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HomeMy WebLinkAboutPSA_TR_Karrels_GOH_Accessible_Lift_Replacement_AE_Services_2023 City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.ci.oshkosh.wi.us PROFESSIONAL SERVICES AGREEMENT A/E SERVICES FOR GRAND OPERA HOUSE ACCESSIBLE LIFT REPLACEMENT THIS AGREEMENT is entered into on the 8th day of February, 2023, by and between the CITY of OSHKOSH, 215 Church Avenue, Oshkosh, Wisconsin 54901 (City), and T.R. KARRELS & ASSOCIATES, 1934 ALGOMA BOULEVARD, OSHKOSH, WI 54901 (Consultant). 1. Consideration. The City and Consultant agree to the terms and conditions of this Agreement in return for the monetary and other consideration described herein. The parties acknowledge the receipt of the consideration and further acknowledge that the consideration given and received is of sufficient value to induce them to enter into this Agreement. 2. Component Parts of the Parties’ Agreement. For convenience, the parties agree to compile various separate documents related to this project and incorporate them into this Agreement. Therefore, the terms and conditions of this Agreement may be in multiple places, and consist of the component parts described below. The component parts may or may not be physically attached to this Agreement. Regardless of whether or not they are attached, they are considered to be fully incorporated as a part of this Agreement. The component parts of this Agreement are: a. The terms of this Professional Services Agreement, including any other documents or terms referenced and/or attached, but not including component parts identified below. b. Consultant’s proposal dated February 8, 2023, and identified as the GRAND OPERA HOUSE- ACCESSIBLE LIFT REPLACEMENT, which is attached hereto. c. The terms and conditions are listed above in order of importance. If terms and conditions in various component parts are conflicting, then the terms and conditions in the component part first listed will control over the conflicting term and condition found in the later component part. The preceding rule of interpretation may be modified by the parties in particular circumstances where described elsewhere in this Agreement. DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 2 3. Representatives. The parties assign the following persons as the primary contacts for their respective interests related to managing and carrying out the tasks of this Agreement. These persons may be changed upon written notice from the party making the change. a. For the City: Jon Urben, General Services Manager b. For the Consultant: John Kieckhafer, Architect 4. Scope of Work. Consultant shall provide the services described in the component parts identified above. Any changes must be placed in writing and signed by both parties. Changes in scope may include a need to adjust the contract amount either up or down. 5. Records and Deliverables. Reports, plans and specifications, and other information may be provided to City as deliverables for this Project. a. Deliverables 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. b. However, Consultant may continue to use the deliverables and information therein for descriptions or discussions of this project in other contexts, and may also use some or all of the information in the deliverables in or for other projects. Any such subsequent use by Consultant shall be without royalty or other fees, or obligations, to City. c. Consultant’s deliverables are intended only for use related to the Project subject to this Agreement, and are not subject to any warranty or guaranty if subsequently modified or reused for a later project. d. Documents, including deliverables, created by Consultant may subsequently be viewed by, or provided to, a third person as a public record not subject to redaction or withholding by applicable law. In such instances, neither party retains control over subsequent uses of these documents and therefore neither party shall consider the other responsible for such subsequent use. DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 3 6. Term and Termination a. Term. This Agreement shall commence upon the date indicated above and shall terminate on December 31, 2023, or the completion of the final item identified in the Time Line and Work Schedule, whichever occurs first, or unless terminated earlier by one of the parties as provided below, The City may extend this Agreement, upon written notice to Consultant. b. Termination. i. For Cause. If either party shall fail to fulfill in timely and proper manner any of the material obligations under this Agreement, the other party may, at its discretion, terminate this Agreement by written notice. In this event, the Consultant shall be entitled to compensation to the date of delivery of the Notice. ii. 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. In this event, the Consultant shall be entitled to compensation to the termination date. 7. Time of Completion. 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, public health emergencies, 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. 8. 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. DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 4 9. 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. 10. Independent Contractor. Consultant is an independent contractor and is not an employee of the City. 11. 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). a. Cooperation is expected in connection with 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. b. Excluded from this duty of cooperation is 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. c. Examples of expected 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. d. 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 DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 5 entitled to additional compensation for employee services provided under this paragraph. 12. 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. 13. 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. 14. Payment. a. Amount. The City shall pay to the Consultant for the performance of the tasks described in their proposal on a Time & Material (T&M) basis at the rates listed within their proposal. b. 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 disputed amount and shall provide to Consultant a statement as to the reason(s) for withholding payment. Amounts invoiced and not disputed shall be paid according to the regular schedule agreed upon. 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. 15. Hold Harmless. It is the intention of the parties that each party shall be solely responsible for its own actions, inactions, and activities, including the actions and activities of its own officers, employees and agents while acting within the scope of their employment. DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 6 a. The Consultant covenants and agrees to protect and hold the City of Oshkosh harmless against all actions, claims, and demands which may arise related to this Project. Consultant’s obligations will be to the proportionate extent caused by or resulting from the intentional or negligent acts of the Consultant, its agents or assigns, its employees, or any Sub-Consultant it has retained to assist with this issue. The relevant acts are those which are related to the performance of this Agreement or which are caused by or result from any violation of any law or administrative regulation. Consultant shall indemnify or refund to the City all sums expended including court costs, attorney fees, and punitive damages which the City may be obliged or adjudged to pay. Claims or demands are due 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. b. Subject to any and all immunities and limitations contained in Wisconsin Statutes, Sec. 893.80, and any applicable part of the Wisconsin Statutes, the City agrees to hold Consultant harmless from liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), 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 Sub-Consultants related to the performance of this Agreement or which may 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. 16. Insurance. The Consultant agrees to procure and retain in good standing policies which in all respects comply with the attached City of Oshkosh Insurance Requirements for Professional Services. 17. Whole Agreement / Amendment. This document and any attachments identified or documents referenced contain all terms and conditions of the Agreement and any additions, subtractions, or alterations to the resulting Agreement shall be invalid unless made in writing, signed by both parties and incorporated as an amendment to this Agreement. DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 7 18. No Third-Party Beneficiaries. This Agreement gives no rights, benefits, or obligations to anyone other than City and Consultant and therefore there are no third-party beneficiaries of this Agreement. 19. Non-Discrimination. The Consultant will not discriminate in its actions related to this Agreement on the basis of race, color, creed, age, and gender, or other protected classes as otherwise prohibited by law. A breach of this term may be regarded as a material breach of this Agreement. Consultant agrees that all hiring or employment related to this Agreement will not involve any discrimination against any employee or applicant for employment related to race, color, religion, sex, sexual orientation, gender identity, national origin, or other protected class as otherwise prohibited by law. 20. Public Records. The City is a governmental entity that is required to comply with Wisconsin public records laws. Consultant acknowledges that Wisconsin Public Records laws assume records are available for public viewing unless there are specific other laws that prevent or limit release, and further acknowledges that documents provided to a public entity such as the City are treated by the law differently than documents provided to a private entity. Consultant also acknowledges that it is a contractor of the City and therefore pursuant to Wisconsin law may be in possession of public records which are not otherwise also in the possession of the City. Consultant agrees to cooperate with the City and any public records requests. Notwithstanding any other term of this Agreement, including component parts, the City will always be allowed to use documents in conformity with all applicable laws, including public records laws. Any action the City takes that is consistent with any applicable law shall not be considered a breach or violation of this Agreement, regardless if this Agreement or any attachment or referenced document includes terms or conditions that conflict with applicable law that the City is following. Consultant may elect to challenge a public records decision by City, but must do so at its own risk and own cost, regardless of the outcome of such challenge. 21. Confidentiality. City as a public body is required by law to maintain certain levels of transparency of its activities, including those activities carried out through consultants. Therefore, only those documents related to the Project that benefit from explicit statutory protections may be redacted or withheld from release. Consultant’s designation of documents or information as “confidential,” “proprietary,” or similar designation will not prevent its public viewing or use unless it is otherwise protected by law. Similarly, references to lawful protections of information and documents through intellectual property rights, trade secrets, or similar designations, will be protected only to the extent DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 8 that they qualify for statutory or common law protections. As a general rule, in light of the statutory definition and required chain of custody protocols, it is unlikely that information disclosed to City would be considered a valid trade secret. Consultant may elect to challenge a decision in this regard by the City, but will do so at its own risk, and its own cost, regardless of the outcome of such challenge. 22. Agreement Not to Be Construed Against Any Party. This Agreement is the product of negotiation between all parties and therefore 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. 23. 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. 24. Severability. If any term, covenant, condition or provision of this Agreement shall be adjudged invalid or unenforceable by a court of competent jurisdiction, the remainder of this agreement shall not be affected thereby and the remainder of the agreement shall be valid and enforceable to the fullest extent permitted by law. 25. Choice of Law, Venue, and Dispute Resolution. 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. The parties agree that it may be beneficial to undertake an initial mutually agreeable mediation to resolve a dispute. However, unless otherwise agreed to by the parties, all disputes shall be resolved by the judiciary. Under no circumstance shall any dispute be subject to arbitration. 26. Signatures. By placing their signatures below, each individual affirms that the entity they represent is authorized to enter into this Agreement, and further affirm that they are authorized by the entity they are representing to bind their respective parties to the terms and conditions of this Agreement. DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76 9 T.R. KARRELS & ASSOCIATES By: _____________________________ Tom Karrels, President/Owner CITY OF OSHKOSH By: _______________________________ Mark A. Rohloff, City Manager And: _______________________________ Jessi Balcom, City Clerk Approved as to form: I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract _____________________________ Lynn A. Lorenson, City Attorney ______________________________________ Russ Van Gompel, Finance Director DocuSign Envelope ID: F5894070-D214-40CC-95EB-927496202D76