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City
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Oshkosh
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, made on the 6fl, day of November, 2017, by and between the CITY of OSHKOSH,
hereinafter referred to as CITY, and MCMAHON ASSOCIATES INC, 1445 MCMAHON DRIVE,
NEENAH, WI 54956, hereinafter referred to as the CONSULTANT.
WITNESSETH:
That 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:
1. This Instrument
2. Consultant's Professional Services Proposal dated October 26, 2017, 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 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.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.cl.oshkosh.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
February 1, 2018, 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 amount of $12,200.00 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 for
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 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
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.
In the Presence of:
(Seal of CONSULTANT
if a Corporation.)
(Wi es )
(Wi zess
APPROVED:
4
ttrney
McMalh9ns diate Inc.
By:
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(Specify Title)
CITY OF OSHKOSH
00,
By:
Mark A. kohloff, City Manager
And
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Pamela R. Ubrig, City Clerk
I hereby certify that the necessary
provisions have been made to pay
the liability which will accrue under
this contract
ARL, rtc' a cam,
City Comptroller
10 f 00A F43 0 to) k I
ENGINEERS ARCHITECTS
City of Oshkosh
Attn: Mr. John Urben
215 Church Street
Oshkosh, WI 54901
PROJECT DESCRIPTION:
AGREEMENT
For PROFESSIONAL SERVICES
Date: October 26, 2017
McM. No. M0032-6-17-00008.12
To address and identify the current and future HVAC system components, modifications, and equipment
replacements
SCOPE OF SERVICES:
MCMAHON agrees to provide the following Scope Of Services for this project:
• HVAC Design Services Include:
o Drawing of the Basement Plan, First Floor Plan, Second Floor Plan, Penthouse Plan/Roof Plan.
o Floor plan to include (doors, walls, windows, major equipment, restroom fixtures, stairs, etc....).
o Present Room names/numbers as provided by Owner.
o Structural columns per existing pdf drawings, and shall be verified.
o Plans to include all shown ductwork/piping, diffusers, grilles, etc. & equipment and labeling of
existing equipment, ductwork sizes and ducts ups and ducts down and electric wall heaters.
o This work will include field verification of ducts and building components.
• Design Deliverables Include:
o REVIT model to include structural columns, joist, beams wall heights, and ceilig heights.
o ACAD drawings of Revit model.
o Emailed set of PDF floor plans.
o (1) Set hard copy full size.
EXCLUSIONS
This proposal does not include the following: Renderings, design documents (Architectural, Structural, Plumbing,
Mechanical, Electrical, Fire Sprinkler), site survey, topographical survey, civil design, landscape plan, storm water
plan, erosion control plan, geotechnical consulting or monitoring during construction, site utilities design;
presentations to local government if required to gain site plan approval or a change of zoning; a certified survey;
soil borings; interior design; Submittals and associated fees for the building, building systems or components and
site approvals will be by others. Modifications to the contract drawings as a result of changes in scope or design
requirements including, but not limited to, change in size, complexity, construction schedule and site conditions
that differ from those assumed for the development of the architectural and structural documents.
SPECIAL TERMS: (Refer Also To General Terms & Conditions - Attached)
The Scope Of Services and fee is based upon the understanding that the City of Oshkosh will provide the
following:
• Access to the various areas of the building during the verification process
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 the McMahon Group of Companies.
COMPENSATION: (Does Not Include Permit Or Approval Fees)
McMAHON agrees to provide the Scope Of Services described above for the following compensation:
HVAC Design Services (Lump Sum): $12,200.00
We invoice monthly, based upon the work completed. Invoices are payable within 30 days of receipt. Late
payments will be subject to interest at a rate of 1.5% per month.
COMPLETION SCHEDULE:
McMAHON agrees to complete this project as follows:
We are prepared to begin work immediately and will work with you to meet the schedule you require.
ACCEPTANCE:
The General Terms & Conditions And The Scope Of Services (Defined In The Above Agreement) Are Accepted, and
McMAHON Is Hereby Authorized To Proceed With The Services.
If this proposal for Services meets with your approval, we will prepare a contract for your signature.
The Agreement fee Is Firm For Acceptance Within S ty (60) Days From Date Of This Agreement
CITY Or OSHKOSH McMAHON ASSOC TES, INC.
Oshkosh, Wisconsin Neenah, Wjs?o n;�
By: By: (,
(Authorized Signature) N1folhaVl J. McMahon, AIA, NCARB
Title: Title: Vice P esident /Senior Architect
Date:
Date:
Project
Manager:
J641 B. Clary, P.E MBACGD
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 • WWW.MCMGRP.COM
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