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HomeMy WebLinkAboutPerformance Elevator Consulting Oshkosh Public MuseumPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, made on the 111h day of MONTH, 2018, by and between the CITY of OSHKOSH, hereinafter referred to as CITY, and PERFORMANCE ELEVATOR CONSULTING, LLC, PO BOX 464, MEQUON WI 53092-3077, 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 April 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, Manager, 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.ci.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 DATE, 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 $1,411.00 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.) amp, �r 400.4,102-1,1�.._ r APPROVED: ttorne Name of CONSULTANT Company/Firm riC!'77!1q1/Y.l�ts��L/A,S L^G� By: (Specify Title) CITY OF OSHKOSH By: ,• Mak A. Rohloff, City Manager And: Pamela R. Ubrig, City lerk I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract City Comptroller Post on, Wl 3092- ]Performance Mequon, 2- 42-3070464 �7�, Office: 262-242-3077 Eleyal i Comuf of LW. Cell: 262-853-1054 E-mail: PaulR@PEC-wi.com CONSULTING SERVICES PROPOSAL AND ACCEPTANCE Performance Elevator Consulting, LLC. (Consultant) proposes to perform elevator Consulting Services, as detailed, for Client of: Oshkosh Public Museum Equipment: (1) Dover Oildraulic Passenger Elevator 1331 Algoma Boulevard Regulated Object ID No 506847 Oshkosh, WI 54901-2703 (1) Vertical Platform Lift Regulated Object ID No 1274577 Proposal No. 1: Equipment Assessment Perform assessments of the designated conveyances. The following services are included: • An examination of the elevator will include the in -car devices, car top, hoistway, pit, and machine room; and the applicable areas for the platform lift. • Perform a condition assessment of the existing elevator equipment • Identification of maintenance deficiencies including Elevator Code violations • Accessibility compliance evaluation per ADA and ICC/ANSI Al 17.1 standards • Evaluate elevator performance, including door operation, door times, etc. • Review your current service provider's maintenance, callback, repair, replacements, testing, and Firefighters' Operation records available at the time of the assessment. Price for consulting services, as summarized above for one elevator ........................ $1,142.00 Add for one vertical platform lift................................................................................... $ 269.00 Add travel expenses only if n scheduled on April 1 ...... ......................................... A written report of deficiencies will be provided for corrective action by your elevator service provider. Recommendations for safety, performance, and modernization upgrades, where appropriate, will be summarized separately with budget estimates. Reports will be submitted electronically as PDF documents. Some photos may be included. 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. Signed and Accepted by Client Client Signature Name/Title Performance Elevator Consulting, LLC ByPa4d5• Paul S. Rosenberg President Date I Date April 9, 2018 Terms and Conditions Client represents that they have legal authority to execute this Proposal. This Proposal is submitted for acceptance within sixty (60) days from the date executed by us and thereafter subject to withdrawal or change without notice. In the event the Client's acceptance is in the form of a Purchase Order or other document, the provisions, terms, and conditions of this Proposal shall govern in the even of conflict. Consultant warrants that it has the experience and ability to perform the Consulting Services, as contemplated by this Proposal, and that it will perform the Consulting Services in a professional and competent manner, and makes no other representations and warranties, whether expressed or implied. Consultant's cumulative liability, if any, to Client for any and all claims whatsoever related to the Consulting Services or this Proposal, including, but not limited to any cause of action sounding in contract, tort, or strict liability, will not exceed the total amount of all consulting fees paid to Consultant by Client under this Proposal with respect to the defective or nonconforming service. You agree to provide access to the equipment and to provide pertinent information, inspection reports, and maintenance records requested to carry out the assessment review. No liability for the use, operation, management or control of the equipment is assumed by Performance Elevator Consulting, LLC. It is stipulated that Consultant is an independent contractor and shall not be treated as an employee of Client for State and Federal tax or for any other purpose. Client agrees to pay Performance Elevator Consulting, LLC. 100% of consulting fees upon delivery of the assessment report and due upon receipt of invoice. If timely payment is not made within 30 days, Consultant shall be entitled to a service charge of 1.5% per month on all past due amounts, plus all costs of collection, including reasonable attorney's fees.