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AGREEMENT
This AGREEMENT, made on the _____ day of ________________, 2022, by and
between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY,
and PROFESSIONAL SERVICE INDUSTRIES, INC., 3009 Vandenbroek Road,
Kaukauna, WI 54130, party of the second part, hereinafter referred to as the
CONSULTANT,
WITNESSETH:
The CITY and the CONSULTANT, for the consideration hereinafter named, enter
into the following AGREEMENT for GEOTECHNICAL ENGINEERING SERVICES
FOR OSBORN AVENUE (PROJECT).
ARTICLE I. PROJECT MANAGER
A. Assignment of Project Manager. The CONSULTANT shall assign the
following individual to manage the PROJECT described in this AGREEMENT:
Patrick Bray – Branch Manager
B. Changes in Project Manager. The CITY shall have the right to approve or
disapprove of any proposed change from the individual named above as Project
Manager. The CITY shall be provided with a resume or other information for any
proposed substitute and shall be given the opportunity to interview that person prior to
any proposed change.
ARTICLE II. CITY REPRESENTATIVE
The CITY shall assign the following individual to manage the PROJECT
described in this AGREEMENT:
Mike Blank – Construction Management Supervisor
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29th March
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ARTICLE III. SCOPE OF WORK
The CONSULTANT shall provide the services described in the CONSULTANT’s
Proposal. The CITY may make or approve changes within the general Scope of Services
in this AGREEMENT. If such changes affect CONSULTANT's cost of or time required
for performance of the services, an equitable adjustment will be made through an
amendment to this AGREEMENT.
All reports, drawings, specifications, computer files, field data, notes, and other
documents and instruments prepared by the CONSULTANT as instruments of service
shall become property of the CITY upon payment for those documents by the CITY to
the CONSULTANT, and shall remain the property of the CITY.
ARTICLE IV. 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.
ARTICLE V. 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.
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.
ARTICLE VI. ASBESTOS OR HAZARDOUS SUBSTANCES
If asbestos or hazardous substances in any form are encountered or suspected,
CONSULTANT will stop its own work in the affected portions of the PROJECT to
permit testing and evaluation.
If asbestos is suspected, CONSULTANT will, if mutually agreed, manage the
asbestos remediation activities using a qualified subcontractor at an additional fee and
contract terms to be negotiated.
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If hazardous substances other than asbestos are suspected, CONSULTANT will,
if mutually agreed, conduct tests in an effort to determine the extent of the problem and
will perform the necessary studies and recommend the necessary remedial measures at
an additional fee and contract terms to be negotiated.
The CITY recognizes CONSULTANT assumes no risk and/or liability for a waste
or hazardous waste site originated by other than the CONSULTANT.
ARTICLE VII. TIME OF COMPLETION
The work to be performed under this AGREEMENT shall be commenced and the
work completed within the time limits as agreed upon in the CONSULTANT’s Proposal.
The CONSULTANT shall perform the services under this AGREEMENT with
reasonable diligence and expediency consistent with sound professional practices. The
CITY agrees 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, failure of
performance by the CITY, or discovery of any hazardous substances or differing site
conditions. 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.
While CONSULTANT has made reasonable efforts to incorporate into their plan
for the PROJECT any known current project impacts of the COVID-19 pandemic,
CONSULTANT has not accounted for, and is not responsible for, unknown future
changes due to the COVID-19 pandemic, including, without limitation, additional
restrictions by government agencies or others (such as the availability of the site for
access or the availability of CITY or CONSULTANT staff or others) to the extent they
delay or otherwise impact the PROJECT. In that event, CONSULTANT will notify
CITY and work in good faith to equitably address any unexpected impacts therefrom.
ARTICLE VIII. 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
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2. CONSULTANT’s Proposal dated March 9, 2022 and attached hereto
In the event 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.
ARTICLE IX. PAYMENT
A. The Agreement Sum. The CITY shall pay to the CONSULTANT for the
performance of the AGREEMENT the total sum as set forth below, adjusted by any
changes hereafter mutually agreed upon in writing by the parties hereto:
Time and Materials Not to Exceed $3,216 (Three Thousand Two Hundred
Sixteen Dollars).
Attached fee schedule shall be firm for the duration of this AGREEMENT.
B. Method of Payment. The CONSULTANT shall submit itemized monthly
statements for services. The CITY shall pay the CONSULTANT within thirty (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.
D. Indirect Costs. Indirect costs such as computer time, printing, copying,
cell phone charges, telephone charges, and equipment rental shall be considered
overhead and shall not be invoiced separately to the PROJECT.
E. Expenses. Expenses may be billed with up to a maximum of ten percent
(10%) mark-up. All invoices with expenses shall include supporting documentation of
the expense. Failure to include the supporting documentation will result in the
reduction of payments by the amount of those expense(s) not including documentation.
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ARTICLE X. STANDARD PROVISIONS
The CONSULTANT agrees that, in all hiring or employment made possible by or
resulting from this AGREEMENT, there will not be any discrimination against any
employee or applicant for employment because of race, color, religion, sex, sexual
orientation, gender identity, or national origin.
ARTICLE XI. HOLD HARMLESS
The CONSULTANT covenants and agrees to protect and hold the City of
Oshkosh harmless against all actions, claims, and demands to the proportionate extent
caused by or resulting from the intentionally wrongful or negligent acts of the
CONSULTANT, his/her agents or assigns, his/her employees, or his/her subcontractors
related to the performance of this AGREEMENT or be caused or result from any
violation of any law or administrative regulation, and shall indemnify the CITY for all
sums including court costs, attorney fees, and damages of any kind which the CITY
may be obliged or adjudged to pay on any such claims or demands upon 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), or damages to person or property arising
out of re-use of the documents without consent 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.
ARTICLE XII. INSURANCE
The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance
Requirements.
ARTICLE XIII. TERMINATION
A. For Cause. If the CONSULTANT shall fail to fulfill in timely and proper
manner any of the obligations under this AGREEMENT, the CITY shall have the right
to terminate this AGREEMENT by written notice to the CONSULTANT. In this event,
the CONSULTANT shall be entitled to compensation for any satisfactory, usable work
completed.
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B. For Convenience. The CITY may terminate this AGREEMENT at any time
by giving written notice to the CONSULTANT no later than ten (10) calendar days
before the termination date. If the CITY terminates under this Paragraph, then the
CONSULTANT shall be entitled to compensation for any satisfactory work performed
to the date of termination.
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.
ARTICLE XIV. RE-USE OF PROJECT DOCUMENTS
All reports, drawings, specifications, documents, and other deliverables of
CONSULTANT, whether in hard copy or in electronic form, are instruments of service
for this PROJECT, whether the PROJECT is completed or not. Subject to individual
review, CONSULTANT’S reports, drawings, specifications, documents, or other
deliverables will generally be considered public records that are available to the
public upon request. Neither the CITY nor the CONSULTANT, therefore, has control
of these documents once they are disclosed as a public record. It is understood
between these two (2) parties, however, that CONSULTANT does not intend to state
or imply that the PROJECT documents it creates have any purpose unrelated to the
PROJECT. To the extent the CITY may re-use or reference any part of the
CONSULTANT’S documents or information on unrelated projects, the CITY agrees to
independently verify their applicability for unrelated projects and further agrees the
Standard of Care applicable to the documents for this PROJECT will not apply to
their re-use or reference in unrelated projects.
ARTICLE XV. SUSPENSION, DELAY, OR INTERRUPTION OF WORK
The CITY may suspend, delay, or interrupt the services of CONSULTANT for
the convenience of the CITY. In such event, CONSULTANT's agreement price and
schedule shall be equitably adjusted.
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ARTICLE XVI. NO THIRD-PARTY BENEFICIARIES
This AGREEMENT gives no rights or benefits to anyone other than the CITY and
CONSULTANT and has no third-party beneficiaries.
In the Presence of: CONSULTANT
____________________________ By: _____________________________
____________________________ Patrick Bray
(Seal of CONSULTANT Branch Manager
if a Corporation)
By: _____________________________
_____________________________
(Specify Title)
CITY OF OSHKOSH
_____________________________ By: _____________________________
(Witness) Mark A. Rohloff, City Manager
_____________________________ And: _____________________________
(Witness) Jessi L. Balcom, City Clerk
APPROVED: I hereby certify that the necessary provisions
have been made to pay the liability which
will accrue under this AGREEMENT.
_____________________________
City Attorney
___________________________________
City Comptroller
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