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AGREEMENT
This AGREEMENT, made on the 9th day of February, 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 CONSTRUCTION MATERIALS TESTING SERVICES
FOR 2022 CAPITAL IMPROVEMENT PROGRAM.
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
ARTICLE III. SCOPE OF WORK
The CONSULTANT shall provide the services described in the CITY’S Request for
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.
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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. RECORD DRAWINGS
Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others. CONSULTANT is not responsible for any errors or
omissions in the information from others the CONSULTANT reasonably relied upon and
are incorporated into the record drawings.
ARTICLE VI. 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 VII. 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 VIII. 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 CITY’s Request for 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 IX. 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. CITY’s Request for Proposal dated January 14, 2022 and attached hereto
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3. CONSULTANT’s Proposal dated January 25, 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 X. 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 $96,650 (Ninety Six Thousand Six
Hundred Fifty 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 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 XI. 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 XII. 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 XIII. INSURANCE
The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance
Requirements.
ARTICLE XIV. 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 XV. 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 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 XVI. 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 XVII. 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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City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.ci.oshkosh.wi.us
January 14, 2022
Patrick Bray
Professional Services Industries, Inc.
1125 West Tuckaway Lane, Suite B
Menasha, WI 54952
E-Mail: patrick.bray@psiusa.com
RE: Request for Proposals (RFP) for Construction Materials Testing Services for
2022 Capital Improvement Projects
Dear Patrick:
The City of Oshkosh (City) is hereby requesting Proposals be submitted for Construction Materials
Testing services related to the City’s 2022 Capital Improvement Projects.
The services requested are providing nuclear density testing services of utility trench backfill,
laboratory testing, and other field testing of these materials, as necessary.
The Proposal shall include, at a minimum: related project experience; planned project team and
resumes; laboratory testing, standard asphalt testing, other construction testing, and engineering fee
schedules; and a breakdown of costs, as requested in the enclosed Scope of Services. The Proposals will
be reviewed for completeness and how well it is demonstrated the needs of the City can be met. The
award of this work will not be based solely on the cost of the Proposal.
Questions regarding this RFP shall be e-mailed to me at mblank@ci.oshkosh.wi.us (with the subject
heading of “2022 CIP Construction Materials Testing RFP Questions”) by 12:00 noon on Thursday,
January 27, 2022. The questions and appropriate responses will be distributed to all parties receiving
this RFP by 4:30 p.m. on Friday, January 28, 2022. Please submit one (1) hard copy and one (1) pdf
copy of the Proposal to Tracy Taylor no later than 9:00 a.m. on Tuesday, February 1, 2022. It is
anticipated the award of this Agreement will be made by Tuesday, February 8, 2022. Please ensure
you have the proper insurance paperwork, so the award is not delayed.
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Enclosed with this letter are copies of the Scope of Services, Proposal Cost Breakdown, Standard
Engineering Services Agreement, and Professional Services Liability Insurance Requirements. The
information contained within these enclosures shall become a part of the Agreement with the
Consultant selected to perform the Services.
If you have any questions, please do not hesitate to contact us.
Sincerely,
Mike Blank
Construction Management Supervisor
MB/tlt
Enclosures
cc: James Rabe, P.E., CPESC, Director of Public Works
Steven M. Gohde, P.E., Assistant Director of Public Works / Utilities General Manager
Justin Gierach, P.E., Engineering Division Manager / City Engineer
File
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SCOPE OF SERVICES
CITY OF OSHKOSH
CONSTRUCTION MATERIALS TESTING SERVICES
2022 CAPITAL IMPROVEMENT PROJECTS
This Agreement is to provide utility nuclear density testing services of utility trench backfill,
laboratory testing, and other field testing of these materials, as necessary. Responsibilities
include providing qualified timely response, daily coordination and communication with
contractors and City staff, and prompt professional reporting of test results.
1. Background
A. The following City Projects are planned to be covered under this Agreement:
1. Contract 22-01 Bowen Street Sanitary Interceptor Sewer and Storm Sewer
Construction
a. Bowen Street (East Murdock Avenue to Anchorage Court)
2. Contract 22-02 East 9th Avenue Reconstruction
a. East 9th Avenue (South Main Street to Pioneer Drive)
3. Contract 22-03 Bradley Street Asphalt and Utility Construction
a. Bradley Street (West 28th Avenue to West Waukau Avenue)
4. Contract 22-04 – Algoma Boulevard and Vine Avenue Reconstruction
a. Algoma Boulevard (Wisconsin Street to Congress Avenue)
b. Vine Avenue (Algoma Boulevard to High Street)
5. Contract 22-05 – East Lincoln Avenue and Rosalia Street Reconstruction
a. East Lincoln Avenue (North Main Street to Railroad Tracks)
b. Rosalia Street (Washington Avenue to Ceape Avenue)
6. Contract 22-07 Oregon Street Sanitary Interceptor Sewer Construction
a. Oregon Street (West Waukau Avenue to West 35th Avenue)
7. Contract 22-08 Parking Improvements
a. 300 East Parking Lot – 17 Washington Avenue
b. Quarry Park
c. Red Arrow Park
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8. Contract 22-13 – Witzel Avenue Sanitary Sewer
a. Witzel Avenue (North Oakwood Road to 1,200’ east of North Oakwood
Road)
9. Contract 22-14 – Pratt Trail Reconstruction
a. Pratt Trail (Merritt Avenue to Siewert Trail), located in Menominee Park
10. Contract 22-20 – Storm Sewer Laterals / Various Locations
B. The 2022 Capital Improvement Program is subject to change. Projects may be added
or deleted based on the needs of the City. Work listed throughout this Request for
Proposal (RFP) is not guaranteed. The City reserves the right to send out additional
RFPs.
2. Testing and Reporting
A. All tests and reports shall be in conformance with the latest ASTM Standards. The
selected consultant will be responsible for providing all necessary forms for labeling
of samples and documentation of test results. Test results shall include the location,
sample number, and be separated per City Contract number.
B. Soils and Aggregate Testing
Provide the necessary labor and equipment for onsite nuclear density testing of utility
trench backfill and associated laboratory material testing. Specifications will be based
on the current edition of the Standard Specifications for City of Oshkosh, Wisconsin (CITY
SPECIFICATIONS) and each Contract’s Special Conditions.
The testing firm shall obtain all test samples from construction sites throughout the
City and may be required to obtain samples from various source sites. At a minimum,
keep all lab samples until the end of each Contract. Nuclear density testing will be
performed on an as-needed basis, dependent on each contractor’s schedule. As a
reference, based on past years, a field density testing technician was required almost
daily throughout the construction season. It is the testing firm’s responsibility to
verify the Contractor’s schedule and to coordinate with the City’s
Inspectors/Engineers daily. This year’s season is anticipated to commence in March
and continue through December.
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Nuclear density tests shall be located by Project station, elevation, and utility trench
type. The density testing technician shall notify the City Inspector and appropriate
contractor of all failing tests. Failing areas shall be re-compacted and re-tested until
passing results are achieved. All tests shall be documented.
In addition to the utility trench density testing, assist the City Inspector on inspection
of backfilling operations per the current edition of the CITY SPECIFICATIONS. Work
with the Contractor by providing ideas and methods of improving compaction, if
necessary.
C. Reporting
1. Technician Daily Reports
a. Technicians will be required to document their activities through a daily
report. These reports shall include the date, a detailed summary of the
activities taking place for which they are inspecting/testing, the technician’s
arrival and departure times, and other pertinent information as is standard
with this type of reporting. There shall be a separate daily report for each City
Contract worked on that day. Daily reports can be hand written, but must be
legible. The technician shall document any observations, conversations,
suggestions, etc. during the construction site visit.
2. Material Test Reports
a. Material test results shall be emailed in pdf format to the City Project Engineer
within forty-eight (48) hours of notification of sample pick-up, unless the
lengths of the test dictate otherwise.
3. Summary Reports
a. Monthly testing summary reports during construction shall include a written
summary; any material test results from that time frame; an updated, typed
compaction results log; and the technician’s daily field reports. All reports
shall be signed by the appropriate signing authority of the selected firm and
the project manager. Separate reports shall be generated for each City
Contract, should multiple projects occur during the same time interval. The
monthly summary reports shall be submitted in conjunction with the
Contract’s respective invoice. A final report shall be prepared upon the
completion of each individual City Contract.
b. All reports shall be typed in a professional manner according to industry
standards and can be e-mailed to the City Project Engineer in pdf format.
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4. Periodic Updates
a. Additional e-mail correspondence or summary reports may be necessary
depending on certain situations. The testing firm’s project manager shall notify
the City Project Engineer of any issues throughout construction.
3. Proposal Cost Breakdown
A. The Proposal Cost Breakdown sheet shall be filled out and included in the Proposal.
B. A description of each item is as follows:
1. Roundtrip Charge – includes the technician’s travel time and mileage to and from
the City each day services are required. The Roundtrip Charge shall also include
any office time required by the technician prior to or after the day’s field activities.
If the technician will be working on various City Contracts during a single day,
the Consultant will only charge the City a single Roundtrip Charge for that day,
not one (1) Roundtrip Charge for each City Contract the technician worked on.
Consultant shall ensure that, in cases like that stated above, over the length of
the Agreement, the Roundtrip Charges will not be charged to only one (1) City
Contract, but distributed among the City Contracts.
2. Field Time – includes all necessary labor costs while testing in the City including
travel time between various projects. Travel time shall be split equally between
projects and documented in their respective daily report. The City Inspector shall
be notified upon arrival to and departure from the Contract Project site per visit.
The City Project Engineer shall be notified by phone upon arrival to and departure
from the City per trip. The field time hourly rate will apply, even if overtime is
worked by the technician. Some overtime is expected due to the tight construction
windows placed upon the contractors.
3. Equipment Rental – includes all necessary rental charges for equipment and
materials used in the performance of the testing requirements.
4. Vehicle Rental – includes vehicle rental charges while in the City of Oshkosh.
Mileage traveling between projects throughout the day will not be considered.
Vehicle costs incurred while traveling to and from the City shall be covered under
the Roundtrip Charge. Rental time shall match the technician’s onsite field time
for that day.
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