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CITY OF ARCADIA
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 4th day of December, 2002 b and
between the City of Arcadia, a municipal organization organized under the laws of the St.te of
California with its principal place of business at 240 West Huntington Drive, Arcadia, Cali .rnia
91066-6021 ("City") and WERTHEIMER DESIGNS, a Sole Proprietorship with its pri cipal
place of business at 1374 East Madero Circle, Palm Springs, CA 92262 ("Consultant"). Cit and
Consultant are sometimes individually referred to as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of c:rtain
professional services required by the City on the terms and conditions set forth in this
Agreement. Consultant represents that it is experienced in providing graphic design services to
public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the Arcadia Sound wall
Aesthetic Enhancement project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furn'sh to
the City all labor, materials, tools, equipment, services, and incidental and customary ork
necessary to fully and adequately supply professional conceptual graphic design cons 1 lting
services necessary for the Project ("Services"). The Services are more particularly descriced in
Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be s bject
to, and performed in accordance with, this Agreement, the exhibits attached hereto and
incorporated herein by reference, and all applicable local, state and federal laws, rule• and
regulations. -
3.1.2 Term. The term of this Agreement shall be from November 26, 2002, to
December 31, 2002, unless earlier terminated as provided herein. Consultant shall comple e the
Services within the term of this Agreement, and shall meet any other established schedule. and
deadlines.
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3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The
Services shall be performed by Consultant or under its supervision. Consultant will dete ine
the means, methods and details of performing the Services subject to the requirements ol this
Agreement. City retains Consultant on an independent contractor basis and not as an emp oyee.
Consultant retains the right to perform similar or different services for others during the to of
this Agreement. Any additional personnel performing the Services under this Agreeme t on
behalf of Consultant shall also not be employees of City and shall at all times be nder
Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other
amounts due such personnel in connection with their performance of Services under this
Agreement and as required by law. Consultant shall be responsible for all report• and
obligations respecting such additional personnel, including, but not limited to: social sel urity
taxes, income tax withholding, unemployment insurance, disability insurance, and wo kers'
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Se ices
expeditiously, within the term of this Agreement, and in accordance with the Sched I e of
Services set forth in Exhibit "B" attached hereto and incorporated herein by refe -nce.
Consultant represents that it has the professional and technical personnel required to perfo the
Services in conformance with such conditions. In order to facilitate Consultant's confo ance
with the Schedule, City shall respond to Consultant's submittals in a timely manner. pon
request of City, Consultant shall provide a more detailed schedule of anticipated performa ce to
meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepare+ by
Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to Ci that
certain key personnel will perform and coordinate the Services under this Agreement. S ould
one or more of such personnel become unavailable, Consultant may substitute other perso I el of
at least equal competence upon written approval of City. In the event that City and Cons I ltant
cannot agree as to the substitution of key personnel, City shall be entitled to terminate this
Agreement for cause. As discussed below, any personnel who fail or refuse to perfo the
Services in a manner acceptable to the City, or who are determined by the City is be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a
threat to the safety of persons or property, shall be promptly removed from the Project b■ the
Consultant at the request of the City. The key personnel for performance of this Agreeme It are
as follows: JOE WERTHEIMER, ARTIST.
3.2.5 City's Representative. The City hereby designates Don Penman, Ass stant
City Manager/Development Services Director, or his or her designee, to act as its represen ative
for the performance of this Agreement ("City's Representative"). City's Representative shall
have the power to act on behalf of the City for all purposes under this Contract. Consultant shall
not accept direction or orders from any person other than the City's Representative or his or her
designee.
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3.2.6 Consultant's Representative. Consultant hereby designates JOE
WERTHEIMER, ARTIST, or his or her designee, to act as its representative for the perfo ance
of this Agreement ("Consultant's Representative"). Consultant's Representative shall hay; full
authority to represent and act on behalf of the Consultant for all purposes under this Agree ent.
The Consultant's Representative shall supervise and direct the Services, using his best skil and
attention, and shall be responsible for all means, methods, techniques, sequences and proceoures
and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City
staff in the performance of Services and shall be available to City's staff, consultants and ether
staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall pe form
all Services under this Agreement in a skillful and competent manner, consistent with the
standards generally recognized as being employed by professionals in the same discipline i the
State of California. Consultant represents and maintains that it is skilled in the profess onal
calling necessary to perform the Services. Consultant warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Services assign-d to
them. Finally, Consultant represents that it, its employees and subcontractors have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to perfo the
Services, including a City Business License, and that such licenses and approvals shall be
maintained throughout the term of this Agreement. As provided for in the indemnifi•ation
provisions of this Agreement, Consultant shall perform, at its own cost and expense and wi hout
reimbursement from the City, any services necessary to correct errors or omissions whic are
caused by the Consultant's failure to comply with the standard of care provided for herein. Any
employee of the Consultant or its sub-consultants who is determined by the City io be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a hreat
to the safety of persons or property, or any employee who fails or refuses to perform the Se ices
in a manner acceptable to the City, shall be promptly removed from the Project by the Cons ltant
and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed •f and
in compliance with all local, state and federal laws, rules and regulations in any manner aff:cting
the performance of the Project or the Services, including all Cal/OSHA requirements, and shall
give all notices required by law. Consultant shall be liable for all violations of such law. and
regulations in connection with Services. If the Consultant performs any work knowing it to be
contrary to such laws, rules and regulations and without giving written notice to the City,
Consultant shall be solely responsible for all costs arising therefrom. Consultant shall d:fend,
indemnify and hold City, its officials, directors, officers, employees and agents fret and
harmless, pursuant to the indemnification provisions of this Agreement, from any cla m or
liability arising out of any failure or alleged failure to comply with such laws, rul-s or
regulations.
3.2.10 INTENTIONALLY OMITTED.
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3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, incl ding
authorized reimbursements, for all Services rendered under this Agreement at the rates set I orth
in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation
shall not exceed FOUR THOUSAND TWO HUNDRED DOLLARS ($4,200.00) wi hout
written approval of City Manager. Extra Work may be authorized, as described below, a d if
authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. A one-time (lx) payment will be issu-d to
Consultant prior the start of preliminary graphic designs.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed fo any
expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Consultant perform Extra Work. As used herein, "Extra Work" means any ork
which is determined by City to be necessary for the proper completion of the Project, but hich
the Parties did not reasonably anticipate would be necessary at the execution of this Agree ent.
Consultant shall not perform, nor be compensated for, Extra Work without written authori.ation
from City's Representative.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Consultant shall maintain complet: and
accurate records with respect to all costs and expenses incurred under this Agreement. All such
records shall be clearly identifiable. Consultant shall allow a representative of City . ring
normal business hours to examine, audit, and make transcripts or copies of such records an. any
other documents created pursuant to this Agreement. Consultant shall allow inspection .f all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written noti. e to
Consultant, terminate the whole or any part of this Agreement at any time and without ca se by
giving written notice to Consultant of such termination, and specifying the effective date th-reof,
at least seven (7) days before the effective date of such termination. Upon termination,
Consultant shall be compensated only for those services that have been adequately rende ed to
City, and Consultant shall be entitled to no further compensation. Consultant may not to inate
this Agreement except for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated as pr.vided
herein, City may require Consultant to provide all finished or unfinished Documents an. Data
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and other information of any kind prepared by Consultant in connection with the performan e of
Services under this Agreement. Consultant shall be required to provide such document and ether
information within fifteen(15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminat-d in
whole or in part as provided herein, City may procure, upon such terms and in such manner as it
may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required uncle' this
Agreement shall be given to the respective Parties at the following address, or at such ether
address as the respective Parties may provide in writing for this purpose:
Consultant:
JOE WERTHEIMER
WERTHEIMER DESIGNS
1374 EAST MADERO CIRCLE
PALM SPRINGS, CA 92262
(760) 320-0255
City:
City of Arcadia
240 West Huntington drive
Arcadia, CA 91066-6021
Attn: Don Penman, Assistant City Manager/
Development Serviced Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eigh (48)
hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual otice
occurred,regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, re se, or
sublicense any and all copyrights, designs, and other intellectual property embodied in lans,
specifications, studies, drawings, estimates, and other documents or works of authorship fi ed in
any tangible medium of expression, including but not limited to, physical drawings o data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall r quire
all subcontractors to agree in writing that City is granted a non-exclusive and perpetual Fcense
for any Documents & Data the subcontractor prepares under this Agreement. Cons ltant
represents and warrants that Consultant has the legal right to license any and all Docum: is &
Data. Consultant makes no such representation and warranty in regard to Documents :i Data
which were prepared by design professionals other than Consultant or provided to Consult. t by
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the City. City shall not be limited in any way in its use of the Documents and Data at any ime,
provided that any such use not within the purposes intended by this Agreement shall be at I ity's
sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications, •lans,
procedures, drawings, descriptions, computer program data, input record data, w 'tten
information, and other Documents and Data either created by or provided to Consulta t in
connection with the performance of this Agreement shall be held confidential by Consultant.
Such materials shall not, without the prior written consent of City, be used by Consultant fog any
purposes other than the performance of the Services. Nor shall such materials be disclos-d to
any person or entity not connected with the performance of the Services or the Project. No hing
furnished to Consultant which is otherwise known to Consultant or is generally known, a has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City's name or insignia, photographs of the Project, or any publicity pertaining to the Servi•es or
the Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate wit one
another, and shall take any additional acts or sign any additional documents as may be nece•.sary,
appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. If either Party commences an action against the other
Party, either legal, administrative or otherwise, arising out of or in connection wit this
Agreement, the prevailing Party in such litigation shall be entitled to have and recover fro the
losing Party reasonable attorney's fees and all other costs of such action.
3.5.6 Indemnification. Consultant shall defend, indemnify and hold the Ci , its
officials, officers, employees, volunteers and agents free and harmless from any and all c aims,
demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equ ty, to
property or persons, including wrongful death, in any manner arising out of or incident to any
alleged acts, omissions or willful misconduct of Consultant, its officials, officers, employees,
agents, consultants and contractors arising out of or in connection with the performance of the
Services, the Project or this Agreement, including without limitation the payment of all
consequential damages and attorneys fees and other related costs and expenses. Consultan' shall
defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, acti.ns or
other legal proceedings of every kind that may be brought or instituted against City, its directors,
officials, officers, employees, agents or volunteers. Consultant shall pay and satis any
judgment, award or decree that may be rendered against City or its directors, officials, of icers,
employees, agents or volunteers, in any such suit, action or other legal proceeding. Cons ltant
shall reimburse City and its directors, officials, officers, employees, agents and/or voluntee s, for
any and all legal expenses and costs incurred by each of them in connection therewith or in
enforcing the indemnity herein provided. Consultant's obligation to indemnify shall of be
restricted to insurance proceeds, if any, received by the City, its directors, officials of icers,
employees, agents or volunteers.
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3.5.7 Entire Agreement. This Agreement contains the entire Agreement oi the
Parties with respect to the subject matter hereof, and supersedes all prior negotiat ons,
understandings or agreements. This Agreement may only be modified by a writing signed by
both Parties.
3.5.8 Governing Law. This Agreement shall be governed by the laws or the
State of California. Venue shall be in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.5.10 City's Right to Employ Other Consultants. City reserves right to e 'ploy
other consultants in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding o the
successors and assigns of the Parties.
3.5.12 Assignment or Transfer. Consultant shall not assign, hypotheca1-, or
transfer, either directly or by operation of law, this Agreement or any interest herein witho it the
prior written consent of the City. Any attempt to do so shall be null and void, and any assi ees,
hypothecates or transferees shall acquire no right or interest by reason of such atte pted
assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement sill 11 be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any
term referencing time, days or period for performance shall be deemed calendar days an. not
work days. All references to Consultant include all personnel, employees, agents and
subcontractors of Consultant, except as otherwise specified in this Agreement. All referen,es to
City include its elected officials, officers, employees, agents, and volunteers except as oth-1 ise
specified in this Agreement. The captions of the various articles and paragraphs a e for
convenience and ease of reference only, and do not define, limit, augment, or describe the -cope,
content, or intent of this Agreement.
3.5.14 Amendment; Modification. No supplement, modification, or amen.' ent
of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, b:nefit,
privilege, or service voluntarily given or performed by a Party shall give the other Pa 16 any
contractual rights by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
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3.5.17 Invalidity; Severability. If any portion of this Agreement is dec ared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the rema ping
provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Consultant maintains and warrants that it ha.. not
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it ha. not
paid nor has it agreed to pay any company or person, other than a bona fide employee wo king
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consider.tion
contingent upon or resulting from the award or making of this Agreement. For brea.h or
violation of this warranty, City shall'have the right to rescind this Agreement without liability.
For the term of this Agreement, no member, officer or employee of City, during the term if his
or her service with City, shall have any direct interest in this Agreement, or obtain any presint or
anticipated material benefit arising therefrom.
3.5.19 Equal Opportunity Employment. Consultant represents that it is an -qual
opportunity employer and it shall not discriminate against any subcontractor, employ,e or
applicant for employment because of race, religion, color, national origin, handicap, anc-stry,
sex or age. Such non-discrimination shall include, but not be limited to, all activities rela -d to
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, l.yoff
or termination. Consultant shall also comply with all relevant provisions of City's Mi ority
Business Enterprise program, Affirmative Action Plan or other related programs or guid,lines
currently in effect or hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, Consultant certifies I at it
is aware of the provisions of Section 3700 of the California Labor Code which require -very
employer to be insured against liability for Worker's Compensation or to undertake self-
insurance in accordance with the provisions of that Code, and agrees to comply with such
provisions before commencing the performance of the Services.
3.5.21 Authority to Enter Agreement. Consultant has all requisite powe and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, righ , and
authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts. This Agreement may be signed in counterparts, e h of
which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any port on of
the work required by this Agreement, except as expressly stated erein,
without prior written approval of City. Subcontracts, if any, shall c ntain
a provision making them subject to all provisions stipulated this
Agreement.
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CITY OF ARCADIA WERTHEIM Ei' P SIGNS
By: tl 1 By: Q,' aA
William R. Kelly [IName]
City Manager 1
1 (5 0/0 e7
Dated: W/' , 2002 [Title]
ATTEST: ✓,
icZ). ,., A , ,i.,cs ,
i1y Clerk /
APPROVED AS TO FORM: CONCUR:
cr-„__—(-? b-6 ,-e' ., I., . -I ?-^ru-ev.en-- 12,4? ,rya.
Steph n P. Deitsch Department Head Dat-
City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
CONSULTANT, WERTHEIMER DESIGNS, WILL RENDER PRELIMIN• I Y
CONCEPTUAL DESIGNS FOR ARTWORK THAT WILL BE PLACED ON
SOUNDWALLS LOCATED ALONG THE I-210 FOOTHILL FREEWAY IN THE *I TY
OF ARCADIA.
A-1
EXHIBIT "B"
SCHEDULE OF SERVICES
ARTWORK DESIGNS WILL BE DELIVERED TO THE CITY OF ARCADIA WIT IN
THREE (3) TO FOUR(4)WEEKS OF ISSUING CONSULTANT RETAINER
(APPROXIMATELY DECEMBER 31, 2002).
CONTRACT REVIEW AND APPROVAL: NOVEMBER 27, 2002
RETAINER: DECEMBER 5, 2002
CONCEPTUAL ARTWORK DESIGN: DECEMBER 6, 2002
DESIGNS DUE TO CITY OF ARCADIA: DECEMBER 31, 2002
B-1
EXHIBIT "C"
COMPENSATION
RATE: ONE (1) TIME PAYMENT OF RETAINER IN AMOUNT OF$4,200.00 TO
PROVIDE PRELIMINARY CONCEPTUAL DESIGNS FOR FREEWAY SOUNDW• L.
C-1