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AGREEMENT
This AGREEMENT, made on the � day of 2019, by and between the
CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and APPLIED
ECOLOGICAL SERVICES, PO Box 256, Brodhead, WI 53520, 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 ENDANGERED SPECIES OR THREATENED RESOURCES
ASSISTANCE FOR CALENDAR YEAR 2020 CAPITAL IMPROVEMENT PROJECTS.
ARTICLE I. PROJECT MANAGER
A. Assignment of Project Manager. The CONSULTANT shall assign the following
individual to manage the PROJECT described in this AGREEMENT:
Genesis M. Michel — Senior Ecologist
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:
Dan Gabrilska — Civil Engineering Supervisor
ARTICLE III. SCOPE OF WORK
The CONSULTANT shall provide the general services described below:
• On -call consulting to the CITY for compliance with Wisconsin Statute 23.27(3)(b):
o Certified Endangered Resource Reviews
• Endangered Resource Surveys (only as needed, if required by the project)
• Assistance relative to Wisconsin Department of Natural Resources permits that
require clearance per Wisconsin Statute 23.27(3)(b):
o Preparing Incidental Take (IT) Permit/Authorization applications
o Developing conservation plans
o Assisting the CITY to be sure that conditions of the IT Permit could be met by
the City of Oshkosh.
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This AGREEMENT is a General Services Master Agreement. Services needed will be
detailed further within individual task order Project Authorizations. A sample Project Authorization
form is attached to this AGREEMENT.
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. OPINIONS OF COST FINANCIAL CONSIDERATIONS, AND SCHEDULES
In providing opinions of cost, financial analyses, economic feasibility projections, and
schedules for the PROJECT, CONSULTANT has no control over cost or price of labor and materials;
unknown or latent conditions of existing equipment or structures that may affect operation or
maintenance costs; competitive bidding procedures and market conditions; time or quality of
performance by operating personnel or third parties; and other economic and operational factors
that may materially affect the ultimate project cost or schedule. Therefore, it is understood between
the parties the CONSULTANT makes no warranty the CITY's actual project costs, financial aspects,
economic feasibility, or schedules will not vary from CONSULTANT's opinions, analyses,
projections, or estimates.
ARTICLE VI. 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 VII. 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.
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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 VIII. 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 requested, manage the asbestos remediation
activities using a qualified subcontractor at an additional fee and contract terms to be negotiated.
If hazardous substances other than asbestos are suspected, CONSULTANT will, if requested,
conduct tests 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 IX. CITY'S INSURANCE
The CITY will maintain property insurance on all pre-existing physical facilities associated in
any way with the PROJECT.
The CITY will provide (or have the construction contractor(s) provide) a Builders Risk All
Risk insurance policy for the full replacement value of all project work including the value of all
onsite CITY -furnished equipment and/or materials associated with CONSULTANT's services. Upon
request, the CITY will provide CONSULTANT a copy of such policy.
ARTICLE X. 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 each Project Autliorization.
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.
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ARTICLE XI. 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. Individual Project Authorization Form
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 XII. PAYMENT
A. The Agreement Sum. The CITY shall pay to the CONSULTANT for the performance
of the AGREEMENT as set forth below, adjusted by any changes hereafter mutually agreed upon in
writing by the parties hereto:
• Time and Materials Not to Exceed $20,000 (Twenty Thousand Dollars).
Attached fee schedule(s) shall be firm for the duration of this AGREEMENT.
B. Method of Payment. The CONSULTANT shall submit itemized monthly statements
for services. All Project Autlorizatim forms shall have a unique task code assigned. All invoices
shall clearly identify invoice amount per task code. 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.
ARTICLE XIII. 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
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or result from any violation of any law or administrative regulation, and shall indemnify to 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 XIV. INSURANCE
The CONSULTANT agrees to abide by the attached City of Oshkosh Insuraiice Requirements.
ARTICLE XV. 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.
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 XVI. RE -USE OF PROTECT 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. The CITY agrees to indemnify CONSULTANT and CONSULTANT's
officers, employees, subcontractors, and affiliated corporations from all claims, damages, losses, and
costs, including, but not limited to, litigation expenses and attorney's fees arising out of or related to
the unauthorized re -use, change, or alteration of these project documents.
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ARTICLE XVII 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 contract price and schedule shall be
equitably adjusted.
ARTICLE XVIII. NO THIRD -PARTY BENEFICIARIES
This AGREEMENT gives no rights or benefits to anyone other than CITY and
CONSULTANT and has no third -party beneficiaries.
In the Presence of: CONSULTANT
2 o — By:
(Seal of Consu tant
if a Corporation.) (Specs Title)
w,.AAn,wv,nr,nr�Annnnnnnnr ..
A-1-DIANE C. JAB ,`
r:� F Notary Publio-hlio i .:... By:
Comm!_ion Fires d,
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(Witness)
(Witness)
(Specify Title)
CITY OF OSHKOSH
By: llgl_�Ave�l
Ma k A. Rohloff, City Manager
And: oy
Pamela R. Ubrig, City Cler
APPROVED: I hereby certify that the necessary provisions
have been made to pay the liability which
will accrue under this AGREEMENT.
4orney
,_ 4�:�Z
City Comptroller
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PROJECT AUTHORIZATION NUMBER
("Task Order")
Owner: City of Oshkosh Department Public Works
Authorized Office: 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 54903-1130
Owner -Authorized Representative: Dan Gabrilska, Civil Engineering Supervisor
Contract: Endangered Species or Threatened Resources Assistance for 2020 Capital Improvement
Projects
City of Oshkosh Contract Number:
Applied Ecological Services Project Number:
The authorizing office requires performance of the following described Services:
Form of Compensation:
® Time and Materials Not to Exceed:
Additional Terms and Conditions: None
Authorized Services shall be performed in accordance with the terms and provisions of the agreement
between Applied Ecological Services and the City of Oshkosh, dated , together with
this Project Authorization and any Exhibits attached hereto. This Project Authorization shall be
effective only upon date of signature of an authorized representative of the City of Oshkosh.
Applied Ecological Services CITY OF OSHKOSH
Signature:
Name:
Title:
Date:
Signature:
Name: Dan Gabrilska
Title: Civil Engineering Supervisor
Date:
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