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PROFESSIONAL SERVICES AGREEMENT
City of Glendale and Kowalski Construction, Inc.
(Encampment Clean-up Services)
This Professional Services Agreement ("Agreement") is entered into and effective between CITY OF GLENDALE,
an Arizona municipal corporation ("City") and KOWALSKI CONSTRUCTION, INC., an Arizona corporation,
authorized to do business in the State of Arizona, ("Consultant") as of the day of , 2023
(“Effective Date”).
RECITALS
A. City intends to undertake a project for the benefit of the public and with public funds that is more fully set
forth in Exhibit A, Project (the "Project";
B. 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”);
C. Consultant desires to provide City with professional services (“Services”) consistent with best practices and
the standards set forth in this Agreement, in order to complete the Project; and
D. City and Consultant desire to memorialize their agreement with this document.
AGREEMENT
The parties hereby agree as follows:
1. Key Personnel.
11 Professional 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.
1.2 Project Team.
a. Project Manager.
(1) Consultant will designate an employee as Project Manager with sufficient training,
knowledge, and experience to, in the City's opinion, complete the project and
handle all aspects of the Project such that the work produced by Consultant is
consistent with applicable standards as detailed in this Agreement; and
(2) The City must approve the designated Project Manager.
b. Project Team.
(1) The Project Manager and all other employees assigned to the Project by
Consultant will comprise the "Project Team."
(2) Project Manager will have responsibility for and will supervise all other employees
assigned to the Project by Consultant.
con Discharge, Reassign, Replacement.
(1) Consultant will not discharge, reassign, replace or diminish the responsibilities of
any of the employees assigned to the Project who have been approved by City
without City's prior written consent unless that person leaves the employment of
Consultant, in which event the substitute must first be approved in writing by City.
(2) Consultant will change any of the members of the Project Team at the City's
request if an employee's performance does not equal or exceed the level of
competence that the City may reasonably expect of a person performing those
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duties, or if the acts or omissions of that person are detrimental to the
development of the Project.
2 Schedule. ‘The Services will be undertaken in a manner that ensures the Project is completed timely and
efficiently in accordance with the Project.
3. Consultant’s Work.
oe!
3.2
3.3
3.4
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.
Licensing. Consultant warrants that:
a. Consultant will hold all appropriate and required licenses, registrations and other approvals
necessary for the lawful furnishing of Services ("Approvals"); and
b. Consultant has not been debarred or otherwise legally excluded from contracting with any
federal, state, or local governmental entity ("Debarment”.
(1) 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.
Compliance.
a. 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.
b. 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.
Coordination; Interaction.
a. For projects that the City believes requires the coordination of various professional
services, Consultant will work in close consultation with City to proactively interact with
any other professionals retained by City on the Project ("Coordinating Project
Professionals").
b. Consultant will meet to review the Project, Schedule and in-progress work with
Coordinating Project Professionals and City as often and for durations as City reasonably
considers necessary in order to ensure the timely work delivery and Project completion.
c For projects not involving Coordinating Project Professionals, Consultant will proactively
interact with any other contractors when directed by City to obtain or disseminate timely
information for the proper execution of the Project.
4. Compensation for the Project.
4.1
4.2
Compensation. Consultant's compensation for the Project will not exceed $25,000.00 per year, or
$125,000.00 over the entire term of this Agreement, as specifically detailed in Exhibit C
("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.
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4.3
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
priority and govern the conduct of the parties.
Allowances. An “Allowance” may be identified in Exhibit C 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
identified in Exhibit C and any unused allowance at the completion of the Project will
remain with City.
Consultant will not use any portion of an Allowance without prior written authorization
from the City.
Billings and Payment.
5.1 Applications.
a. Consultant will invoice (each, a “Payment Application”) the City within thirty (30) calendar
days of completing a project as defined in Exhibit A, 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. After a full and complete Payment Application is received, City will process and remit
payment within 30 days.
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.
61 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 or Consultant may terminate this Agreement for cause if either Party fails to cure
any breach of this Agreement within seven days after receipt of written notice specifying the
breach.
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
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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 provision 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.
Gs Professional Liability. Consultant must maintain a Professional Liability insurance
covering errors and omissions arising out of the work or services performed by Consultant,
or anyone employed by Consultant, or anyone for whose acts, mistakes, errors and
omissions Consultant is legally liability, with a liability insurance limit of $1,000,000 for
each claim and a $1,000,000 annual aggregate limit.
d. 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 (i.e. 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, 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.
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8.3
8.4
8.5
8.6
8.7
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.
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 or
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.
G 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 insutet 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, and agent(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.
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.
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10.
11.
E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the Consultant warrant
their compliance with all federal immigration laws and regulations that relate to their employees and
compliance with the E-verify requirements under A.R.S. § 23-214(A). The Consultant’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 warrants to keep their respective papers and records open for random
inspection during normal business hours by the other party. The parties shall cooperate with the City’s
random inspections, including granting the inspecting party 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. To 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 Consultant will provide the City annually with a
Payment Card Industry Data Security Standard (PCI DSS) attestation of compliance certificate signed by an
officer of Consultant with oversight responsibility.
Notices.
12.1 A notice, request or other communication that is required or permitted under this Agreement (each
a "Notice") will be effective only if:
a. 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:
Kowalski Construction, Inc.
c/o Jason Todd
2219 W. Melinda Ln., Building A
Phoenix, AZ 85027
Email: jason@kowalski.com
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14.
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 Rick St. John
5850 W Glendale Ave., Suite 431
Glendale, Arizona 85301
Email: RSTJohn@GLENDALEAZ.com
With required copy to:
City Manager City Attorney
City of Glendale City of Glendale
5850 West Glendale Avenue 5850 West Glendale Avenue
Glendale, Arizona 85301 Glendale, Arizona 85301
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.
Changes. Consultant or City may change its representative or information on Notice, by
giving Notice of the change in accordance with this section at least ten days prior to the
change.
Financing Assignment. City may assign this Agreement to any City-affiliated entity, including a non-
profit corporation or other entity whose primary purpose is to own or manage the Project.
Entire Agreement; Survival; Counterparts; Signatures.
14.1
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.
Representations, statements, conditions, or warranties not contained in this Agreement will
not be binding on the parties.
Inconsistencies between the solicitation, any addenda attached to the solicitation, the
response or any excerpts attached as Exhibit A, 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.
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.
The Agreement will be interpreted in accordance with the laws of the State of Arizona.
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15.
16.
17.
14.3. 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.
14.4. 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.
14.5 Remedies. All rights and remedies provided in this Agreement are cumulative and the exercise of
any one or more right or remedy will not affect any other rights or remedies under this Agreement
or applicable law.
14.6 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.
14.7 Counterparts. This Agreement may be executed in counterparts, and all counterparts will together
comprise one instrument.
Term.
15.1 Renewals. The term of this Agreement commences upon the effective date and continues for a
one (1) year initial period. The City may, at its option and with the approval of the Consultant,
extend the term of this Agreement an additional four (4) years, renewable on an annual basis.
Consultant will be notified in writing by the City of its intent to extend the Agreement period at
least thirty (30) calendar days prior to the expiration of the original or any renewal Agreement
period. Price adjustments will only be reviewed during the Agreement renewal period and will be a
determining factor for any renewal. There are no automatic renewals of this Agreement.
15.2 Extension for Procurement Process. 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 Compensation
[SIGNATURES ON FOLLOWING PAGE]
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‘The parties enter into this Agreement effective as of the date shown above.
ATTEST:
Julie K. Bower
City Clerk
APPROVED AS TO FORM:
(SEAL)
Michael D. Bailey
City Attorney
City of Glendale,
an Arizona municipal corporation
By:
Its: City Manager
Kowalski Construction, Inc.,
an Arizona corporation
G2
Its: Authorized Representative
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EXHIBIT A
Professional Services Agreement
PROJECT
Consultant shall provide encampment clean-up services on an as needed basis at times and locations
determined by the City of Glendale.
EXHIBIT B
Professional Services Agreement
SCOPE OF WORK
Consultant will provide encampment clean-up services pursuant to the following operational conditions:
1) All employees shall conduct themselves courteously and professionally and be drug and alcohol free while
working in the City of Glendale.
2) All project areas shall be kept as clean and neat as possible.
3) Kowalski Construction is required to be a member of the Better Business Bureau.
4) Kowalski Construction must be registered and in good standing with the Arizona Registrar of Contractors.
5) City of Glendale will post a 48-hour notice to vacate by a specific date and location.
6) City of Glendale will call and email Kowalski that an Encampment Camp site is ready to be cleaned up.
7) Kowalski will have 5 days once contacted to clean up the Encampment Camp site unless prior approval to
extend services.
8) Kowalski will take photo documentation before, during, and after clean-up.
9) Kowalski will impound any valuable items over $250 value for 30 days.
10) Kowalski will have photos valuable of items and share with the City of Glendale, by sending photos
electronically to City’s Representative within 2 days of collection.
11) If impounded items are not retrieved within 30 days, Kowalski will notify City of Glendale that Kowalski is
disposing of such items.
12) If Kowalski encounters cash, guns, drugs, contraband, etc. Kowalski will notify Glendale Police Department
to retrieve them.
13) Kowalski will post a letter after clean-up is complete with contact information.
14) Kowalski will email City of Glendale once job is complete with photos.
15) Kowalski will submit invoice to City of Glendale, based off the pre-approved price list/estimate, as set forth
in Exhibit C.
16) Kowalski can begin scheduling the job once the 48-hour notice has been posted by City of Glendale and a
confirmation email has been sent to Kowalski.
17) If any corrections of pre-existing conditions or required code improvement are included in this contract,
they will be specifically stated in the Scope of Work.
EXHIBIT C
Professional 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 $25,000.00 per year and no more than $125,000 over the potential
term of this agreement paid out as set forth below and in section 5 above.
DETAILED PROJECT COMPENSATION
22-GLENDALE-HC-CLN
22-GLENDALE-HC-CLN
DESCRIPTION QTY UNIT PRICE TOTAL
1. CLEANING 1.00 EA@ 450.00 = 450.00
Price includes labor and truck to pickup 1 camp.
A camp is defined as one tent and surrounding area up to § yards around tent.
2. Single axle dump truck - per load - including dump fees 1.00 EA @ 250.00 = 250.00
Up to 3 camps we would charge a dump truck fee.
3. Dumpster load - Approx. 40 yards, 5 tons of debris 1.00 EA @ 820.01 = $20.01
Over 3 camps, we will supply a 40 yard dumpster.
Recap by Category
Items Total %
CLEANING 450.00 29.61%
GENERAL DEMOLITION 1,070.01 70.39%
1,820.01 100.00%
Subtotal