Service Agreement

City of Glendale — Regular Meeting (2022-04-12)

Extracted text (via ocr_local) 26962 characters

SERVICES AGREEMENT
(Not Construction Related)
BETTS SPRING COMPANY DBA BETTS TRUCK PARTS AND SERVICE

This Services Agreement ("Agreement") is entered into and effective between the CITY OF GLENDALE, an
Arizona municipal corporation ('"City") and Betts Spring Company, a California, corporation, authorized to do
business in Arizona dba Betts Truck Parts and Service("Consultant") as of the day of

2022 (“Effective Date”).

RECITALS

City intends to undertake a project for the benefit of the public and with public funds (the Project");

City desires to retain the professional services of Consultant to perform certain specific duties and produce
the specific work as set forth in the attached Exhibit B, Project Scope of Work (“Scope”);

Consultant desires to provide City with services (“Services”) consistent with industry-best practices and the
standards set forth in this Agreement, in order to complete the Project; and

City and Consultant desire to memorialize their agreement with this document.

AGREEMENT

The parties hereby agree as follows:

Key Personnel; Other Consultants and Subcontractots.

11 Services. Consultant will provide all Services necessary to assure the Project is completed timely
and efficiently consistent within Project requirements, including, but not limited to, working in
close interaction and interfacing with City and its designated employees, and working closely with
others, including other consultants or contractors, retained by City.

Schedule. ‘The Services will be undertaken in a manner that ensures the Project is completed timely and
efficiently in accordance with the Project. Nevertheless, this Agreement terminates five (5) years from the
effective date.

Consultant’s Work.

3.1 Standard. Consultant must perform Services in accordance with the standards of due diligence,
care, and quality prevailing among consultants having substantial experience with the successful
furnishing of Services for projects that are equivalent in size, scope, quality, and other criteria under
the Project and identified in this Agreement.

3.2 Licensing. Consultant warrants that:

a. Consultant currently holds all appropriate and required licenses, registrations and other
approvals necessary for the lawful furnishing of Services ("Approvals"); and

b. Neither Consultant nor any Subconsultant has been debarred or otherwise legally excluded
from contracting with any federal, state, or local governmental entity ("Debarment").

1¢3) City is under no obligation to ascertain or confirm the existence or issuance of any
Approvals or Debarments, or to examine Consultant's contracting ability.

(2) Consultant must notify City immediately if any Approvals or Debarment changes
during the Agreement's duration. The failure of the Consultant to notify City as
required will constitute a material default under the Agreement.

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3.3

3.4

Compliance.

Services will be furnished in compliance with applicable federal, state, county and local
statutes, rules, regulations, ordinances, building codes, life safety codes, and other
standards and criteria designated by City.

Consultant must not discriminate against any employee or applicant for employment on
the basis of race, color, religion, sex, national origin, age, marital status, sexual orientation,
gender identity or expression, genetic characteristics, familial status, U.S. military veteran
status or any disability. Consultant will require any Sub-contractor to be bound to the same
requirements as stated within this section. Consultant, and on behalf of any subcontractors,
warrants compliance with this section.

Work Product.

Ownership. Upon receipt of payment for Services furnished, Consultant grants to City
exclusive ownership of and all copyrights, if any, to evaluations, reports, drawings,
specifications, project manuals, surveys, estimates, reviews, minutes, all "architectural
work" as defined in the United States Copyright Act, 17 U.S.C § 101, ef seq., and other
intellectual work product as may be applicable ("Work Product").

(1) This grant is effective whether the Work Product is on paper (¢.g., a "hard copy"),
in electronic format, or in some other form.

(2) Consultant warrants, and agrees to indemnify, hold harmless and defend City for,
from and against any claim that any Work Product infringes on third-party
proprietary interests.

Delivery. Consultant will deliver to City copies of the preliminary and completed Work
Product promptly as they are prepared.

City Use.
(1) City may reuse the Work Product at its sole discretion.

(2) In the event the Work Product is used for another project without further
consultations with Consultant, the City agrees to indemnify and hold Consultant
harmless from any claim arising out of the Work Product.

(3) In such case, City will also remove any seal and title block from the Work Product.

Compensation for the Project.

4.1

4.2

Compensation. Consultant's compensation for the Project, including those furnished by its
Subconsultants or Subcontractors will not exceed $375,000 for the entire term of the five-year
Agreement as specifically detailed in Exhibit D ("Compensation").

Change in Scope of Project. The Compensation may be equitably adjusted if the originally
contemplated Scope as outlined in the Project is significantly modified.

Adjustments to Compensation require a written amendment to this Agreement and may
require City Council approval.

Additional services which are outside the Scope of the Project contained in this Agreement
may not be performed by the Consultant without prior written authorization from the City.

Notwithstanding the incorporation of the Exhibits to this Agreement by reference, should
any conflict arise between the provisions of this Agreement and the provisions found in
the Exhibits and accompanying attachments, the provisions of this Agreement shall take
ptiority and govern the conduct of the parties.

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43 Allowances. An “Allowance” may be identified only for work that is required by the Scope and the
value of which cannot reasonably be quantified at the time of this Agreement.

a. As stated in Sec. 4.1 above, the Compensation must incorporate all Allowance amounts
and any unused allowance at the completion of the Project will remain with City.

b. Consultant may not add any mark-up for work identified as an Allowance and which is to
be performed by a Subconsultant.

c. Consultant will not use any portion of an Allowance without prior written authorization
from the City.

d. Examples of Allowance items include, but are not limited to, subsurface pothole
investigations, survey, geotechnical investigations, public participation, radio path studies
and material testing.

Billings and Payment.

5.1 Applications.

a. Consultant will submit monthly invoices (each, a "Payment Application") to City's Project
Manager and City will remit payments based upon the Payment Application as stated
below.

b. The period covered by each Payment Application will be one calendar month ending on
the last day of the month.

5.2 Payment.

a. After a full and complete Payment Application is received, City will process and remit
payment within 30 days.

b. Payment may be subject to or conditioned upon City's receipt of:

(1) Completed work generated by Consultant and its Subconsultants; and

(2) Unconditional waivers and releases on final payment from all Subconsultants as
City may reasonably request to assure the Project will be free of claims arising
from required performances under this Agreement.

5.3 Review and Withholding. City's Project Manager will timely review and certify Payment
Applications.

a. If the Payment Application is rejected, the Project Manager will issue a written listing of
the items not approved for payment.

b. City may withhold an amount sufficient to pay expenses that City reasonably expects to
incur in correcting the deficiency or deficiencies rejected for payment.

Termination.

6.1 For Convenience. City may terminate this Agreement for convenience, without cause, by
delivering a written termination notice stating the effective termination date, which may not be less
than 15 days following the date of delivery.

a. Consultant will be equitably compensated for Services furnished prior to receipt of the
termination notice and for reasonable costs incurred.

b. Consultant will also be similarly compensated for any approved effort expended, and
approved costs incurred, that are directly associated with Project closeout and delivery of
the required items to the City.

6.2 For Cause. City may terminate this Agreement for cause if Consultant fails to cure any breach of

this Agreement within seven days after receipt of written notice specifying the breach.

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a. Consultant will not be entitled to further payment until after City has determined its
damages. If City's damages resulting from the breach, as determined by City, are less than
the equitable amount due but not paid Consultant for Services furnished, City will pay the
amount due to Consultant, less City's damages, in accordance with the provisions of Sec. 5.

b. If City's direct damages exceed amounts otherwise due to Consultant, Consultant must pay
the difference to City immediately upon demand; however, Consultant will not be subject
to consequential damages more than $1,000,000 or the amount of this Agreement,
whichever is greater.

Conflict. Consultant acknowledges this Agreement is subject to A.R.S. § 38-511, which allows for
cancellation of this Agreement in the event any person who is significantly involved in initiating,
negotiating, securing, drafting, or creating the Agreement on City's behalf is also an employee, agent, or
consultant of any other party to this Agreement.

Insurance. For the duration of the term of this Agreement, Consultant shall procure and maintain
insurance against claims for injuries to persons or damages to property which may arise from or in
connection with the performance of all tasks or work necessary to complete the Project as herein defined.
Such insurance shall cover Consultant, its agent(s), representative(s), employee(s) and any subcontractors.

8.1 Minimum Scope and Limit of Insurance. Coverage must be at least as broad as:

a. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01,
including products and completed operations, with limits of no less than $1,000,000 per
occurrence for bodily injury, personal injury, and property damage. If a general aggregate
limit applies, either the general aggregate limit shall apply separately to this project/location
or the general aggregate limit shall be twice the required occurrence limit.

b. Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1
(any auto), with limits no less than $1,000,000 per accident for bodily injury and property
damage.

c Worker’s Compensation: Insurance as required by the State of Arizona, with Statutory

Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per
accident for bodily injury or disease.

8.2. Indemnification.

a. To the fullest extent permitted by law, Consultant must defend, indemnify, and hold
harmless City and its elected officials, officers, employees and agents (each, an
"Indemnified Party," collectively, the "Indemnified Parties") for, from, and against any and
all claims, demands, actions, damages, judgments, settlements, personal injury (including
sickness, disease, death, and bodily harm), property damage (including loss of use),
infringement, governmental action and all other losses and expenses, including attorneys'
fees and litigation expenses (each, a "Demand or Expense" collectively "Demands or
Expenses") asserted by a third-party (Le. a person or entity other than City or Consultant)
and that arises out of or results from the breach of this Agreement by the Consultant or
the Consultant’s negligent actions, errors or omissions Gncluding any Subconsultant or
Subcontractor or other person or firm employed by Consultant), whether sustained before
or after completion of the Project.

b. This indemnity and hold harmless provision applies even if a Demand or Expense is in
part due to the Indemnified Party's negligence or breach of a responsibility under this
Agreement, but in that event, Consultant will be liable only to the extent the Demand or
Expense results from the negligence or breach of a responsibility of Consultant or of any
person or entity for whom Consultant is responsible.

c Consultant is not required to indemnify any Indemnified Parties for, from, or against any
Demand or Expense resulting from the Indemnified Party's sole negligence or other fault
solely attributable to the Indemnified Party.

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8.3

8.4

8.5

8.6

8.7

8.8

Other Insurance Provisions. The insurance policies required by the Section above must contain,
or be endorsed to contain the following insurance provisions:

a. The City, its officers, officials, employees and volunteers are to be covered as
additional insureds of the CGL and automobile policies for any liability arising from or
in connection with the performance of all tasks or work necessary to complete the Project
as herein defined. Such liability may arise, but is not limited to, liability for materials, parts
or equipment furnished in connection with any tasks, or work performed by Consultant ot
on its behalf and for liability arising from automobiles owned, leased, hired or borrowed
on behalf of the Consultant. General liability coverage can be provided in the form of an
endorsement to the Consultant’s existing insurance policies, provided such endorsement is
at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 23 37, if later
revisions are used.

b. For any claims related to this Project, the Consultant’s insurance coverage shall be
primary insurance with respect to the City, its officers, officials, employees, and
volunteers. Any insurance or self-insurance maintained by the City, its officers, officials,
employees or volunteers shall be in excess of the Consultant’s insurance and shall not
contribute with it.

c. Each insurance policy required by this Section shall provide that coverage shall not be
canceled, except after providing notice to the City.

Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of
no less than A: VII, unless the Consultant has obtained prior approval from the City stating that a
non-conforming insurer is acceptable to the City.

Waiver of Subrogation. Consultant hereby agrees to waive its rights of subrogation which
any insurer may acquire from Consultant by virtue of the payment of any loss. Consultant agrees
to obtain any endorsement that may be necessary to effect this waiver of subrogation. The
Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City
for all work performed by the Consultant, its employees, agent(s) and subcontractor(s).

Verification of Coverage. Within 15 days of the Effective Date of this Agreement, Consultant shall
furnish the City with original certificates and amendatory endorsements, or copies of any applicable
insurance language making the coverage required by this Agreement effective. All certificates and
endorsements must be received and approved by the City before work commences. Failure to
obtain, submit or secure the City’s approval of the required insurance policies, certificates or
endorsements prior to the City’s agreement that work may commence shall not waive the
Consultant’s obligations to obtain and verify insurance coverage as otherwise provided in this
Section. The City reserves the right to require complete, certified copies of all required insurance
policies, including any endorsements or amendments, required by this Agreement at any time
during the Term stated herein.

Consultant’s failure to obtain, submit or secure the City’s approval of the required insurance
policies, certificates or endorsements shall not be considered a Force Majeure or defense for any
failure by the Consultant to comply with the terms and conditions of the Agreement, including any
schedule for performance or completion of the Project.

Subcontractors. Consultant shall require and shall verify that all subcontractors maintain insurance
meeting all requirements of this Agreement.

Special Risk or Circumstances. ‘The City reserves the right to modify these insurance requirements,
including any limits of coverage, based on the nature of the risk, prior experience, insurer, coverage
or other circumstances unique to the Consultant, the Project or the insurer.

E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the Consultant warrants
its compliance and that of its Subconsultants with all federal immigration laws and regulations that relate to

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10.

11.

their employees and compliance with the E-verify requirements under A.R.S. § 23-214(A). The Consultant
or Subconsultant’s breach of this warranty shall be deemed a material breach of the Agreement and may
result in the termination of the Agreement by the City under the terms of this Agreement. The City retains
the legal right to randomly inspect the papers and records of the other party to ensure that the other party is
complying with the above-mentioned warranty. The Consultant and Subconsultant warrant to keep their
respective papers and records open for random inspection during normal business hours by the other party.
The Consultant and Subconsultant shall cooperate with the City’s random inspections, including granting
the City entry rights onto their respective properties to perform the random inspections and waiving their
respective rights to keep such papers and records confidential.

No Boycott of Israel. ‘I'o the extent A-.R.S § 35-393 through § 35-393.03 are applicable, the parties hereby
certify that they are not currently engaged in, and agree for the duration of the Agreement to not engage in,
a boycott of goods or services from Israel, as that term is defined in A.R.S § 35-393.

Attestation of PCI Compliance. When applicable, the Contractor will provide the City annually with a
Payment Card Industry Data Security Standard (PCI DSS) attestation of compliance certificate signed by an
officer of Contractor with oversight responsibility.

Notices.

12.1 A notice, request or other communication that is required or permitted under this Agreement (each
"Notice") will be effective only if:

The Notice is in writing; and
b. Delivered in person or by overnight courier service (delivery charges prepaid), certified or
registered mail (return receipt requested).

c Notice will be deemed to have been delivered to the person to whom it is addressed as of
the date of receipt, if:

(1) Received on a business day before 5:00 p.m. at the address for Notices identified
for the Party in this Agreement by U.S. Mail, hand delivery, or overnight courier
service; or

(2) As of the next business day after receipt, if received after 5:00 p.m.

d. The burden of proof of the place and time of delivery is upon the Party giving the Notice.
e. Digitalized signatures and copies of signatures will have the same effect as original
signatures.
12.2 Representatives.
a. Consultant. Consultant's representative (the "Consultant's Representative") authorized to
act on Consultant's behalf with respect to the Project, and his or her address for Notice
delivery is:

Betts Spring Company dba Betts Truck Parts and Service
c/o Eugene Camacho

7375 W. Buckeye Rd., #100

Phoenix, AZ 85043

b. City. City's representative ("City's Representative") authorized to act on City's behalf, and
his or her address for Notice delivery is:

City of Glendale

c/o Craig Croner

6210 W. Myrtle Avenue, #111
Glendale, Arizona 85301

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13.

City Manager City Attorney
City of Glendale City of Glendale
5850 West Glendale Avenue 5850 West Glendale Avenue
Glendale, Arizona 85301 Glendale, Arizona 85301
c Concurrent Notices.
(1) All notices to City's representative must be given concurrently to City Manager
and City Attorney.
(2) A notice will not be deemed to have been received by City's representative until

the time that it has also been received by the City Manager and the City Attorney.

(3) City may appoint one or more designees for the purpose of receiving notice by
delivery of a written notice to Consultant identifying the designee(s) and their
respective addresses for notices.

Entire Agreement; Survival; Counterparts; Signatures.

13.1

13.2

13.3

13.4

13.5

13.6

Integration. This Agreement contains, except as stated below, the entire agreement between City
and Consultant and supersedes all prior conversations and negotiations between the parties
regarding the Project or this Agreement.

a. Neither Party has made any representations, warranties or agreements as to any matters
concerning the Agreement's subject matter.

b. Representations, statements, conditions, or warranties not contained in this Agreement will
not be binding on the parties.

c. Inconsistencies between the solicitation, any addenda attached to the solicitation, the

response or any excerpts, if any, and this Agreement, will be resolved by the terms and
conditions stated in this Agreement.

Interpretation.

a. The parties fairly negotiated the Agreement's provisions to the extent they believed
necessary and with the legal representation they deemed appropriate.

b. The parties are of equal bargaining position and this Agreement must be construed equally
between the parties without consideration of which of the parties may have drafted this
Agreement.

c The Agreement will be interpreted in accordance with the laws of the State of Arizona.

Survival. Except as specifically provided otherwise in this Agreement, each warranty,
representation, indemnification and hold harmless provision, insurance requirement, and every
other right, remedy and responsibility of a Party, will survive completion of the Project, or the
earlier termination of this Agreement.

Amendment. No amendment to this Agreement will be binding unless in writing and executed by
the parties. Electronic signature blocks do not constitute execution for purposes of this Agreement.
Any amendment may be subject to City Council approval.

Remedies. All rights and remedies provided in this Agreement are cumulative and the exercise of
any one ot more right or remedy will not affect any other rights or remedies under this Agreement
or applicable law.

Severability. If any provision of this Agreement is voided or found unenforceable, that
determination will not affect the validity of the other provisions, and the voided or unenforceable
provision will be reformed to conform with applicable law.

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14.

15.

16.

13.7

Term.

14.1

14.2

Counterparts. This Agreement may be executed in counterparts, and all counterparts will together
comprise one instrument.

The term of this Agreement commences upon the effective date and continues for a five-year
period. There are no automatic renewals.

Extension for Procurement Processes, Upon the expiration of the Term of this Agreement,
including the initial term and any renewals, at the City’s sole discretion, this Agreement may be
extended on a month-to-month basis for a maximum of six (6) months to allow for the City to
complete its procurement process to select a vendor to provide the services/ materials similar to
those provided under this Agreement. The City will notify the Contractor in writing of its intent to
extend the Agreement at least thirty (30) calendar days prior to the expiration of the Term. Any
extension provided under this subsection will continue under the same terms and conditions as in
effect immediately prior to the expiration of the then-current term.

Dispute Resolution. Any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered according to the American Arbitration Association’s
Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.

Exhibits. The following exhibits, with reference to the term in which they are first referenced, are
incorporated by this reference.

Exhibit A Project
Exhibit B Scope of Work
Exhibit C Schedule
Exhibit D Compensation

[SIGNATURES ON FOLLOWING PAGE|]

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The parties enter into this Agreement effective as of the date shown above.

City of Glendale,
an Arizona municipal corporation

By: Kevin R. Phelps
Its: City Manager
ATIEST:

Julie K. Bower
City Clerk (SEAL)

APPROVED AS TO FORM:

Michael D. Bailey
City Attorney

Betts Spring Company, dba Betts ost Parts

ene CAMACHO
Drencln Nan anes

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EXHIBIT A
Services Agreement

PROJECT

Betts Spring Company dba Betts Truck Parts and Service is the sole authorized repair center for heavy-duty leaf
springs for heavy-duty vehicles. See attached letter from Betts Truck Parts and Setvice.

a e
Betts Earning Your Trust, Mile after Mile®
TRUCK PARTS & SERVICE

Thursday, January 13", 2022
Attn: Mr. Craig Croner
Fleet Management Superintendent
City of Glendale
6210 W Myrtle Ave, Suite 111

Glendale, AZ 85301-1700

Betts Spring Company is a manufacture of heavy-duty leaf springs for class 5 to 8 trucks,
school buses, refuse trucks, fire engines, and trailers. Betts Truck Parts and Service at 7375
W Buckeye Ave, Suite 100, in Phoenix, AZ is the only authorized repair center for their
products in the Western United States. Betts Truck Parts and Service is a parts and service
center that specializes in heavy duty leaf springs, suspensions, steering, drivetrain, brakes
and many other heavy-duty lines.

John Devany

Vice President of Sales
2867 South Maple Ave
Fresno, CA 93725

Cell: (925) 683-5106

Email: john.devany@bettstruckparts.com

ANalued Member of

BS) BettsCompany’

the Way Things Mowe" Since 1868

EXHIBIT B
Services Agreement

SCOPE OF WORK

Betts Spring Company dba Betts ‘Truck Parts and Service will provide heavy-duty leaf spring repairs on vehicles in
the City’s fleet, including vehicles for Solid Waste, Fire, Parks and Streets.

EXHIBIT C
Services Agreement

SCHEDULE

Not applicable. Services are provided on an as-needed basis.

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EXHIBIT D
Services Agreement

COMPENSATION

NOT-TO-EXCEED AMOUNT

The total amount of compensation paid to Consultant for full completion of all work required by the Project during
the entire term of the Project must not exceed $375,000.

DETAILED PROJECT COMPENSATION

Betts Spring Company dba Betts Truck Parts and Service will provide heavy-duty leaf spring repairs on vehicles in
the City's fleet, including vehicles for Solid Waste, Fire, Parks and Streets.