, but not
the obligation, to immediately terminate this Agreement. In such event, provided that
Agency has made all required payment prior to the termination, the Agency shall have
the rights to all work product produced as of that termination, and shall have the right to
fully utilize that work product, but shall not have the right to use the name of Consultant,
Peter Jacobsen, or Jim Hardy in connection with the Golf Course. If the Agency
chooses not to exercise its right of termination, it shall have the right to continue to
make full use of the work product produced by Consultant and to identify the work
product produced and the golf course build pursuant thereto as the work or design of
4
Consultant, the work or design of Peter Jacobsen, and/or the work or design of Jim
Hardy, provided that it has made all payments required by this Agreement.
4.2 Contract Officer. The Contract Officer shall be Thomas P. Genovese,
Executive Director or such other person as may be designated by the Agency's
Executive Director. 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 Agency to the Contract
Officer. Unless otherwise specified herein, any approval of Agency required hereunder
shall mean the approval of the Contract Officer.
4.3 Prohibition Against Suboontractina or Assionment. The experience,
knowledge, capability and reputation of Consultant, its principals and employees were a
substantial inducement for Agency to enter into 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 Agency. 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 Agency.
4.4 Indeoendent Contractor. Neither Agency 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
Agency and shall remain at all times as to Agency 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 Agency.
4.5 Agency Cooperation. Agency shall provide Consultant with any plans,
publications, reports, statistics, records or other data or information pertinent to services
to be performed hereunder which are available to Consultant only from or through
action by Agency.
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, 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 Agency nor its
insurers shall be required to contribute to any such loss. A certificate evidencing the
foregoing and naming Agency and its officers and employees as additional insured shall
be delivered to and approved by Agency prior to commencement of the services
hereunder.
The amount of insurance required hereunder shall be:
Personal Injury/Prooerty Damage Coverage
$2,000,000 per occurrence, $4,000,000 in the aggregate
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, arty 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. If Consultant or Consultant's employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability coverage
for each such person. 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 Agency nor its insurers shall be required to contribute to such loss., A certificate
evidencing the foregoing and naming Agency and its officers and employees as
additional insured shall be delivered to and approved by Agency prior to
commencement of the services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State
Worker's Compensation laws with employers liability limits no less than $1,000,000 per
accident or disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be
written on a policy form coverage specifically designed to protect against acts, errors or
omissions of the consultant and "Covered Professional Services" as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay
on behM of" the Insured and must include a provision establishing the insurers duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
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 Agency
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 Agency, its officers, employees, Consultants, or agents.
5.2 Indemnification.
f3
The Consultant shall defend, indemnify and hold harmless the Agency, the City,
their officers, officials, employees, representatives and agents ("Agency Indemnitees')
from and against any and all actions, suits, proceedings, claims, demands, losses,
costs, and expenses, including legal costs and attorneys' fees, for injury to or death of
person(s) and/or for damage to property (including property owned by the Agency) to
the extent caused solely by the negligence or willful misconduct of Consultant, its
officers, anyone employed by Consultant, Consultant's agents or anyone for whose acts
Consultant may be liable.
In the event the Agency Indemnitees are made a party to any action, lawsuit, or
other adversarial proceeding in any way involving claims for which they are indemnified
pursuant to the preceding paragraph, then Consultant shall provide a defense to the
Agency Indemnitees, or at the Agency's option, reimburse the Agency Indemnitees their
reasonable costs of defense, including reasonable attorney's fees, incurred in defense
of such claim. In addition, Consultant shall be obligated to promptly pay any final
judgment or portion thereof rendered against the Agency Indemnitees arising out of
claims for which they are indemnified pursuant to the preceding paragraph.
The Agency shall defend, indemnity and hold harmless the Consultant, its officers,
principal„ employees, representatives and agents (°Consultant Indemnitees") from and
against any and all actions, suits, proceedings, claims, demands, losses, costs, and
expenses, including legal costs and attorneys' fees, for injury to or death of person(s)
and/or for damage to property to the extent caused solely by the negligence or willful
misconduct of the Agency, its officers, anyone employed by the Agency, the Agency's
agents or anyone for whose acts Agency may be liable.
In the event the Consultant Indemnitees are made a party to any action, lawsuit, or
other adversarial proceeding in any way involving claims for which they are indemnified
pursuant to the preceding paragraph, then Agency shad provide a defense to the
Consultant Indemnitees, or at the Consultant's option, reimburse the Consultant
Indemnitees their reasonable costs of defense, including reasonable attomey's fees,
incurred in defense of such claim. In addition, the Agency shall be obligated to promptly
pay any final judgment or portion thereof rendered against the Consultant Indemnitees
arising out claims for which they are indemnified pursuant to the preceding paragraph.
5.3 Remedies. In addition to any other remedies Agency may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to
the extent and within the time herein required, Agency may take any one of the
following options, at its sole discretion:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement; or
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; or
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c. Terminate this Agreement.
Exercise of any of the above remedies, however, is in addition to any other
remedies Agency 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 performance of work under this Agreement.
5.4 General Conditions pertainina to DrOVISions or insurance
Consultant. Consultant and Agency agree to the following with respect
provided by Consultant:
t. Consultant agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds Agency, its officials,
employees and agents, using the form of endorsement attached hereto as Exhibit "E".
2. All insurance coverage and limits provided by Consultant and available
or applicable to this Agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the Agency or
its operations limits the application of such insurance coverage.
3. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to Agency and approved of in writing.
4. No liability policy shall contain any provision or definition that would
serve to eliminate so-called "third party action over claims, including any exclusion for
bodily injury to an employee of the Insured or of any Consultant
5. All coverage types and limits required are subject to approval,
modification and additional requirements by the Agency, as the need arises. Consultant
shall not make any reductions in scope of coverage (e.g. elimination of contractual
liability or reduction of discovery period) that may affect Agency's protection without
Agency's prior written consent.
6. Proof of compliance with these insurance. requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant's general liability policy, shall be delivered to
Agency at or prior to the execution of this Agreement. In the event such proof of any
insurance is not delivered as required, or in the event such insurance is canceled at any
time and no replacement coverage is provided, Agency has the right, but not the duty,
to obtain any insurance it deems necessary to protect its interests under this or any
other agreement and to pay the premium. Any premium so paid by Agency shall be
13
charged to and promptly paid by Consultant or deducted from sums due Consultant, at
Agency option.
7. Certificate(s) are to reflect that the insurer will provide thirty (30) days
notice to Agency of any cancellation of coverage. Consultant agrees to require its
insurer to modify such certificates to delete any exculpatory wording stating that failure
of the insurer to mail written notice of cancellation imposes no obligation, or that any
party will "endeavor" (as opposed to being required) to comply with the requirements of
the certificate.
8. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant, is intended to apply first and on a
primary, non-contributing basis in relation to any other Insurance or self insurance
available to Agency.
9. Intentionally deleted.
10. Consultant agrees not to self -insure or to use any self -insured
retentions or deductibles on any portion of the insurance required herein and further
agrees that it will not allow any Consultant, Architect, Engineer or other entity or person
in any way involved in the performance of work on the project contemplated by this
agreement to self -insure its obligations to Agency. If Consultants existing coverage
includes a deductible or self -insured retention, the deductible or self -insured retention
must be declared to the Agency. At that time the Agency shall review options with the
Consultant, which may include reduction or elimination of the deductible or self4nsured
retention, substitution of other coverage, or other solutions.
11. The Agency reserves the right at any time during the term of the
contract to change the amounts and types of insurance required by giving the
Consultant ninety (90) days advance written notice of such change. if such change
results in substantial additional cost to the Consultant, the Agency will negotiate
additional compensation proportional to the increased benefit to Agency.
12. For purposes of applying insurance coverage only, this Agreement will
be deemed to have been executed immediately upon any party hereto taking any steps
that can be deemed to be in furtherance of or towards performance of this Agreement.
13. Consultant acknowledges and agrees that any actual or alleged failure
on the part of Agency to inform Consultant of non-compliance with any insurance
requirement in no way imposes any additional obligations on Agency nor does lt waive
any rights hereunder in this or any other regard.
14. Consultant will use its best efforts to renew the required coverage
annually until the one-year anniversary of the opening Golf Course No. 2 at SilverRock
Resort as long as the insuranceis commercially reasonably available.
0
15. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Consultant's insurance agent to this effect is acceptable. A certificate of insurance
and/or additional insured endorsement as required in these specifications applicable to
the renewing or new coverage must be provided to Agency within five (5) days of the
expiration of coverages.
16. The provisions of any workers' compensation or similar act will not limit
the obligations of Consultant under this agreement. Consultant expressly agrees not to
use any statutory immunity defenses under such laws with respect to Agency, its
employees, officials and agents.
17. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as
a waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured tobe limiting or all-inclusive.
18. These insurance requirements are intended to be separate and distinct
from any other provision in this agreement and are intended by the parties here to be
interpreted as such.
19. The requirements in this Section supersede all other sections and
provisions of this Agreement with respect to insurance to the extent that any other
section or provision conflicts with or impairs the provisions of this Section.
20. Consultant agrees to be responsible for ensuring that no contract used
by any party involved in any way with the project reserves the right to charge Agency or
Consultant for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to Agency. It is not the intent of
Agency to reimburse any third party for the cost of complying with these requirements.
There shall be no recourse against Agency for payment of premiums or other amounts
with respect thereto.
Consultant agrees to provide immediate notice to Agency of any claim or loss
against Consultant arising out of the work performed under this Agreement. Agency
assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve Agency.
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.
[M
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 Document. 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 and agents in the performance of this
Agreement, shall be the property of Agency and shall be delivered to Agency 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 Agency of its full rights of ownership of the documents and
materials hereunder.
In the event Agency or any person, firm or corporation authorized by Agency
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, Agency 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 Agency, except as required
by law or as authorized by Agency.
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 therefore. The injured party shall continue performing its obligations hereunder so
11
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, Agency may take such immediate action as Agency 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 Agency's right to terminate this
Agreement without cause pursuant to Section 7.7.
7.3 Intentionally Omitted.
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. Agency's consent or approval of any act by Consultant requiring Agency's
consent or approval shall not be deemed to waive or render unnecessary Agency'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 Rio hts 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 Tenn. This section shall govem any
termination of this Agreement, except as specifically provided in the following Section
7.8 for termination for cause. Agency 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
the termination.
7.8 Termination for Default of Consultant' Suspension Or wort Tor rvonpavrnern
of Anency. If termination is due to the failure of Consultant to fulfill its obligations under
this Agreement, Agency may, after compliance with the provisions of Section 7.2, take
over work and prosecute the same to completion by contract or otherwise, and
12
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 Agency
shall use reasonable efforts to mitigate such damages), and Agency may withhold any
payments to Consultant for the purpose of setoff or partial payment of the amounts
owed Agency as previously stated in Section 7.3. If Agency fails to make the payments
as required by Section 2.2, Consultant shall have the right to suspend its performance
until the Agency complies with the requirements of Section 2.2. Consultant shall have a
reasonable time to return to work after any suspension once the Agency makes the
payments required by Section 2.2. If the Agency fails to make payments of undisputed
amounts owed pursuant to Section 2.2 for 90 days or more, Consultant shall have the
right to terminate this Agreement. if Consultant exercises this right, and the Agency is
in breach of its obligations under this Agreement, the Agency shall not have the right to
use the name of the consultant, Peter Jacobsen, or Jim Hardy in connection with the
Golf Course.
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 attomeys' fees and costs of suit from the losing party.
8.0 AGENCY OFFICERS AND EMPLOYEES: NONDISCRIMINATION.
8.1 Non -liability of Agency Officers and Employees. No officer or employee of
Agency shall be personally liable to Consultant, or any successor in interest, in the
event or any default or breach by Agency 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 Agency 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.
8.3 Covenant aoainst 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.
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9.1 No ice. 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 for"Ight (48)
hours from the time of mailing if mailed as provided in this section.
To Agency:
LA QUINTA REDEVELOPMENT AGENCY
Attention: Thomas P. Genovese
Executive Director
78495 Cane Tampico
P.O. Box 1504
La Quints, California 92247-1504
To Consultant:
Jacobsen Hardy Golf Course Design
Attention: Rex VanHoose
Senior Vice President
12777 Jones Road, Suite 150
Houston, Texas 77070
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 judgment 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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IN WITNESS WHEREOF, he parties have executed this Agreement as of the
dates stated below.
LA QUINTA REDEVELOPMENT AGENCY
Date: 0 By:""/N ' I" / l �Qfid�
THOMAS P. GENEVOSE
Executive Director
Agency Secretary
APPROVED AS TO FORM:
M. KATAMNE JENSION
Agency Counsel
Date: Jp
CONSULTANT: JACOBSEN/HARDY
GOLF DESIGN, INC.
Name:
k.
Title:+' ✓
15
Exhibit A
Scope of Services
The following tasks shall be performed Jacobsen / Hardy Course Golf Design, Inc. in the preparation
of the conceptual, design development, and construction plans and specifications for the 18-hole golf
course and during it's construction.
1.0 Conceptual Desion Phase
The following scope of work identifies the scope associated with development of
a conceptual plan and specifications for the proposed 18-hole golf course. In
addition to the scope of work described below, the Designer will be available to
respond to all reasonable requests by the Agency and its Project Manager, on
behalf of the Agency, for meetings, correspondence and coordination.
1.1 Existing Project Documentation Review
The Designer shall review existing project information and analyze it to
determine issues, problems, findings and problem resolutions that could
be relevant to the project design and construction.
1.2 Initiate Project
The Designer will initiate the project by meeting with the Agency's steering
committee, the SilverRock Technical Team, staff, the Project Manager,
and other design team members to review the conceptual development
plan, available information, and to discuss the following:
• Project goals, objectives and opportunities as envisioned by the
committee;
• Project design criteria (e.g., environmentally sensitive, mulit-use
concept, etc.);
• Project theming concepts including overall character, landscaping,
architecture, monumentation, lighting, etc.;
• Anticipated mitigation measures and other project site constraints
including boundaries, set backs, well sites, Coachella canal, and
along with those sensitive biological resource areas;
• The mitigation monitoring and reporting program for the SilverRock
project;
• Information that will be available from the Agency, including base
maps, civil engineering plans, etc.;
• Requirements of other design team members directly related to the
Designer's design product, and;
• Project budget and schedule.
1.3 Site Review
The Designer shall attend a site review meeting with the Agency and
Project Manager and other design team members to visit and analyze the
project site.
1.4 Conceptual Golf Course Routing Plan
The Designer shall prepare a conceptual golf course routing plan which
Includes the layout of the course at 1"=200'. During the preparation of the
conceptual plan, the Designer will discuss various design options, along
with the advantages and disadvantages with each option. The Designer
will also provide up to three (3) revisions to the concept plan as necessary
in order to arrive at a plan that is acceptable to the Agency. The routing
plan shall depict the following:
• Tees, greens, and fairway boundaries
• Centerlines
• Water Features
• Spatial relationships, including clearances and setbacks to other
special uses
• Bridge locations or other methods of canal crossings
• Score Card
• Preliminary Grading Concept
The Designer shall prepare conceptual grading plans for the gaff course in
sufficient detail to delineate the proposed grading concept, including
contours and spot elevations. The Civil Engineer will review the
conceptual plan and prepare a quantity estimate and a cutiffill map for the
project. The conceptual grading plan will include preliminary horizontal
and vertical control for the lake(s) and water features(s).
The Concept Plan shall also include other features necessary for the
Agency to make informed decisions regarding the routing concept.
Following acceptance of the Concept Plan by the Agency, the Designer
will prepare a color rendering of the plan.
1.5 Conceptual Cost Estimate
Following completion of the Concept Plan, the Designer will provide a
conceptual cost estimate which outlines the costs by major construction
cost categories. Cost estimate shall reflect a "cost of living" increase
projected to occur as a result of the golf course construction being
scheduled to commence in 2011, and with completion in 2012.
1.6 Design Schedule
Designer will develop and submit a design schedule to the Agency,
outlining the time requirement for each phase of design. Schedule shall
consider the "stand down" time between the end of the conceptual design
phase and the start of the design development phase of work.
1.7Specifications
The Designer will provide the table of contents for the project
specifications pertaining to the construction of the project components
under the responsibility of the Designer. The table of contents shall be
formatted by Construction Specification Institute (CSI) categories.
1.8Team Interface
The Designer will interface with other design team consultants through the
Agency and Project Manager by incorporating other consultant's design
plan concepts as they relate to the god course plans and specifications.
The Designer will be responsible for providing review and comment on
other design team consultant plans (e.g., facility architect, landscape
architect, lake designer, etc.) for consistency with the golf plans,
adherence to project theming and for purposes of value engineering.
1.9Base Sheets
During Conceptual Design, the Designer will provide base design
information in computer format to the Landscape Architect, as necessary,
for their use in creating the overall project base sheets for the design
consultant team. This base information will include the conceptual layout
of the golf course, indicating those key design elements as described with
Section 1.4 and their relationship to the other recreational uses. The
Designer will continue to provide base information in computer format
throughout Design Development and Construction Documents as
necessary for use by the appropriate design team consultants in order for
the team to update their plans as necessary.
2.0 Design Development Phase
After approval of the Conceptual Design by the Agency, and in accordance with
the requirements of the golf course design schedule / schedule of performance,
the Designer shall prepare a Design Development Plan package which will refine
the design character of the project and identify specific materials to be used. The
plans will delineate all site construction elements and will include general
grassing concepts. The plans will be developed In typical construction document
format, at 1 "=100' on 30" x 42" sheets, and as further defined by the Agency prior
to initiation.
3
Due to the time lapse from the end of the conceptual design phase and the start
of the design development phase, the plans shall be based on current, updated
base information to be provided by the project civil engineer, reflecting the "as
built" site conditions.
2.1 Grading
The Designer will prepare grading plans for the golf course in sufficient
detail to delineate the proposed grading concept, including contours and
spot elevations. The project Civil Engineer will review the plan and
prepare a quantity estimate and a cutifill map for the project. The grading
plan will include horizontal and vertical control for the lake(s) and water
feature(s).
2.2 Drainage
The Designer will prepare a drainage plan for the golf course which
delineates drainage concepts, including structure locations and piping
layout. This plan will be provided to the project Civil Engineer for review
and analysis to determine structure and pipe sizes, and to make
recommendations for additional drainage improvements as necessary.
2.3 Clearing & Staking
The Designer will prepare a clearing and staking plan which includes
dimensions to the centerline of pertinent key golf course features such as
bunkers, tees, greens, turn points, etc. The clearing limits will indicate
native features, such as trees, which will be cleared, saved or relocated,
along with the proposed locations for relocation.
2.4 2.4 Grassing & Seeding Plan
The Designer will prepare a grassing and seeding plan which delineates
the limits of grassing and defines the type of seeding mix to be applied
within each designated area. Seed mix requirements will include
application rates. Areas proposed for re vegetation will be identified.
(note: as stated previously, the landscape architect will be responsible for
defining the mix requirements for areas of re -vegetation, as well as design
of the native landscaping and irrigation requirements.)
2.5 Specifications
The Designer will prepare draft construction specifications in CSI "Master
Format" for incorporfition into the master specification book.
Specifications will be provided both in computer format as well as in hard
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copy, 8-1/2" x 11" printout. The Designer will coordinate said
specifications with other design team consultants through the Agency and
the Project Manager to assure consistency throughout the design.
2.8 Design Development Cost Estimate
At the completion of the Design Development process, the Designer will
update the conceptual cost estimate based upon the Design Development
plans and specifications. The Design Development cost estimate will
further define the construction items, by providing quantities and unit
costs. Cost estimate shall reflect a "cost of living" increase projected to
occur as a result of the golf course construction being scheduled to
commence in 2011, and with completion in 2012.
2.7 Project Design and Construction Schedule
Designer will prepare a preliminary construction schedule for review, and
will revise the design schedule accordingly.
3.0 Construction Documents Phase
After approval of the Design Development package by the Agency, the Designer
shall prepare a Construction Document package for the key project items as
identified within section 2.0 in sufficient form and detail to facilitate construction
implementation of the proposed improvements.
3.1 Construction Plans
Construction Plans and details for all features of the 18 holes of the golf
course, to include tees, fairways, roughs, greens, mounds, swales,
bunkers, grading for water features, and any other feature as necessary
for the construction of the golf components of the project.
Designer will have no responsibility to prepare plans, specifications or
drawings for the Golf Course clubhouse, half -way house, shaker houses,
sanitary facilities, drinking fountains, maintenance facilities, storm
drainage system, dams, bridges, walls, cart paths, or any other similar
facilities or structures incidental to the Golf Course; provided that Designer
will periodically consult with and advise Agency in relation to such facilities
and render advice, when requested, as to the conceptual location of such
facilities or structures, but Designer will not have any liability to Agency
with respect to the design, location or construction of such facilities or
structures.
3.2 Greens Plans
The Designer will develop greens plans for the golf course which provide
sufficient detail and control for construction.
3.3 Construction Specifications
The Designer will finalize the construction specfications in CSI "Master
Format" for incorporation into the master specification book. Final
specifications will be provided both in computer format as well as in hard
copy, 8-1f2" x 11" printout which indicates the changes to Design
Development Specifications through kalicizinglhighlighting. The Designer
will coordinate said final specifications with other design team consultants
through the Project Manager to assure consistency throughout the design.
3.4 Construction Document Cost Estimate
At the completion of the Construction Document process, the Designer will
update the Design Development cost estimate based upon the
Construction Document plans and specifications. The Construction
Document cost estimate will further refine the quantities and unit costs
previously developed.
4.0 Biddin
The Designer shall provide assistance during the bidding of the project to include
the following:
• Attendance at a pre -bid meeting to be held onsite;
• Provide assistance to the Project Manager to respond to Contractor -
submitted requests for information pertaining directly to the Designer's
scope of work in the form of written clarifications or revisions to plans and
specifications as appropriate;
• Provide assistance for review of Contractor bids;
• Assistance in the review of bid packages and selection of the
Contractor(s) for the golf course.
5.0 Construction Process
Throughout the construction of the facility, which is anticipated to occur over a
twelve (12) month period, the Designer will provide construction support,
including field and office services to include the following:
e Attend pre -construction meetings at the Agency;
R
• Review materials, submittals, shop drawings, and system drawings for
conformance with the standards prescribed within the Construction
Documents, and recommend approval or disapproval;
• Provide responses to contractor -issued requests for information pertaining
directly to the Designer's scope of work by preparing additional drawings
or clarification to specifications as necessary;
• Provide assistance for review of the Contractor's cost proposals;
• Available to provide assistance as needed for evaluation of project change
orders;
• Schedule periodic site visits to the job site for on -site review of the
construction of the project in accordance with the approved golf course
plans and specifications;
• Participate in the development of project close out/punchlist
documentation; review and approval of as-builts and warranty/manual
submitted by contractor; verify contractor's comformance to final punchlist.
5.1 Construction Performance and Supervision of Work
Designer will not be a party to, nor will it be obligated under, any contracts
entered into for the peffonnanoe of the construction work, such obligations
being solely the responsibility of the Agency.
Designer will not be responsible under this Agreement for supervising the
work of any contractor with respect to the construction means, methods,
techniques, sequences, or procedures or the safety precautions incident
thereto, nor will Designer be responsible for any contractor's malfeasance
of misfeasance. Designers efforts will be directed toward advising the
Agency, during the course of Golf Course construction, as to how the
construction is or is not being performed in conformance with the
requirements of the Plan Documents. Designer will keep Agency informed
of the progress of the work and will endeavor to alert Agency to defects
and deficiencies in the work of the contractor during the course of
construction.
Designer will make recommendations to the Agency concerning the
quality and performance of the Work. Agency will be the final judge of the
performance thereunder by the contractor. The Designer will promptly
render interpretations on all claims, disputes and other matters in question
between the Agency and the contractor relating to the execution or
progress of the work under the Designer's plans and specifications
necessary for the proper execution or progress of the work.
The Designer will make recommendations to the Agency's Construction
Manager as to whether the Agency should reject work which does not
conform to Designers plans or specifications, and as to whether the
7
Construction Manager should order the work to be corrected to conform to
the plans and specifications.
5.2 Applications for Payment
Designer will review contractors application for payment, and will make
recommendations to the Project Manager.
6.0 Post Construction
Within one month prior to the expiration of the Contractor's one year warranty
period, the Designer will inspect the project and provide advice on the apparent
deficiencies in construction.
7.0 Meetinos. Presentations and Site Visits
7.1 Design Process
The design process and bidding process are anticipated to occur over a
twelve (12) month period, during which the design team will meet regularly
to review design progress, and periodically to discuss value engineering
issues as well as the project budget and schedule. The Designer should
anticipate up to two (2) meetings per month to be held at the Agency.
7.2 Design Presentations
The Designer shall participate in presentations of the project at the
following milestones:
• Mid -Concept design
• Concept design approval
• Mid -Design development
• Design development approval
• Construction document approval
At mid -concept design, there may be more than one, but no more than
three presentation reviews. Presentations will require preparation of the
presentation materials and sufficient methods of communication to clearly
articulate the project concept, various features of the project and design
emphasis, and other information to ensure consistency with the Agencys
goals and objectives for the project.
7.3 Ground Breaking
N
Both Peter Jacobsen and Jim Hardy will attend the ground breaking event
for the project.
7.4 Grand Opening
Both Peter Jacobsen and Jim Hardy will attend the Grand Opening event
for the golf course.
8.0 Designer's Representation
Designer represents and warrants that it is an expert In the design of golf courses
and that it will design for Agency a first class facility of a quality similar to other
courses designed by Designer, meeting golf industry standards,
9.0 Agency's Responsibilities
9.1 Agencys Provided Information
The Agency will furnish to the Designer at Agency's sole expense such
materials, surveys, tests, maps, analyses and other similar information
requested by the Designer reasonably necessary for the Designer to
execute its work under this Agreement. The information required to be
provided by the Agency will include, but may not necessarily be limited to,
a complete and accurate topographical survey satisfactory to the
Designer, indicating any and all existing natural and manmade features
such as trees, brush, rock outcroppings, waterways, fences, trails and
buildings on the Golf Course sites, given, where pertinent, the grades and
lines of streets, pavements and adjoining properties, and describing rights,
restrictions, easements, boundaries and contours of the buildings on site;
full information as to soil borings and test pits; chemical or other tests;
hydrological information relating to the site; and sewer, water, gas and
electrical services. The Agency will furnish the requested information with
reasonable promptness after Designer has provided Agency with a
detailed list of items needed by Designer to perform its work. Designer
shall not be responsible or held liable and the Agency hereby agrees to
defend, indemnify and hold Designer harmless for any claims, damages,
and/or causes of actions arising as a result of the inaccuracy in the
information provided by the Agency or its agents under this Section 9.1 or
under Sections 9.2, 9.3, 9.4, or 9.5 below.
9.2 Agency's Professional Consultants
Agency will be responsible for retaining the services of
qualified professional consultants to review the Plan Documents where
required, in order to assure compliance with all applicable laws and
regulations affecting the site, including, without limitation, environmental,
wetlands, land use, zoning and other similar matters. Designer agrees to
work with such consultants as required in the design process. Agency will
supply Designer with copies of all construction, engineering, zoning,
environmental, and other regulations applicable to the Golf Course.
Although Designer will take care to prepare the Plan Documents in
compliance with such regulations, it will be Agency's responsibility to
ensure such compliance. If requested to do so by Agency, Designer will
adjust the Plan Documents to conform to such regulations.
9.2.1 Civil Engineer
In connection with the foregoing, Agency will employ the services of
licensed engineers for the purpose of designing the storm drainage
system for the Golf Course, bridges, walls, cart paths, and any
other facilities or structures which require the services of an
engineer. Such engineers will also be responsible for advising
Designer regarding the impact of applicable regulations and
engineering practices upon Designer's Plan Documents and for
coordinating the storm drainage system with other drainage
features of the Goff Course. Agency acknowledges that Designer's
recommendations (as set forth In the Plan Documents) for storm
water drainage, conceptual cart path locations, soil and materials
movement and placement and other similar recommendations must
be reviewed and confirmed by qualified licensed engineers which
must be retained by Agency at its cost and expense.
9.2.2 Soils Engineer
Agency will retain the services of a qualified soils engineer who will
provide Designer with an analysis of the site of the Golf Course.
Designer will submit a completed set of Plan Documents to the
soils engineer retained by Agency for analysis. If the soils engineer
makes any suggested modifications to the Plan Documents
Designer will make such modifications to the Plan Documents,
Designer will make such modifications at no charge to Agency,
except for such expenses as are required to be paid by Agency
under this Agreement.
9.2.3 Irrigation Designer
10
Agency will retain the services of a qualified Irrigation Designer to
prepare and design the irrigation system for the Golf Course.
Designer will provide Agency with a list of recommended Irrigation
Designers should Agency not have one of its own. Upon
completion of the irrigation plans, Agency will provide the Designer
with a set of the plans for review and approval, prior to
implementation.
9.2.4 Agronomist
Agency will retain the services of a qualified Agronomist to assist
the project team in the analysis and evaluation of site specific data
(i.e. soil tests, water quality tests) and to advise the project team on
the specification of grass types, native vegetation, soil
amendments, and fertilizer.
9.2.5 Landscape Architect
Agency will retain the services of a qualified Landscape Architect to
prepare and design the hardscape (Formal Landscape) portions of
the project. The Designer will assist the Landscape Architect with
the location of the hardscape areas to ensure that they enhance the
golf course and do not compromise playability.
9.2.6 Lake Designer
Agency will retain the services of a qualified Lake Designer to
assist in the design and specification of proposed water feature(s).
Note: The senates, information, surveys and reports required by this Section 9.0
will be furnished at Agency's expense, and Designer will be entitled to rely upon
the accuracy and completeness thereof.
9.3 Agency Representative
The Agency's representative shall be as stated in section 4.2 of the
agreement.
9.4 Agency's Prompt Action
The Agency will furnish required information and services and render
approvals and decisions as expeditiously as necessary for orderly
progress of Designer's services and of the work and Designer shall not be
responsible for any delays in Designer's performance caused as a result
of Agency's delay in providing such information.
11
Exhibit B
Schedule of Compensation
Payment shall be in accordance with the schedule of valueslpayment schedule attached
herewith and submitted in conformance with Section 2.2 of the Agreement. Total
compensation and expense reimbursement for all work under this contract shall not
exceed $976,800.00 except as specified in Section 1.6 - Additional Services of the
Agreement.
1.0 COMPENSATION.
1.1 ' In consideration of the Consultant's services provided herein to Agency, it
Is agreed that Agency will pay the following fees to the Consuftent.
1.2 Fee. The fee to be paid by Agency to Consultant for all design services
rendered by Consultant during the Preliminary Design Phase, Design Development
Phase, Final Design Phase, Construction Phase, and Promotion Services, will be
payable on as follows:
PROJECT TASKS NON -PHASED FEE PHASED FEE
Exemdon I S 80.000.00
Design I Routing I $ 80.000.00
Development Plans I S 120.000.00
Document Plans I S 2:0.t100.00 S .78. "
Services I i U0,000A0 S 288:M00-
S 40,000.00 $ '
S.
GRAND TOTAL S 800 00000 IL W I"
7h. 1:
6% per Year
Complete In 2011; 6% per inter
in201$ e95 per year
In 2012014 nbn8rs).6% Pr
1.3 Expenses in Addition to Fee Provided in Section 1.2 Above.
Reimbursable expenses are in addition to the compensation paid to Consultant and
include following expenditures, and no others, actually incurred by the Consultant and
As employees in the interest of the project, In a total aggregate amount not to exceed
one hundred thousand dollars ($100,000.00):
a. Expense of transportation in connection with traveling to and from
the City of La Quinta and to the Golf Course; Irving expenses in
connection with out-of-state travel associated solely with this
Project, long distance communications, telex, telefax and overnight
mail.
b. Expense of reproductions, postage and handling of drawings,
specifications and other documents.
C. Payment requests including the above items shall be submitted as
outlined in Section 2.2 of the Agreement and will require the
appropriate supporting documentation, for expenses incurred.
Exhibit C
Schedule of Performance
114A156104065
845048 03 "114M
Exhibit D
Special Requirements
1.0 DESIGNER ACCESS. Peter Jacobson, Jim Hardy, Rex Vanhoose and Brian
Johnson shall have the right to play golf course on the course they design, free of
charge, subject to availability and providing a minimum of three (3) days advance
notice. They may be accompanied by up to three guests (not to exceed a foursome).
This provision may not be utilized by any one of the four individuals more than four (4)
times in any one year.
•' .IL r • • Mqaz— ;• • •�• ICd
2.1
It is understood that upon and after the signing of this Agreement, the City, the
Agency, and the developers and operators of the SllverRock Resort will be entitled to
utilize the names "Peter Jacobsen" and 'Jim Hardy" as well as the name
'JACOBSEN/HARDY GOLF'DESIGN, INC' or "JACOBSEN/HARDY GOLF DESIGN" in
referencing the design or the designer of the golf course. This right shall extend to all
forms of advertising and informational materials. This right of use is subject to the
provisions of Sections 4.1 and 7.8 of the Agreement. This right shall not be subject to
approval by Consultant, or by Peter Jacobson or Jim Hardy, inasmuch as such approval
if given by the signing of this Agreement. In exercising this right of usage, the Agency,
City, developers, and/or operators shall not state or imply that Consultant or its
principals are endorsing or are affiliated with any component of the SINerRock Resort
other than the golf course which is the subject of this Agreement.
a. Consultant recognizes that the Agency chose Consultant based in
large part upon Consultant's and Consultant's Principal's reputation
and name recognition, and the Agency's and City's intention of
promoting the golf course and the SilverRock Resort of which the
golf course is a part on the basis of reputation of Consultant and its
Principals. In addition to using the names of Consultant and its
Principals as specified in Section 2.1 immediately above,
Consultant acknowledges that another key benefit that the Agency
and the City expect to receive under this Agreement in exchange
for the consideration referenced In Exhibit B is the promotional
value associated with utilization of the name (beyond that
authorized in Section 2.1), likenesses, logos, photographs, videos,
and images of Peter Jacobson, Jim Hardy, and Consultant with no
additional fees or charges. Consultants and its Principals agree to
coordinate with Agency and the City for no additional fee for using
11MIS610.W65
61501E 03 IM107
Jacobsen's and/or Hardy's role as designer in the promotion of the
Golf Course. In connection with promotion of the Golf Course,
Agency and the City may use the Designer's, Jacobsen's and/or
Hardy's name, likeness, and logos, and may use copies or replicas
of plans prepared by Designer and delivered to Agency in
brochures, sales films and videotapes, press releases, and similar
promotional materials and in print and/or electronic media
advertisements. Except as provided in Section 2.1 immediately
above, Agency and City will not in any way make or permit any use
of Designer's, Jacobsen's and/or Hardy"s name, likeness, or logos,
or of any likeness of such plans prepared by Designer, without the
express written approval of Designer prior to use. Once
promotional material has been approved for use by Designer,
Agency, the City, and may continue such use without further
approval from Designer, provided the promotional material is used
in the same manner as approved by Designer. As used in this
Agreement, °Designer's name" is "Jacobsen/Hardy GoN Design".
Such use must be limited to Designer's, Jacobsen's and/or Hardy's
role as designer of the Goff Course and will not extend beyond the
Golf Course to include the promotion of any other development or
facility in the same complex as the Golf Course, except for
references to the fact that Designer, Jacobsen and/or Hardy
designed the Goff Course. Agency will submit a copy of any such
proposed use to Designer for approval prior to use, and Designer
will advise Agency of its approval or disapproval within ten (10)
days of its receipt of such proposed use. If Designer fails to
respond within the 10 day period, the use of the Rem(s) shall be
deemed approved. Approval of photographs will require the
submission of actual production photography. Agency will be
responsible for enforcing compliance with the provisions of this
paragraph by all other parties involved with the Golf Course.
Agency will furnish Designer with copies of all photographs taken
and film and videotape footage shot by or on behaff of Agency
which involve Jacobsen and/or Hardy, and Designer will have the
right to use, free of charge, ail or any part of such materials and any
reproductions thereof.
2.3 Reauired On -Site Aooearances.
There will be a minimum of two (2) Jacobsen appearances on site, in conjunction
with the design and promotion of the Golf Course (ground breaking and grand opening);
and a minimum of two (2) Hardy appearances on site (ground breaking and grand
opening), in conjunction with the design, construction, and promotion of the golf course,
as follows:
N50" 03 IM14M
2
b. Jacobsen and Hardy's presence and participation at ground
breaking and the grand opening of the Goff Course including an 18-
hole round of golf, if desired by the Agency, and involvement in
other reasonable opening day activities„ Unless otherwise agreed
upon, the grand opening festivities, for which Jacobsen's and
Hardy's presence is required, must take place within the first six (6)
months of the course opening for play.
C. Reasonable additional Jacobsen and/or Hardy participation in the
promotion of the Goff Course as may be agreed upon by the
parties.
119N13610-MS
uwu 63 aw14V
1 e yi
a r EXHIBIT F 0
13USINESSOWNERS
P5 04 48 OB 03
Its THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED -
DESIGNATED PERSON OR ORGANIZATION
This endorsemenl modifies insurance provided under the following,
PREMIER BUSINESSOWNERS LIABILITY COVERAGE FORM
SCHEDULE
Name Of Parson Or Organization:
LENNAR CORPORATION INSURANCE COMPLIANCE
The follow ng Is added to Section II. WHO IS AN
a. "Bodily kqury' or ^property damage that arises
INSURED,
out of, in whole of in part, or Is a resndt01, In
the active ne009oaee d the
Any person or organization shown in the Schedule of
insured, but
whole or In part,
additional insured shown in the Scheduia of this
® this endorsement is also an only with
respect to liability arising out of your ongoing
Operations performed for such Additional Insured Or
endorsement
b. "Personal and advertising Injury final arises out
arising out of promises owned by or rented to you,
of any independent "personal and 1Wvsbslrg
by the add8bnal
subject to live following additional exclusion:
Injury" offense committed
insured shown in the Schedule or this
This insurance, indudbg any duty we have to defend
endnrsemenl
'suits", does nut apply to
All terms and conditions of this poft apply unless modified by this endorsement
Includes copyrighted material of Insurance Services Office, Inc., with its parmisato^
Copyright, Insurance Services Office., Inc., 1997
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