HomeMy WebLinkAboutProfessional Services Agreement: Grand Opera House Backstage HVAC Unit Replacement 33
A IGINAL
Oshkosh
PROFESSIONAL SERVICES AGREEMENT
GRAND OPERA HOUSE BACKSTAGE HVAC UNIT REPLACEMENT
THIS AGREEMENT, made can the 2011, day of June, 2018,. by and between the CITY of OSHKOSH,
hereinafter referred to as CITY, and MCMAHON ASSOCIATES INC, 1.445 MCMAHON DRIVE,
NEENAH,WI 54956,hereinafter referred to as the CONSULTANT.
WITHESSETH:
That the CITY and the CONSULTANT, for the consideration hereinafter named, enter into the
following Agreement.
COMPONENT PANTS OF THE AGREEMENT
This Agreement consists of the following component harts, all of which. are as fully a hart of this
Agreement as if herein set out verbatim, or if not attached, as if hereto attached:
1. This Instrument
2. Consultant's Professional Services Proposal dated June 1.9, 2018,. and attached hereto.
In the event that any provision in any of the above component parts of this.Agreement conflicts with any
provision in any other of the component parts, the provision. in the component part first enumerated
above shall govern over any other component part which .follows it numerically except as may be
otherwise specifically stated.
CITY REPRESENTATIVE,
The CITY shall assign the following individual to manage this Agreement:
Jon Urben, General Services Division
SCOPE OF WORK
The CONSULTANT shall provide the services described in the CONSULTANT's attached Professional
Services Proposal. CITY may make or approve changes within the general Scope of Services contained.
within tl.~re Professional Services Proposal and.in this AGREEMENT.If such changes affect CONSUL,TAN'T"'s
cost or time required for performance of the services, an equitable adjustment will be made through an
amendment to this AGREEMENT.
City Hall,215 Church Avenue P.O.Box 1130 Oshkosh,WI 54903-1 130 http://www,ci,oshkosli.wi.us
RECORDS AND INSTRUMENTS OF SERVICE
The City acknowledges the CONSULTANT's reports, drawings, data, computer files, and other
materials, documents prepared by the CONSULTANT as instruments of professional service.
Nevertheless, the plans and specifications prepared under this Agreement shall become the property of
the City upon completion of the work and payment in full of all monies due to the CONSULTANT. The
City agrees, to the fullest extent permitted by law, that CONSULTANT does not warranty or guaranty
its deliverables in the context of only reuse or modification of the instruments of service by the City or
any person or entity for which the City is responsible. Any document related to this agreement,whether
in electronic or paper form, is considered a public record and shall be provided to the City upon request.
The CONSULTANT may provide the City with an explanation of why they believe any document should
not be released to the public. The City shall make all final determinations regarding the release of any
document related to this Agreement.
TERM AND TERMINATION
A. Term. This Agreement shall commence upon the date indicated above and shall terminate on
December 31, 201.8, unless terminated earlier by one of the parties as provided below, except that CITY
may extend this Agreement, upon written notice to CONSULTANT.
B. Termination.
1. For Cause. If either party shall fail to fulfill in timely and proper manner any of the obligations under
this Agreement, the other party shall have the right to terminate this Agreement by written notice. In
this event,the CONSULTANT shall be entitled to compensation to the date of delivery of the Notice.
2.For Convenience. The CITY may terminate this Agreement at any time by giving written notice to the
CONSULTANT no later than 30 calendar days before the termination date.
TIME OF COMPLETION
The CONSULTANT shall perform the services under this Agreement with reasonable diligence and
expediency consistent with sound professional practices. The CITY agrees that the CONSULTANT is
not responsible for damages arising directly or indirectly from any delays for causes beyond the
CONSULTANT's control. For the purposes of this Agreement, such causes include, but are not limited
to, strikes or other labor disputes, severe weather disruptions or other natural disasters, or failure of
performance by the CITY. If the delays resulting.from any such causes increase the time required by the
CONSULTANT to perform its services in an orderly and efficient manner, the CONSULTANT shall be
entitled to an equitable adjustment in schedule.
SUSPENSION,DELAY,OR INTERRUPTION OF WORK
CITY may suspend, delay, or interrupt the Services of CONSULTANT for the convenience of CITY. In
such event, CONSULTANT's contract price and schedule shall be equitably adjusted.
ASSIGNMENT
Neither party to this Agreement shall transfer, sublet or assign any rights under or interest in
this Agreement (including,but not limited to, monies that are due or monies that may be due)
without the prior written consent of the other party.
INDEPENDENT CONTRACTOR
CONSULTANT is an independent contractor and is not an employee of the CITY.
COOPERATION IN LITIGATION AND AUDITS
CONSULTANT shall fully and completely cooperate with the City, the City's insurer, the City's
attorneys, the City's Auditors or other representative of the City(collectively, the "City" for purposes of
this Article) in connection with (a) any internal or governmental investigation or administrative,
regulatory, arbitral or judicial proceeding (collectively "Litigation") or internal or governmental Audit,
with respect to matters relating to this Agreement; other than a third party proceeding in which
CONSULTANT is a named party and CONSULTANT and the City have not entered into a mutually
acceptable joint defense agreement.
Such cooperation may include,but shall not be limited to, responding to requests for documents and/or
other records, and making CONSULTANT's employees available to the City (or their respective
insurers, attorneys or auditors) upon reasonable notice for: (i) interviews, factual investigations, and
providing declarations or affidavits that provide truthful information in connection with any Litigation
or Audit; (ii) appearing at the request of the City to give testimony without requiring service of a
subpoena or other legal process; (iii) volunteering to the City all pertinent information related to any
Litigation or Audit; and (iv) providing information and legal representations to auditors in a form and
within a timeframe requested.
City shall reimburse CONSULTANT for reasonable direct expenses incurred in connection with
providing documents and records required -under this paragraph and may require, at the City's sole
discretion,such expenses to be documented by receipts or other appropriate documentation. Reasonable
direct expenses include costs, such as copying, postage and similar costs; but do not include wages,
salaries, benefits and other employee compensation. CONSULTANT shall not be entitled to additional
compensation for employee services provided under this paragraph.
STANDARD OF CARE
The standard of care applicable to CONSULTANT's Services will be the degree of skill and diligence
normally employed by professional CONSULTANTs or consultants performing the same or similar
Services at the time said services are performed. CONSULTANT will re-perform any services not
meeting this standard without additional compensation.
CITY RESPONSIBILITIES
The CITY shall furnish, at the CONSULTANT's request, such information as is needed by the
CONSULTANT to aid in the progress of the project, providing it is reasonably obtainable from City
records.
CONSULTANT may reasonably rely upon the accuracy,timeliness,and completeness of the information
provided by CITY.
To prevent any unreasonable delay in the CONSULTANT's work,the CITY will examine all reports and
other documents and will make any authorizations necessary to proceed with work within a reasonable
time period.
PAYMENT
A. The Agreement Sum. The CITY shall pay to the CONSULTANT for the performance of the
Agreement the total amount of $3,500.00 in the Cost portion of the Consultant's Professional Services
Proposal.
B.Method of Payment. The CONSULTANT shall submit itemized monthly statements for services. The
CITY shall pay the CONSULTANT within 30 calendar days after receipt of such statement. If any
statement amount is disputed, the CITY may withhold payment of such amount and shall provide to
CONSULTANT a statement as to the reason(s) for withholding payment.
C. Additional Costs. Costs for additional services shall be negotiated and set forth in a written
amendment to this Agreement executed by both parties prior to proceeding with the work covered under
the subject amendment.
HOLD HARMLESS
The CONSULTANT covenants and agrees to protect and hold the City of Oshkosh harmless against all
actions, claims, and demands which may be to the proportionate extent caused by or result from the
intentional or negligent acts of the CONSULTANT, its agents or assigns, its employees, or its
SUBCONSULTANT related to the performance of this Agreement or be caused or result from any
violation of any law or administrative regulation, and shall indemnify or refund to the CITY all sums
including court costs, attorney fees, and punitive damages which the CITY may be obliged or adjudged
to pay on any such claims or demands within thirty (30) days of the date of the CITY's written demand
for indemnification or refund for those actions, claim, and demands caused by or resulting from
intentional or negligent acts as specified in this paragraph.
Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes,the
City further agrees to hold CONSULTANT harmless from any and all liability, including claims,
demands, losses, costs, damages, and expenses of every kind and description (including death), which
may be to the proportionate extent caused by or result from the intentional or negligent acts of the CITY,
its agents or assigns, its employees, or its SUBCONSULTANTS related to the performance of this
Agreement or be caused or result from any violation of any law or administrative regulation,where such
liability is founded upon or grows out of the acts or omission of any of the officers, employees or agents
of the City of Oshkosh while acting within the scope of their employment.
It is the intention of the parties to this Agreement that each party shall be solely responsible for its own
actions and activities and the actions and activities of its own officers,employees and agents while acting
within the scope of their employment
INSURANCE
The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance Requirements far Professional
Services.
WHOLE AGREEMENT/AMENDMENT
This document and any specified attachments contain all terms and conditions of the Agreement and
any alteration thereto shall be invalid unless made in writing, signed by both parties and incorporated
as an amendment to this Agreement.
NO THIRD-PARTY BENEFICIARIES
This AGREEMENT gives no rights or benefits to anyone other than CM and CONSULTANT and has
no third-party beneficiaries.
AGREEMENT NOT TO BE CONSTRUED AGAINST ANY PARTY
This Agreement is the product of negotiation between the parties hereto and no term, covenant or
provision herein or the failure to include a term, covenant or provision shall be construed against any
party hereto solely on the basis that one party or the other drafted this Agreement or any term, covenant
or condition contained herein.
NO WAIVER
Failure of either party to insist upon the strict performance of terms and provisions of this agreement, or
any of them, shall not constitute or be construed as a waiver or relinquishment of that party's right to
thereafter enforce such term or provision, and that term of the provisions shall continue in full force and
effect.
NON-DISCRIMINATION
The Operator agrees not to discriminate in its operations under this Agreement on the basis of race,color,
creed, age, and gender, or as otherwise prohibited by law. A breach of this covenant may be regarded
as a material.breach of this Agreement
SEVERABILITY
If any term, covenant, condition or provision of this agreement shall be invalid or enforceable, the
remainder of this agreement shall not be affected thereby the remainder of the agreement shall be valid
and enforceable to the fullest extent permitted by law.
CHOICE OF LAW AND VENUE
The laws of the State of Wisconsin shall govern the interpretation and construction of this Agreement.
Winnebago County shall be the venue for all disputes arising under this Agreement.
IN WITNESS WHEREOF, the City of Oshkosh, Wisconsin, has caused this contract to be sealed
with its corporate seal and to be subscribed to by its City Manager and City Clerk and countersigned by
the Comptroller of said City, and CONSULTANT hereunto set its hand and seal the day and year first
above written.
I mcma te n I s Inc/
In of ho�U
By:
(Seal of CONSULTANT (Specify Title)
if a Corporation.)
CITY OF OSHKOSH
By:
Mark A.'Rohloff, City Manager
(Wjness)
ox,And:
itness) Pamela R. Ubrig, City Clerk
APPROVED: I hereby certify that the necessary
provisions have been made to pay
the liability which will accrue under
this contract
—i*fyy/,A4)orneyy
City Comptroller
McMAHON AGREEMENT
. . M For PROFESSIONAL SERVICES
City of Oshkosh Date: June 19,2018
Attn:Mr.Jon Urben
Manager of General Services Division
215 Church Street
Oshkosh,WI 54901 McM. No. M0032-9-18-0001.00/.08
PROJECT DESCRIPTION: ZAy�,� �,�,(j
City of Oshkosh needs to replace the 33 year old RTU that no longer is cooling the stage area. McMahon needs to put
together a project to replace this unit ASAP.
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SCOPE OF SERVICES:
McMahon Associates,Inc. (McMahon) agrees to provide the following professional HVAC engineering services:
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1. Conduct a site visit to observe the existing RTUs which should be replaced.
2. Put an AutoCAD plan together Laying out the existing RTU location.
3. Put together a schedule of the,existing and replacement RTUs specifics.
4. Attend a walk through meeting with contractors bidding on project,
5. Attend bid opening and write a report on contractor recommendation.
6. Perform a final walk through and punch list equipment installed.
The following are not included in McMahon Associates Inc Scope of Services,
1. Design of the Electrical system.
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2. Design of the Plumbing system.
3. Any changes required by the HVAC Control or Fire Alarm system.
4. Special testing or measurements of the existing HVAC system
5. Structural Engineering to design support for new equipment
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SPECIAL TERMS: (Refer Also To General Terms&Conditions-Attached)
The City of Oshkosh agrees that the Project Description,Scope Of Services and Compensation sections contained in this
Agreement, pertaining to this project or any addendum thereto, are considered confidential and proprietary, and shall
not be released or otherwise made available to any third party, prior to the execution of this Agreement,without the
expressed written consent of McMahon Associates Inc.
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COMPENSATION: (Does Not Include Permit Or Approval Fees) s
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McMahon Associates,Inc. proposes to complete the above Scope of Services for the following lump sum fees:
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Layout of exiting RTUs on Roof and complete a Replacement schedule: $ 3,500
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COMPLETION SCHEDULE: I
McMahon Associates, Inc. proposes to complete the scope of services within four weeks after authorization to proceed.
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ACCEPTANCE:
The General Terms&Conditions And The Scope Of Services(Defined In The Above Agreement)Are Accepted, and
McMahon Associates, Inc. Is Hereby Authorized To Proceed With The Services.
The Agreement Fee Is Firm For Acceptance Within Sixty(60)Days From Date Of This Agreement
CITY OF OSHKOSH McIVIAHON ASSOCIATES, INC.
Oshkosh,Wisconsin Neenah,Wi
By: By:
(Authorized Signature) Vic Lutz,C.F.O.
Title: Title: senior Vice President/Chief Financial Officer
Date: Date:
Project
Manager:
JaB. Clary, P.E MBA CGD
Please Return One Copy For Our Records
Street Address: 1445 McMAHON DRIVE-NEENAH,WI 54956
Mailing Address: P.O.Box 1025-NEENAH,WI 54957-1025
PH 920-751-4200 FX 920-751-4284 VVVVW.MCMGRP.COM
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Revised: November 29,2017
McMAHON McMAHON ASSOCIATES, INC.
GENERAL TERMS & CONDITIONS
1. MCMAHON ASSOCIATES, INC.(hereinafter referred to as'McMAHON')will bill the Owner monthly with net payment due In 30-days. Past due balances
shall be subject to a service charge at a rate of 1.0% per month. in addition, McMAHON may, after giving 48-hours notice, suspend service under any
Agreement until the Owner has paid In full all amounts due for services rendered and expenses incurred. These expenses Include service charges on past
due Invoices, Collection agency fees and attorney fees Incurred by McMAHON to Collect all monles due McMAHON. McMAHON and Owner hereby
acknowledge that McMAHON has and may exercise Hen rights on subject property.
2. The stated fees and Scope Of Services constitute our best estimate of the fees and tasks required to perforrn the services as defined, This Agreement,
upon execution by both parties hereto, can be amended only by written Instrument signed by both parties. For those projects Involving conceptual or
process development services, activities often cannot be fully defined during Initial planning. As the project progresses, facts uncovered may reveal a
change in direction,which may alter the Scope. McMAHON will promptly Inform the Owner In writing of such situations so changes In this Agreement can be
negotiated,as required.
3. The stipulated fee is firm for acceptance by the Owner for 60-days from date of Agreement publication,
4. Costs and schedule commitments shall be subject to re-negotiation for delays caused by the Owner's failure to provide specified facilities or Information,or
for delays caused by unpredictable occurrences,including without limitation,fires,floods,riots,strikes,unavailability of labor or materials,delays or defaults
by suppliers of materials or services, process shutdowns,acts of God or the public enemy,or acts or regulations of any governmental agency. Temporary
delay of services caused by any of the above,which results in additional costs beyond those outlined,may require re-negotiation of this Agreement,
5. Reimbursable expenses Incurred by McMAHON In the interest of the project including,but not limited to,equipment rental will be billed to the Owner at cost
plus 10%and sub-consultants at cost plus 12%. When McMAHON,subsequent to execution of an Agreement,finds that specialized equipment must be
purchased to provide special services,the cost of such equipment will be added to the agreed fee for professional services only after the Owner has been
notified and agrees to these Costs,
6. McMAHON will maintain Insurance Coverage In the following amounts:
Worker's Compensation..........................................................................................Statutory
General Liability
Bodily Injury-Per Incident/Annual Aggregate................$1,000,000/$2,000,000
Automobile Liability
BodilyInjury.........................................................................................$1,000.000
PropertyDamage................................................................................$1,000,000
Professional Liability Coverage...........................................................................$2,000,000
If the Owner requires coverage or limits In addition to the above stated amounts, premiums for additional Insurance shall be paid by the Owner,
McMAHON's liability to Owner for any Indemnity commitments,reimbursement of legal fees,or for any damages arising In any way out of performance of our
contract is limited to ten(10)times McMAHON's fee not to exceed to$500,000.
7. The Owner agrees to provide such legal,accounting and Insurance counseling services as may be required for the project for the Owner's purpose, All
unresolved claims, disputes and other matters in question between the Owner and McMAHON shall be submitted to mediation,if an agreement cannot be
reached by Owner and McMAHON.
8. Termination of this Agreement by the Owner or McMAHON shall be effective upon 7-days written notice to the other party. The written notice shall Include
the reasons and details for termination; payment is due as stated in paragraph 1. If the Owner defaults in any of the Agreements entered Into between
McMAHON and the Owner,or if the Owner fails to Carry out any of the duties contained in these terms and conditions,McMAHON may,upon 7-days written
notice,suspend its services without further obligation or liability to the Owner unless,within such 7-day period, the Owner remedies such violation to the
reasonable satisfaction of McMAHON.
9, Re-use of any documents or AutoCAD representations pertaining to this project by the Owner for extensions of this project or on any other project shall be at
the Owner's risk and the Owner agrees to defend,indemnify and hold harmless McMAHON from all claims, damages and expenses, Including attorneys'
fees arising out of such re-use of the documents or AutoCAD representations by the Owner or by others acting through the Owner,
10. Purchase Orders-in the event the Owner Issues a purchase order or other instrument related to the Engineer's services,It Is understood and agreed that
such document is for Owner's internal accounting purposes only and shall in no way modify, add to or delete any of the terms and Conditions of this
Agreement. If the Owner does Issue a purchase order,or other similar Instrument,It Is understood and agreed that the Engineer shall indicate the purchase
order number on the invotce(s)sent to the Owner.
11. McMAHON will provide all services in accordance with generally accepted professional practices, McMAHON will not provide or offer to provide services
Inconsistent with or contrary to such practices nor make any other warranty or guarantee,expressed or implied,nor to have any Agreement or Contract for
services subject to the provisions of any uniform commercial code. Similarly,McMAHON will not accept those terms and conditions offered by the Owner in
Its purchase order, requisition or notice of authorization to proceed,except as set forth herein or expressly accepted in writing. Written acknowledgment of
receipt, or the actual performance of services subsequent to receipt, of any such purchase order, requisition or notice of authorization to proceed is
specifically deemed not to constitute acceptance of any terms or conditions contrary to those set forth herein.
12. McMAHON Intends to serve as the Owners professional representative for those services, as defined In this Agreement, and to provide advice and
consultation to the Owner as a professional. Any opinions of probable project costs,approvals and other decisions made by McMAHON for the Owner are
rendered on the basis of experience and qualifications,and represent our professional judgment,
13. This Agreement shall not be construed as giving McMAHON the responsibility or authority to direct or supervise construction means,methods,techniques,
sequence or procedures of construction selected by Contractors or Subcontractors, or the safety precautions and programs Incident to the work of the
Contractors or Subcontractors.
14, The Owner shall be responsible for maintenance of the structure,or portions of the structure,which have been completed and have been accepted for its
Intended use by the Owner. All structures are subject to wear and tear,and environmental and man-made exposures. As a result, all structures require
regular and frequent monitoring and maintenance to prevent damage and deterioration. Such monitoring and maintenance Is the sole responsibility of the
Owner, McMAHON shall have no responsibility for such issues or resulting damages.
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