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AGREEMENT
This AGREEMENT, made on the 11th day of December, 2024, by and between the
CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and ROBERT
E. LEE & ASSOCIATES, INC., 1250 Centennial Centre Boulevard, Hobart, WI 54155,
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 2025 ENVIRONMENTAL MONITORING
SERVICES – KNAPP STREET QUARRIES LANDFILL (LICENSE 4624), KIENAST-
PAULUS QUARRIES LANDFILLE (LICENSE 4634), AND TIMMERMAN FARM
LANDFILL (LICENSE 4203) (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:
Cody Applekamp, P.G. – Geologist
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:
James Rabe, P.E., CPESC – Director of Public Works
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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. 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. 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 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.
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. 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 IX. 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
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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.
The CITY and the CONSULTANT acknowledge that their respective experiences
over the previous years have included disruptions and/or interruptions of their business
operations resulting from the existence of a pandemic. These previous experiences have
made the CITY and CONSULTANT more aware of the possibility and implications of
future pandemics, and has resulted in contingencies and procedures to address known
pandemic implications, while understanding that each pandemic may be different.
Therefore, while CONSULTANT and CITY have made reasonable efforts to incorporate
contingencies and procedures into their PROJECT plans any known or reasonably-
anticipated impacts on the PROJECT resulting from a pandemic, neither CONSULTANT
nor CITY have accounted for, and are not responsible for, unknown future disruptions
and/or changes of circumstances related to their business to the extent caused by a
commonly-recognized pandemic. These disruptions and/or interruptions, 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 the event a
pandemic is actually, or is anticipated to, disrupt or interrupt the CONSULTANT’s or
CITY’s obligations related to the PROJECT, the other party shall be promptly notified in
writing of the problem, along with a description of how the pandemic is disrupting
and/or interrupting performance of PROJECT tasks. The parties agree to work in good
faith to equitably address any unexpected impacts therefrom.
ARTICLE X. 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 Proposal dated December 3, 2024 and attached hereto
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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 XI. 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 $109,749 (One Hundred Nine Thousand
Seven Hundred Forty Nine 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 XII. 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 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, their
agents or assigns, their employees, or their 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 XIV. INSURANCE
The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance
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.
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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 XVI. 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 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 agreement price and schedule
shall be equitably adjusted.
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ARTICLE XVIII. 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: _____________________________
____________________________ Jared Schmidt, P.E.
(Seal of CONSULTANT Vice President
if a Corporation)
By: _____________________________
_____________________________
(Specify Title)
CITY OF OSHKOSH
_____________________________ By: _____________________________
(Witness) John Fitzpatrick, Interim City Manager
_____________________________ And: _____________________________
(Witness) Diane M. Bartlett, 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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