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Oshkosh X311
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, made on the 25TH day of JANUARY, 2018 by and between the CITY of OSHKOSH,
hereinafter referred to as CITY, and PERFORMANCE ELEVATOR CONSULTING, LLC, P.O. BOX 464,
MEQUON, WI 53092-0464, 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 January 24, 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 MANAGER)
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.ci.oshkosh.wi.us
RECORDS AND INSTRUMENTS OF SERVICE
All reports, drawings, software, data, computer files, and other materials, documents and instruments
prepared by the CONSULTANT as instruments of service shall remain the property of the CITY. 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 existence or 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, 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
CONSULTANT shall not have the right to assign this Agreement without the written prior consent of
the City.
INDEPENDENT CONSULTANT
CONSULTANT is an independent CONSULTANT 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 $14,551,00 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
SUBCONSULTANTs 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 ]imitations 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.)
APPROVED:
41ttorney
CONSULTANT
Name of Company/Firm
(Specify Title)
CITY OF OSHKOSH
By:
Mark A. Rohloff, City Manager
C
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
..J► �L'(�C� C�N3J.1yYt
City Comptroller
.............
Post office Box 464
Performance
Mequon, WI 53092-0464
Voice /Fax: 262-242-3077
t Px ElevatorCiomulflM = :� Mobile No. 262-853-1054
E-mail: Perform ElevCons@wi.rr.com
MODERNIZATION CONSULTING PROPOSAL AND ACCEPTANCE
Performance Elevator Consulting, LLC. (Consultant) proposes to perform elevator Consulting Services, as detailed, for Client of:
City of Oshkosh Location: City Hall
P.O. Box 1130 215 Church Avenue, Oshkosh
Oshkosh, WI 53903-1130
Equipment: (1) Otis Electric Passenger Elevator
State Reg. No. 16870
Proposal No. 1
Provide elevator consulting design and project oversight services for the modernization of the 1979
vintage electric passenger elevator at City Hall:
• Conduct an objective site evaluation of the existing elevator to determine project requirements,
considering the equipment age, usage, code compliance, accessibility, and new technology.
• Identify and briefly outline the related work of other trades, such as electrical, fire alarm, and
HVAC, which are typically undertaken and managed by others.
• Contract Documents: Write the elevator specification, 14 21 20, detailing the modernization
requirements for bidding by various contractors.
• Include the applicable alteration requirements to meet the applicable ASME A17.1-2013 and
SPS 318 elevator safety codes.
• Discuss proprietary vs. non-proprietary elevator control systems and other components for
consideration by the Owner to promote maintainability.
• Obtain a current cost estimate for the elevator alterations.
• Commission elevator shop drawings for bidding purposes. It is stipulated that the Owner will
provide a copy of the building drawings (hoistway and machine room) for reference, and the
original Otis layout and cab drawings, if available.
• Participate in one Pre -Bid conference and site inspection of the elevators with prospective
bidders. Respond to bidder questions by addendum, as necessary.
• Assist Client in evaluating bids and provide recommendation for project award.
• Serve as a reference and resource for the City of Oshkosh throughout the project.
• Review elevator contractor submittals, including product data and shop drawings. Provide
feedback to Client.
• Lead a Pre -Construction meeting to finalize critical scheduling and coordinate other work.
• Observe work progress during installation with periodic site visits on approximately a
semimonthly basis to ensure conformance with specification requirements.
• Audit the finished installation to ensure compliance with the project specification. Provide
Client with input on specified performance levels. Provide punch list of non-compliant items.
• Review elevator contractor's invoices for Client as requested.
• Review maintenance manual, wiring diagrams, and warranty submittal/closeout documents.
Price for Consulting Services as detailed..................................................................................... $14,551.00
This agreement when signed by Client and by Performance Elevator Consulting, LLC., including the
terms and conditions set forth on the back which are incorporated herein and expressly made a part
hereof, shall constitute exclusively the contract between the parties, and all prior representations or
agreements not incorporated herein are superceded.
Signed and Accepted by Client
Client
Signature
Name/Title
Date
Performance Elevator Consulting, LLC.
By
Paul S. Rosenberg
President
Date January 24, 2018