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Home My WebLink AboutDonohue__Associates_Incs_WWTP_Tertiary_TrI:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 1 of 8 AGREEMENT This AGREEMENT, made on the 15th day of January, 2025, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and DONOHUE & ASSOCIATES, INC., 3311 Weeden Creek Road, Sheboygan, WI 53081, 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 WASTEWATER TREATMENT PLANT TERTIARY TREATMENT FILTRATION FACILITY DESIGN (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: Al Howe – Project 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: Jason Ellis – Utilities General Manager 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. Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 I:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 2 of 8 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. Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 I:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 3 of 8 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 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 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 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 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 I:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 4 of 8 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 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. CITY’s Request for Proposal dated October 16, 2024 and attached hereto 3. CONSULTANT’s Proposal dated November 11, 2024 and attached hereto Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 I:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 5 of 8 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 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 $976,585 (Nine Hundred Seventy Six Thousand Five Hundred Eighty Five Dollars).  Attached fee schedule shall be firm for the first year of this AGREEMENT. Annual adjustments are allowed to the fee schedule for each subsequent year of this AGREEMENT. The annually-adjusted fee schedule shall be submitted for review and approval by the CITY’s City Engineer or Director of Public Works prior to their application to an invoice submitted for payment. 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. Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 I:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 6 of 8 ARTICLE XIII. 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 XIV. 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 XV. INSURANCE The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance Requirements. ARTICLE XVI. 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. Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 I:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 7 of 8 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 XVII. 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 XVIII. 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. Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 I:\Wastewater\24-03 WWTP Tertiary Treatment\Administrative\Contract Information\Contractor- Consultant Agreements\Donohue\24-03 Donohue-WWTP Tertiary Treatment Filtration Fac Des Agreement_1-28-25.docx Page 8 of 8 ARTICLE XIX. 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: _____________________________ ____________________________ Michael W. Gerbitz, 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 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 56AE2519-B130-423D-B2F2-53C59BC79147 Docusign Envelope ID: 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