Draft_Service_Agreement.docx

COUNTY OF DANE

PROFESSIONAL SERVICES AGREEMENT

SIGNATURE PAGE

THIS AGREEMENT is between the County of Dane, by its Department of [Administration or Waste & Renewables], hereinafter referred to as “COUNTY”, and [A/E, Engineer or Consultant Name, Address, City, State, Zip], hereinafter called the [“A/E”, “ENGINEER”, “CONSULTANT”].

WITNESSETH

WHEREAS, COUNTY proposes securing [architectural / engineering, engineering, consulting] services for a Project described as follows:

[Project Title] WHEREAS, COUNTY deems it advisable to engage the services of the [A/E, ENGINEER, CONSULTANT] to furnish professional services in connection with this Project, and WHEREAS, COUNTY has authority to engage such services, and WHEREAS, the [A/E, ENGINEER, CONSULTANT] represents that it is in compliance with the applicable Wisconsin Statutes relating to the registration of architects and professional engineers and designers, and has agreed to furnish professional services for COUNTY, NOW, THEREFORE, in consideration of the premises and to their mutual and dependent agreements, the parties hereto agree as set forth in the following pages, which are annexed hereto and made a part hereof.

IN WITNESS WHEREOF, COUNTY and the [A/E, ENGINEER, CONSULTANT] have executed this Agreement as of the above date.

[A/E, ENGINEER, CONSULTANT Firm Name] COUNTY OF DANE

Signature Date County Executive Date

Printed Name Scott McDonell, County Clerk Date

Title

Federal Employer Identification Number (FEIN)

COUNTY OF DANE

PROFESSIONAL SERVICES AGREEMENT

TABLE OF CONTENTS

ARTICLES:

ATTACHMENTS:

ATTACHMENT A – SCOPE OF SERVICES

ATTACHMENT B – COMPENSATION SCHEDULE

ARTICLE 1: SCOPE OF AGREEMENT

1.A. This Agreement between COUNTY and the person or firm, duly licensed under the laws and in accordance with the regulations of the State of Wisconsin, hereinafter referred to as the “[A/E, ENGINEER, CONSULTANT]” shall be governed by the following Terms and Conditions.

1.B. The [A/E, ENGINEER, CONSULTANT] shall provide technical and professional services under this Agreement. The Terms and Conditions of this Agreement shall apply to modifications made to this Agreement and shall apply to both the services rendered in the creation of the design and to the additional services called for in carrying out the design.

1.C. The [A/E, ENGINEER, CONSULTANT] shall serve as the professional technical advisor and consultant to COUNTY in matters arising out of or incidental to the performance of this Agreement and in that capacity, the [A/E, ENGINEER, CONSULTANT] shall not have a contractual duty or responsibility to any other person or party or individual regarding the services under this Agreement, except as that duty may arise under the laws of the State of Wisconsin. The [A/E, ENGINEER, CONSULTANT] is not an agent of the COUNTY within the meaning of s. 893.80 or 895.46, Wis. Stats.

1.D. Professional services performed or furnished under this Agreement shall be based on the care and skill ordinarily used by members of the profession involved, who practice under the authority of and who are governed by the license issued under the Wisconsin Statutes and the Wisconsin Administrative Code. The standard of care for architectural and engineering services under this Agreement shall include designing buildings, structures and / or related infrastructural systems that comply with all applicable building and safety codes.

1.E. By accepting this Agreement, the [A/E, ENGINEER, CONSULTANT] represents possession of the necessary skill and other qualifications to perform work under this Agreement and is familiar with the practices in the locality where such services and work shall be performed.

1.F. The [A/E, ENGINEER, CONSULTANT] shall review and become familiar with the current Division 00 & 01 requirements utilized by COUNTY in construction contracts and shall provide services and work, consistent with such requirements, so that the Contractor’s schedule is not negatively impacted.

1.G. The [A/E, ENGINEER, CONSULTANT] shall be professionally responsible for work performed under this Agreement. Upon written approval of COUNTY, the [A/E, ENGINEER, CONSULTANT] may subcontract work to an approved consultant under this Agreement, to the specific extent authorized by COUNTY. The authorization to subcontract shall not relieve the [A/E, ENGINEER, CONSULTANT] of professional or contractual responsibility for any work performed or delivered under this Agreement. The authorization to subcontract shall not be construed to create any contractual relationship between COUNTY and such consultant.

1.H. Subcontracts for services under this Agreement shall provide that work performed under such subcontract, shall be subject to provisions of this Agreement and shall also provide that any professional duty or responsibility pertaining thereto shall be accomplished to the benefit of COUNTY. Upon request, an electronic copy of each such subcontract for which COUNTY approval is granted shall be furnished to COUNTY.

1.I. The [A/E, ENGINEER, CONSULTANT] may substitute consultants or professional staff under this Agreement only to the specific extent authorized by COUNTY in writing.

1.J. In the performance of this Agreement, the [A/E, ENGINEER, CONSULTANT] shall become familiar with and perform such services in accordance with the specifications set forth in the Request for Proposals document. The COUNTY reserves the right to update County Master Specifications Division 00 and Division 01 at any time, including after the signing date of this Agreement. The [A/E, ENGINEER, CONSULTANT] shall use and conform to the most current County Master Specifications Division 00 and Division 01 available at the time of Final Review Documents and the [A/E, ENGINEER, CONSULTANT] shall not be eligible for a change order based upon alterations to said County Master Specifications Division 00 and Division 01 occurring after the date of Agreement signing.

1.K. For this project the following terms will be in use:

1.K.1) The Project: The entirety of what is required to conceive, design, build, commission, start-up & troubleshoot the work for which this RFP and any subsequent RFB(s) are published.

1.K.2) Project Budget: The total amount of funds the County has allocated for the Project. This includes contingencies, fees, costs for design services, commissioning services, furniture, fixtures and equipment (FF&E) expenditures and the Construction Budget.

1.K.3) Construction Budget: The portion of the Project Budget specifically allocated for construction services, or the accepted bid amount including any alternate bids.

1.K.4) Construction Opinion of Probable Cost: The [A/E, ENGINEER, CONSULTANT]’s cost estimate for the Construction Budget before any bids are received.

1.K.5) [Project Planning Team = Dane County staff from the [User Dept.], [Public Works Engineering Division], [Administration, County Executive’s Office,] the architect / engineering design team (A/E) 1.K.6) [Project Committee = a group of individuals selected by the [Chair of the Public Protection & Judiciary Committee & the Sheriff]. The A/E shall be present & provide input for the meetings of this group.]

ARTICLE 2: COUNTY'S RESPONSIBILITIES

1.L. COUNTY will determine the Project scope for which the professional design services are required and will fully cooperate in achieving completion of that work.

1.M. COUNTY will establish an internal operating procedure for timely and proper performance of any COUNTY duty required to fulfill the needs of the Project.

1.N. COUNTY will provide available information regarding the requirements for the Project, which set forth COUNTY's objectives for program, schedule and overall Project Budget. COUNTY will make available to the [A/E, ENGINEER, CONSULTANT] data or documents known to COUNTY or requested by the [A/E, ENGINEER, CONSULTANT], which may be needed for the fulfillment of the professional responsibility of the [A/E, ENGINEER, CONSULTANT]. Documents provided by COUNTY shall not relieve the [A/E, ENGINEER, CONSULTANT] from the responsibility for conducting a field survey to verify existing conditions as specified herein.

1.O. COUNTY will communicate to the [A/E, ENGINEER, CONSULTANT] the format of the documents required to be submitted.

1.P. COUNTY will examine documents submitted by the [A/E, ENGINEER, CONSULTANT] and will render decisions regarding them promptly, to avoid unreasonable delay in the progress and sequence of the [A/E, ENGINEER, CONSULTANT]'s work. COUNTY will coordinate review comments from [the User Agency and] COUNTY staff prior to issuance to the [A/E, ENGINEER, CONSULTANT].

1.Q. COUNTY will distribute Construction Documents and any necessary addenda to prospective bidders and conduct the bid opening for the Project.

1.R. COUNTY will prepare and process the Agreements between COUNTY and [A/E, ENGINEER, CONSULTANT], and between COUNTY and construction contractor(s).

1.S. Unless otherwise specified in this Agreement, COUNTY will arrange for services of a testing laboratory to furnish structural, chemical, mechanical and other laboratory tests, inspections and reports as required by law or deemed necessary by COUNTY.

ARTICLE 3: ACCOUNTING RECORDS

1.T. Records of the [A/E, ENGINEER, CONSULTANT]'s direct personnel, consultants, and reimbursable expenses pertaining to the Project shall be kept in accordance with Generally Accepted Accounting Principles (GAAP) and shall be available to COUNTY or an authorized representative throughout the term of this Agreement and for at least three (3) years after final payment to the [A/E, ENGINEER, CONSULTANT].

ARTICLE 4: TERMINATION OF AGREEMENT

1.U. This Agreement may be terminated by COUNTY without cause upon ten (10) calendar days written notice to the [A/E, ENGINEER, CONSULTANT]. In the event of termination, the [A/E, ENGINEER, CONSULTANT] will be paid fees for services performed to termination date, reimbursable expenses then due, and termination expenses as approved by COUNTY. Work performed prior to the date of termination shall be in accordance with the terms and conditions of this Agreement. Upon termination, the results of such work shall immediately be turned over to the COUNTY Project Manager prior to further payment by COUNTY.

1.V. In the event the Agreement between the [A/E, ENGINEER, CONSULTANT] and any consultant on this Project is terminated, the results of work by that consultant shall immediately be turned over to the [A/E, ENGINEER, CONSULTANT].

ARTICLE 5: OWNERSHIP OF DOCUMENTS and Confidentiality 1.W. All reports, drawings, specifications, renderings, models, details, and other such documents prepared by the [A/E, ENGINEER, CONSULTANT] or any consultant pursuant to this Agreement shall become the property of COUNTY on completion and acceptance of any of the [A/E, ENGINEER, CONSULTANT]'s work, or upon termination of the Agreement, and shall be delivered to COUNTY upon request.

1.X. COUNTY may use documents prepared under this Agreement for informational purposes without additional compensation to the [A/E, ENGINEER, CONSULTANT]. If COUNTY uses or modifies documents without involvement or written consent of the [A/E, ENGINEER, CONSULTANT] or its sub-consultant(s), COUNTY shall remove name and signatures of the [A/E, ENGINEER, CONSULTANT] or its sub-consultant(s) from documents prior to such use or modification. Any such use or modification shall be at sole risk of COUNTY and without liability for the [A/E, ENGINEER, CONSULTANT] or its sub-consultant(s).

1.Y. Specifications and isolated, detail drawings inherent to the [architectural / engineering, engineering] design of the Project, whether provided by the COUNTY or generated by the [A/E, ENGINEER, CONSULTANT], shall be available for future use by the parties to this Agreement and other parties, each at their own risk.

1.Z. Confidential Information. “Confidential Information” shall mean any and all information, technical data and related material disclosed or made available by the COUNTY to the [A/E, ENGINEER, CONSULTANT] or their officers, directors, employees, subconsultants, subcontractors, contractors, representatives, or agents that is (a) not generally known to the public, and (b) identified as confidential, or, to a reasonable person, would be expected to be confidential due to its character and nature, including, but not limited to: financial information or projections; contract details; costs; pricing; designs, specifications and uses of products and services; product research; trade secrets; developments; inventions; processes; equipment settings; operational parameters; facilities; engineering techniques; data, know-how, or formats; software; business and strategic plans; business opportunities; employees; and other significant and valuable business information.

1.Z.1) Disclosure to Subcontractors. [A/E, ENGINEER, CONSULTANT] shall maintain Confidential Information in the strictest confidence and shall only disclose information to the extent necessary. Prior to the limited disclosure of confidential information to subconsultants or agents, the [A/E, ENGINEER, CONSULTANT] shall obtain the written agreement of such subconsultants to be bound by confidentiality.

1.Z.2) Ownership of Information. All right, title and interest in and to the Confidential Information shall be and remain vested in the COUNTY. [A/E, ENGINEER, CONSULTANT] shall not be granted any license or right of any kind with respect to the Confidential Information, other than to use the Confidential Information for the limited purposes of the Project.

1.Z.3) Disclosure Required by Law. If the [A/E, ENGINEER, CONSULTANT] is requested or required by law (by deposition, interrogatories, subpoenas, civil investigative demand or similar process) to disclose any Confidential Information or the existence of negotiations between the parties, the [A/E, ENGINEER, CONSULTANT] shall, unless prohibited by law, promptly notify the COUNTY of such request.

ARTICLE 6: LIABILITY- HOLD HARMLESS AND INDEMNIFICATION

1.AA. [A/E, ENGINEER, CONSULTANT] shall indemnify and hold harmless COUNTY, its boards, commissions, agencies, officers, employees and representatives against any and all liability, loss (including, but not limited to, property damage, bodily injury and loss of life), damages, costs or expenses which COUNTY, its officers, employees, agencies, boards, commissions and representatives may sustain, incur or be required to pay by reason of the [A/E, ENGINEER, CONSULTANT] furnishing the services required to be provided under this Agreement, but only to extent caused or resulting from intentional or negligent acts of the [A/E, ENGINEER, CONSULTANT] or its sub-consultant(s) and provided, however, that the provisions of this paragraph shall not apply to liabilities, losses, charges, costs, or expenses caused or resulting from the acts or omissions of COUNTY, its agencies, boards, commissions, officers, employees or representatives. The obligations of the [A/E, ENGINEER, CONSULTANT] under this paragraph shall survive the expiration or termination of this Agreement.

ARTICLE 7: PROFESSIONAL LIABILITY INSURANCE

1.AB. The [A/E, ENGINEER, CONSULTANT] and its consultants retained under the terms of this Agreement shall procure and maintain a professional liability insurance policy with at least $1,000,000 in coverage that provides for payment of the insured's liability for errors, omissions or negligent acts arising out of the performance of the professional services required under this Agreement. The [A/E, ENGINEER, CONSULTANT] shall provide up-to-date, accurate professional liability information on the [A/E, ENGINEER, CONSULTANT]’s Data Record, including amount of insurance, deductible, carrier and expiration date of coverage. Upon request by COUNTY, the [A/E, ENGINEER, CONSULTANT] shall furnish COUNTY with a Certificate of Insurance showing the type, amount, deductible, effective date and date of expiration of such policy. Such certificate shall also contain substantially the following statement: “The insurance covered by this certificate shall not be canceled, the coverage changed or reduced by endorsement, by the insurance company, except after thirty (30) calendar days written notice has been received by COUNTY.” The [A/E, ENGINEER, CONSULTANT] shall not cancel or materially alter this coverage without prior written approval by COUNTY. The [A/E, ENGINEER, CONSULTANT] shall be responsible for consultants maintaining professional liability insurance during the life of their Agreement.

ARTICLE 8: OTHER INSURANCE

1.AC. The [A/E, ENGINEER, CONSULTANT] and its consultants retained under terms of this Agreement shall:

1.AC.1) Maintain Worker’s Compensation Insurance:

1.AC.1) a. Procure and maintain Worker’s Compensation Insurance as required by State of Wisconsin Statutes for all of the [A/E, ENGINEER, CONSULTANT]’s and consultant’s employees engaged in work associated with the Project under this Agreement.

1.AC.1) b. Maintain Employer’s Liability Insurance with a policy limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. Insurance may be met by a combination of primary and excess coverage.

1.AC.2) Procure and maintain during the life of this Agreement, and until one year after the completion of this Agreement, Commercial General Liability Insurance, including Products and Completed Operations for all claims that might occur in carrying out the Agreement. Minimum coverage shall be $1,000,000 per occurrence, $1,000,000 general aggregate, combined single limit for bodily injury, personal injury, and property damage. Such coverage shall be of the “occurrence” type form and shall include the employees of the [A/E, ENGINEER, CONSULTANT] as insureds.

1.AC.3) Procure and maintain Commercial Automobile Liability Insurance for all owned, non-owned, and hired vehicles that are used in carrying out the Agreement. Minimum coverage shall be $1,000,000 per occurrence combined single limit for bodily injury and property damage. Insurance may be met by a combination of primary and excess coverage.

1.AC.4) Provide an insurance certificate indicating the above Commercial Liability Insurance and property damage coverage, countersigned by an insurer licensed to do business in Wisconsin, covering and maintained for the period of the Agreement. Upon request by COUNTY, the insurance certificate is to be presented on or before execution of the Agreement.

ARTICLE 9: MISCELLANEOUS PROVISIONS

1.AD. [A/E, ENGINEER, CONSULTANT] warrants that it has complied with all necessary requirements to do business in the State of Wisconsin, that the persons executing this Agreement on its behalf are authorized to do so.

1.AE. Legal Relations. The [A/E, ENGINEER, CONSULTANT] shall comply with and observe federal and state laws and regulations and local zoning ordinances applicable to this Project and in effect on the date of this Agreement.

1.AF. Approvals or Inspections. None of the approvals or inspections performed by COUNTY shall be construed or implied to relieve the [A/E, ENGINEER, CONSULTANT] from any duty or responsibility it has for its professional performance, unless COUNTY formally assumes such responsibility in writing from COUNTY so stating that the responsibility has been assumed.

1.AG. Successors, Subrogees and Assigns. COUNTY and [A/E, ENGINEER, CONSULTANT] each bind themselves, their partners, successors, subrogees, assigns, and legal representatives to the other party to this Agreement and to the partners, successors, subrogees, assigns and legal representatives of such other party with respect to covenants of this Agreement.

1.AH. Claims. The [A/E, ENGINEER, CONSULTANT]'s project manager will meet with COUNTY's Project Manager to attempt to resolve claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof. Issues not settled are to be presented in writing to the COUNTY Director of [Public Works or Waste & Renewables] for review and resolution. The decision of the Director of [Public Works or Waste & Renewables] shall be final. Work shall progress during the period of any dispute or claim. Unless specifically agreed between the parties, venue will be in Dane County, Wisconsin.

1.AI. Amendment of Agreement. This Agreement may be amended in writing by both COUNTY and [A/E, ENGINEER, CONSULTANT].

1.AJ. It is expressly understood and agreed to by the parties hereto that in the event of any disagreement or controversy between the parties, Wisconsin law shall be controlling. Venue for any legal proceedings shall be in the Dane County Circuit Court.

1.AK. This Agreement is intended to be an agreement solely between the parties hereto and for their benefit only. No part of this Agreement shall be construed to add to, supplement, amend, abridge or repeal existing duties, rights, benefits or privileges of any third party or parties, including but not limited to employees of either of the parties.

1.AL. The entire agreement of the parties is contained herein and this Agreement supersedes any and all oral agreements and negotiations between the parties relating to the subject matter hereof. The parties expressly agree that this Agreement shall not be amended in any fashion except in writing, executed by both parties.

1.AM. Execution. The parties agree that execution of this document may be made by electronic signatures. The parties may make electronic signatures by typing the name of the authorized signature followed by the words, “electronically signed” or by any other electronic means representing an authorized signature by [A/E, ENGINEER, CONSULTANT]. [A/E, ENGINEER, CONSULTANT] shall ensure that only authorized persons may affix electronic signatures to this Agreement and COUNTY may rely that the electronic signature provided by [A/E, ENGINEER, CONSULTANT] is authentic.

1.AM.1) This Agreement has no effect until signed by both parties. The submission of this Agreement to [A/E, ENGINEER, CONSULTANT] for examination does not constitute an offer. [A/E, ENGINEER, CONSULTANT] warrants that the persons executing this Agreement on its behalf are authorized to do so.

1.AM.2) This Agreement, and any amendment or addendum relating to it, may be transmitted by legible facsimile reproduction or by scanned legible electronic PDF copy and utilized in all respects as an original, wet-inked manually executed document. Further, this Agreement and any amendment or addendum thereto, may be stored and reproduced by each party electronically, photographically, by photocopy or other similar process, and each party may at its option destroy any original document so reproduced. All parties hereby stipulate that any such legible reproduction shall be admissible in evidence as the original itself in any judicial, arbitration or administrative proceeding whether or not the original is in existence and whether or not each party made such reproduction in the regular course of business. This provision does not apply to the service of notices under this Agreement.

ARTICLE 10: NONDISCRIMINATION IN EMPLOYMENT

1.AN. During the term of this Agreement, [A/E, ENGINEER, CONSULTANT] agrees not to discriminate on the basis of age, race, ethnicity, religion, color, gender, disability, marital status, sexual orientation, national origin, cultural differences, ancestry, physical appearance, arrest record or conviction record, military participation or membership in the national guard, state defense force or any other reserve component of the military forces of the United States, or political beliefs against any person, whether a recipient of services (actual or potential) or an employee or applicant for employment. Such equal opportunity shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, termination, training, rates of pay, and any other form of compensation or level of service(s). [A/E, ENGINEER, CONSULTANT] agrees to post in conspicuous places, available to all employees, service recipients and applicants for employment and services, notices setting forth the provisions of this paragraph. The listing of prohibited bases for discrimination shall not be construed to amend in any fashion state or federal law setting forth additional bases and exceptions shall be permitted only to the extent allowable in state or federal law.

1.AO. Civil Rights Compliance:

1.AO.1) If [A/E, ENGINEER, CONSULTANT] has twenty (20) or more employees and receives $20,000 in annual contracts with COUNTY, the [A/E, ENGINEER, CONSULTANT] shall submit to COUNTY a current Civil Rights Compliance Plan (CRC) for Meeting Equal Opportunity Requirements under Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title VI and XVI of the Public Service Health Act, the Age Discrimination Act of 1975, the Omnibus Budget Reconciliation Act of 1981 and Americans with Disabilities Act (ADA) of 1990. [A/E, ENGINEER, CONSULTANT] shall also file an Affirmative Action (AA) Plan with COUNTY in accordance with the requirements of Chapter 19 of the Dane County Code of Ordinances. [A/E, ENGINEER, CONSULTANT] shall submit a copy of its discrimination complaint form with its CRC/AA Plan. The CRC/AA Plan must be submitted prior to the effective date of this Agreement and failure to do so by said date shall constitute grounds for immediate termination of this Agreement by COUNTY. If an approved plan has been received during the previous calendar year, a plan update is acceptable. The plan may cover a two-year period. If [A/E, ENGINEER, CONSULTANT] has less than twenty (20) employees, but receives more than $20,000 from the COUNTY in annual contracts, it may be required to submit a CRC Action Plan to correct any problems discovered as the result of a complaint investigation or other Civil Rights Compliance monitoring efforts set forth herein below. If [A/E, ENGINEER, CONSULTANT] submits a CRC/AA Plan to a Department of Workforce Development Division or to a Department of Health and Family Services Division that covers the services purchased by COUNTY, a verification of acceptance by the State of [A/E, ENGINEER, CONSULTANT]’s Plan is sufficient.

1.AO.2) [A/E, ENGINEER, CONSULTANT] agrees to comply with the COUNTY's civil rights compliance policies and procedures. [A/E, ENGINEER, CONSULTANT] agrees to comply with civil rights monitoring reviews performed by the COUNTY, including the examination of records and relevant files maintained by the [A/E, ENGINEER, CONSULTANT]. [A/E, ENGINEER, CONSULTANT] agrees to furnish all information and reports required by the COUNTY as they relate to affirmative action and non-discrimination. [A/E, ENGINEER, CONSULTANT] further agrees to cooperate with COUNTY in developing, implementing, and monitoring corrective action plans that result from any reviews.

1.AO.3) [A/E, ENGINEER, CONSULTANT] shall post the Equal Opportunity Policy, the name of [A/E, ENGINEER, CONSULTANT]’s designated Equal Opportunity Coordinator and the discrimination complaint process in conspicuous places available to applicants and clients of services, applicants for employment and employees. The complaint process will be according to COUNTY's policies and procedures and made available in languages and formats understandable to applicants, clients and employees. [A/E, ENGINEER, CONSULTANT] shall supply to COUNTY’s Contract Compliance Specialist upon request a summary document of all client complaints related to perceived discrimination in service delivery. These documents shall include names of the involved persons, nature of the complaints, and a description of any attempts made to achieve complaint resolution.

1.AO.4) [A/E, ENGINEER, CONSULTANT] shall provide copies of all announcements of new employment opportunities to COUNTY’s Contract Compliance Specialist when such announcements are issued.

ATTACHMENT A – SCOPE OF SERVICES

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ATTACHMENT B – COMPENSATION SCHEDULE

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