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HomeMy WebLinkAboutMcMahon Associates HVAC Improvements Fire Dept ORIGINAL city I 3LS5 of Oshkosh PROFESSIONAL SERVICES AGREEMENT ENGINEERING SERVICES: OSHKOSH FIRE DEPARTMENT HVAC IMPROVEMENTS THIS AGREEMENT,made on the 21ST day of FEBRUARY,2019,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 FEBRUARY 4,2019, 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.ci.oshkosh.wi.us 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: McMahon As ciates nc. By: taTZ rn i C Fo (Seal of CONSULTANT (Specify Title) if a Corporation.) CITY OF OSHKOSH By: Mark A. ohloff, City Manager (Witne s) And: Witness) Pamela R.Ubrig, City Clerk APPROVED: I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract • A orney ie(cif City Comptroller SCOPE OF SERVICES: (continued) E) Permit fees for local and state submittals required for work to be performed. F) Opinion of probable cost for scope of work. G) Site visits during design phase. H) Detailed temperature controls plans and specifications beyond temperature control schematics. SPECIAL TERMS: (Refer Also To General Terms&Conditions-Attached) 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 McMahon Associates Inc. COMPENSATION: (Does Not Include Permit Or Approval Fees) McMahon Associates, Inc. proposes to complete the above Scope of Services for the following lump sum fees: Lump sum fee of$18,500.00. COMPLETION SCHEDULE: McMAHON agrees to complete this project as follows: Schedule shall be coordinated once a PO has been issued for the work. ACCEPTANCE: The General Terms &Conditions And The Scope Of Services (Defined In The Above Agreement)Are Accepted, and McMahon Associates, Inc. Is Hereby Authorized To Proceed With The Services. The Agreement Fee Is Firm For Acceptance Within Sixty(60)Days From Date Of This Agreement CITY OF OSHKOSH McMAHON ASSOCIATES, INC. Oshkosh, Wisconsin Neenah, ! o in By: By: (Authorized Signature) Thomas P. Kocken, P.E. Title: Title: Executive Vice President/ Industrial Group Manager Date: Date: 2 — 4 -- .2 G/? Project t Manager: gt,ee eGrl, el B. Clary, P.E. MBA CGD Project Engineer 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 W:\WP\Agreements\SF-Agreements(McM)\2019\00005-01-JBC.docx(sdk) Page 2 Revised: August 29,2018 • 1VIc1V�AHO�T McMAHON ASSOCIATES, INC. �N1G'tNEERB' ';;4Nf H� EFats GENERAL TERMS & CONDITIONS • 1. McMAHON ASSOCIATES, INC. (hereinafter referred to as 'McMAHON')will bill the Owner monthly with net payment due in 30-days. Past due balances shall be subject to a service charge at a rate of 1.0% per month. In addition, McMAHON may, after giving 48-hours notice, suspend service under any Agreement until the Owner has paid in full all amounts due for services rendered and expenses incurred. These expenses include service charges on past due invoices, collection agency fees and attorney fees incurred by McMAHON to collect all monies due McMAHON. McMAHON and Owner hereby acknowledge that McMAHON has and may exercise lien rights on subject property. 2. The stated fees and Scope Of Services constitute our best estimate of the fees and tasks required to perform the services as defined. This Agreement, upon execution by both parties hereto, can be amended only by written instrument signed by both parties. For those projects involving conceptual or process development services, activities often cannot be fully defined during initial planning. As the project progresses, facts uncovered may reveal a change in direction,which may alter the Scope. McMAHON will promptly inform the Owner in writing of such situations so changes in this Agreement can be negotiated,as required. 3. The stipulated fee is firm for acceptance by the Owner for 60-days from date of Agreement publication. 4. Costs and schedule commitments shall be subject to re-negotiation for delays caused by the Owner's failure to provide specified facilities or information, or for delays caused by unpredictable occurrences,including without limitation,fires,floods,riots,strikes, unavailability of labor or materials,delays or defaults by suppliers of materials or services, process shutdowns, acts of God or the public enemy,or acts or regulations of any governmental agency. Temporary delay of services caused by any of the above,which results in additional costs beyond those outlined,may require re-negotiation of this Agreement. 5. Reimbursable expenses incurred by McMAHON in the interest of the project including,but not limited to,equipment rental will be billed to the Owner at cost plus 10%and sub-consultants at cost plus 12%. When McMAHON, subsequent to execution of an Agreement, finds that specialized equipment must be purchased to provide special services, the cost of such equipment will be added to the agreed fee for professional services only after the Owner has been notified and agrees to these costs. 6. McMAHON will maintain insurance coverage in the following amounts: Worker's Compensation Statutory General Liability Bodily Injury-Per Incident/Annual Aggregate $1,000,000/$2,000,000 Automobile Liability Bodily Injury $1,000,000 Property Damage $1,000,000 Professional Liability Coverage $2,000,000 If the Owner requires coverage or limits in addition to the above stated amounts, premiums for additional insurance shall be paid by the Owner. McMAHON's liability to Owner for any indemnity commitments,reimbursement of legal fees,or for any damages arising in any way out of performance of our contract is limited to ten(10)times McMAHON's fee not to exceed to$500,000. 7. The Owner agrees to provide such legal, accounting and insurance counseling services as may be required for the project for the Owner's purpose. All unresolved claims,disputes and other matters in question between the Owner and McMAHON shall be submitted to mediation, if an agreement cannot be reached by Owner and McMAHON. 8. Termination of this Agreement by the Owner or McMAHON shall be effective upon 7-days written notice to the other party. The written notice shall include the reasons and details for termination; payment is due as stated in paragraph 1. -If the Owner defaults in any of the Agreements entered into between McMAHON and the Owner,or if the Owner fails to carry out any of the duties contained in these terms and conditions, McMAHON may,upon 7-days written notice, suspend its services without further obligation or liability to the Owner unless, within such 7-day period, the Owner remedies such violation to the reasonable satisfaction of McMAHON. 9. Re-use of any documents or AutoCAD representations pertaining to this project by the Owner for extensions of this project or on any other project shall be at the Owner's risk and the Owner agrees to defend, indemnify and hold harmless McMAHON from all claims, damages and expenses, including attorneys' fees arising out of such re-use of the documents or AutoCAD representations by the Owner or by others acting through the Owner. U O • 10. Purchase Orders-In the event the Owner issues a purchase order or other instrument related to the Engineer's services, it is understood and agreed - that such document is for Owner's internal accounting purposes only and shall in no way modify, add to or delete any of the terms and conditions of this NJ Agreement. If the Owner does issue a purchase order,or other similar instrument,it is understood and agreed that the Engineer shall indicate the purchase a order number on the invoice(s)sent to the Owner. - 11. McMAHON will provide all services in accordance with generally accepted professional practices. McMAHON will not provide or offer to provide services 3 inconsistent with or contrary to such practices nor make any other warranty or guarantee, expressed or implied, nor to have any Agreement or contract for gservices subject to the provisions of any uniform commercial code. Similarly,McMAHON will not accept those terms and conditions offered by the Owner in 3 its purchase order, requisition or notice of authorization to proceed,except as set forth herein or expressly accepted in writing. Written acknowledgment of receipt, or the actual performance of services subsequent to receipt, of any such purchase order, requisition or notice of authorization to proceed is N specifically deemed not to constitute acceptance of any terms or conditions contrary to those set forth herein. 3- 12. McMAHON intends to serve as the Owner's professional representative for those services, as defined in this Agreement, and to provide advice and consultation to the Owner as a professional. Any opinions of probable project costs,approvals and other decisions made by McMAHON for the Owner are rendered on the basis of experience and qualifications, and represent our professional judgment. Nothing contained in this Agreement shall create a c contractual relationship with,or a cause of action,in favor of a third party against either the Architect or McMAHON. 0 3 13. This Agreement shall not be construed as giving McMAHON the responsibility or authority to direct or supervise construction means, methods, > techniques,sequence or procedures of construction selected by Contractors or Subcontractors,or the safety precautions and programs incident to the work of the Contractors or Subcontractors. 14. The Owner shall be responsible for maintenance of the structure,or portions of the structure,which have been completed and have been accepted for its intended use by the Owner. All structures are subject to wear and tear, and environmental and man-made exposures. As a result, all structures require regular and frequent monitoring and maintenance to prevent damage and deterioration. Such monitoring and maintenance is the sole responsibility of the Owner. McMAHON shall have no responsibility for such issues or resulting damages.