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HomeMy WebLinkAboutBoard of Regents Of UW System & Oshkosh AGREEMENT THIS AGREEMENT, made on the day of May, 2016, by and between the CITY of OSHKOSH, (CITY), and The Board of Regents of the University of Wisconsin System on behalf of the University of Wisconsin-Milwaukee Off ice of Sponsored Programs, PO Box 340, Milwaukee, 53201, (CONSULTANT). The CITY and the CONSULTANT, for the consideration hereinafter named, enter into the following Agreement. COMPONENT PARTS OF THE AGREEMENT This Agreement consists of the following component parts, all of which are as fully a part of this Agreement as if herein set out verbatim, or if not attached, as if hereto attached, in the following order of priority: 1. This Instrument 2. CITY'S Request for Proposals, including attachments 3. CONSULTANT'S Professional Services Proposal dated April 15, 2016 and attached hereto. If the Component Parts contain conflicting information or provisions, then the information or provisions shall be applied in their order of priority as listed above, unless otherwise expressly stated in this Agreement or other Component Part. ARTICLE I. PROJECT MANAGER A. Assignment of Project Manager. The CONSULTANT shall assign the following individual to manage the project described in this contract: JENNIFER HAAS, PRINCIPAL INVESTIGATOR B. Changes in Project Manager. The CITY shall have the right to approve or disapprove of any proposed change from the individual named above as Project Manager.The CITY shall be provided with a resume or other information for any proposed substitute and shall be given the opportunity to interview that person prior to any proposed change. CITY REPRESENTATIVE The CITY shall assign the following individual to manage this Agreement: ELIZABETH WILLIAMS, ASSOCIATE PLANNER 1 SCOPE OF WORK The CONSULTANT shall provide the services requested in the CITY'S Request for Proposals, as described in the CONSULTANT's attached Professional Services Proposal. CITY may make or approve changes within the general Scope of Services contained within the Professional Services Proposal and in this AGREEMENT. If such changes affect CONSULTANT's cost or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT. A Summary of the Scope of Work follows, with the details of the Scope further defined in the Component Parts. The CITY has been investigating the potential removal of certain items or obstructions from the Fox River in an area traversing through the CITY. The CITY has currently identified five (5) items within the River that may or may not have historical significance. The CITY is retaining the CONSULTANT to research, investigate, review, and record the contents of these five (5) sites and the surrounding area to determine their historical significance, if any. The CONSULTANT may identify additional items with potential historical value within the Project Area during the course of this Project. It is anticipated that after the CONSULTANT'S tasks are completed the CITY may develop tasks and schedules for removal, cleaning, identification, storage, and curation of items recovered from the Fox River. Permitting and other requirements from State or Federal agencies may required in those circumstances, along with other issues related to removal, disposal, transportation, and other logistical details and costs. This Agreement is not intended to include those other tasks beyond CONSULTANT'S research, investigation, review, and recording of the Project Area. The CITY and CONSULTANT may enter into future agreements regarding future work to be performed on this Project relating to identification, restoration, storage, and curation. RECORDS AND INSTRUMENTS OF SERVICE All reports, drawings, software, computer files, and other materials, documents and instruments prepared by the CONSULTANT as instruments of service shall become and remain the property of the CITY even if not in possession of the CITY. CONSULTANT agrees to cooperate with all Public Records requests. Any document related to this Agreement, whether in electronic or paper form, may be considered a public record to be provided to the City and eventually to others upon request. The Consultant may provide the City with an explanation of why they believe any document should not be released to the public. 2 TERM AND TERMINATION A. Term. This Agreement shall commence upon the date indicated above and shall terminate on September 1, 2016 unless terminated earlier by one of the parties as provided below. 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 and for noncancelable costs. 2. For Convenience. The CITY and CONSULTANT may terminate this Agreement at any time by giving written notice 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 mariner, 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 Consultant shall not have the right to assign this Agreement without the written prior consent of the City. INDEPENDENT CONTRACTOR CONSULTANT is an independent contractor and is not an employee of the CITY. 3 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) 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. CONDUCT The Consultant will be performing tasks for the City that may, in some cases, lead to acrimonious interactions with residents. Abusive or unprofessional language or actions towards others by the Consultant while performing these inspections functions are prohibited and will not be tolerated. Similarly, the Consultant shall not be expected to tolerate others who are abusive or inconsiderate to the Consultant. The Consultant shall remove him/herself from all situations involving abusive or unprofessional language or actions, regardless of who instigates such events. After removing him/herself from such situation, the Consultant shall provide the City with written documentation describing the event. Failure to comply with these requirements will constitute "cause"which may result in the immediate termination of this agreement. 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. 4 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 a lump sum, not-to- exceed amount for the performance of the AGREEMENT the total sum as set forth below, adjusted by any changes hereafter mutually agreed upon in writing by the parties hereto: • Lump Sum of$7,546 (Seven Thousand Five Hundred Forty Six Dollars) B. Method of Payment. Even though this Agreement is a lump sum, not-to-exceed, amount, 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, related to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation. 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 subcontractors related to the performance of this Agreement or be caused or result from 5 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 UWM warrants and represents that it is self-funded for liability (including general, professional, and automobile) insurance as an agency of the State of Wisconsin under secs. 895.46, 893.82 and 20.505(2)(k) of the Wisconsin Statutes. This liability insurance protection applies to UWM officers, employees and agents while acting within the scope of their duties, The liability insurance is funded to pay in excess of$1 million for negligent acts or omissions of its officers, employees, and agents, in accordance with the statutes. Coverage is continuous under the law. UWM cannot extend liability insurance protection to any other person. WHOLE AGREEMENT 1 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 CITY 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 6 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. NOTICES All notices, required to be sent, to the Consultant shall be sent to the following address: Jennifer R. Haas Principal Investigator PO Box 413 Milwaukee, WI 53201 All notices, required to be sent, to the City shall be sent to the following address: Elizabeth Williams Associate Planner 215 Church Avenue PO Box 1130 Oshkosh, WI 54903-1130 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. In the Presence of: UNIVERSITY OF WISCONSIN MILWAUKEE By: ,Vwf �- �faf�� (Seal of Contractor RONALD FLEISCHMANN, ASSOCIATE DIRECTOR if a Corporation.) CITY OF OSHKOSH By: Ma-k A. Rohloff, City Man ger itness), Pamela R. Ubrig, City 614k APPROVED: I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract Cit VAllorney ILN,K LL City Comptroller