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City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 https://www.oshkoshwi.gov
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is entered into on the _____ day of ________________, 2025, by and between
the CITY OF OSHKOSH, 215 Church Avenue, Oshkosh, Wisconsin 54901 (City), and DIXON
ENGINEERING, INC., 4811 South 76th Street, Suite 109, Greenfield, Wisconsin 53220
(Consultant).
1. Project/Timeline. The City requested a proposal from the Consultant for maintenance
inspections (dry) on the Washburn Water Tower (#49-71-06-01), Southwest Water Tower
(#49-71-06-03), and Marion Road Water Tower (#49-71-06-05) to be completed no later
than October 1, 2025)
2. Consideration. The City and Consultant agree to the terms and conditions of this
Agreement in return for the monetary and other consideration described herein. The
parties acknowledge the receipt of the consideration and further acknowledge that the
consideration given and received is of sufficient value to induce them to enter into this
Agreement.
3. Component Parts of the Parties’ Agreement. For convenience, the parties agree to compile
various separate documents related to this Project and incorporate them into this
Agreement. Therefore, the terms and conditions of this Agreement may be in multiple
places, and consist of the component parts described below. The component parts may
or may not be physically attached to this Agreement. Regardless of whether or not they
are attached, they are considered to be fully incorporated as part of this Agreement. The
component parts of this Agreement are:
a. The terms of this Professional Services Agreement, including any other documents or
terms referenced and/or attached, but not including component parts identified
below.
b. Consultant’s Proposal dated April 22, 2025, which is attached hereto.
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c. The terms and conditions are listed above in order of importance. If terms and
conditions in various component parts are conflicting, then the terms and conditions
in the component part first listed will control over the conflicting term and condition
in the later component part. The preceding rule of interpretation may be modified by
the parties in particular circumstances where described elsewhere in this Agreement.
4. Representatives. The parties assign the following persons as the primary contacts for
their respective interests related to managing and carrying out the tasks of this
Agreement. These persons may be changed upon written notice from the party making
the change.
a. For the City: Brad Rokus, Water Filtration Plant Manager
b. For the Consultant: Kayla Mulcahy, Project Manager
5. Scope of Work. Consultant shall provide the services described in the component parts
identified above. Any changes must be placed in writing and signed by both parties.
Changes in scope may include a need to adjust the contract amount either up or down.
6. Records and Deliverables. Reports, drawings, specifications, computer files, field data,
notes, and other documents and instruments prepared by the Consultant may be
provided to City as deliverables for this Project.
a. Deliverables prepared under this Agreement shall become the property of the City
upon completion of the work and payment in full of all monies due to the
Consultant.
b. However, Consultant may continue to use the deliverables and information
therein for descriptions or discussions of this Project in other contexts, and may
use some or all of the information in the deliverables in or for other projects. Any
such subsequent use by Consultant shall be without royalty or other fees, or
obligations, to City.
c. Consultant’s deliverables are intended only for use related to the Project subject to
the Agreement, and are not subject to any warranty or guaranty if subsequently
modified or reused for a later project.
d. Documents, including deliverables, created by Consultant may subsequently be
viewed by, or provided to, a third person as a public record not subject to redaction
or withholding by applicable law. In such instances, neither party retains control
over subsequent uses of these documents and therefore neither party shall
consider the other responsible for such subsequent use.
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7. Term and Termination.
a. Term. This Agreement shall commence upon the date indicated above and shall
terminate on October 1, 2025, unless terminated earlier by one (1) of the parties as
provided below. The City may extend this Agreement, upon written notice to
Consultant.
b. Termination.
i. For Cause. If either party shall fail to fulfill in timely and proper manner any of
the material obligations under this Agreement, the other party may, at its
discretion, terminate this Agreement by written notice. In this event, the
Consultant shall be entitled to compensation to the date of delivery of the Notice.
ii. For Convenience. The City may terminate this Agreement at any time by giving
written notice to the Consultant no later than 30 calendar days before the
termination date. In this event, the Consultant shall be entitled to compensation
to the termination date.
8. 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
Consultant’s Proposal.
Consultant shall perform the services under this Agreement with reasonable diligence
and expediency consistent with sound professional practices. The City agrees that 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, public health emergencies, or failure of
performance by the City. 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.
9. Suspension, Delay, or Interruption of Work. City may suspend, delay, or interrupt the
Services of Consultant for the convenience of City. In such event, Consultant's contract
price and schedule shall be equitably adjusted.
10. Assignment. Neither party to this Agreement shall transfer, sublet or assign any rights
under or interest in this Agreement (including, but not limited to, monies that are due or
monies that may be due) without the prior written consent of the other party.
11. Independent Contractor. Consultant is an independent contractor and is not an employee
of the City.
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12. Cooperation in Litigation and Audits. Consultant shall fully and completely cooperate
with the City, the City’s insurer, the City’s attorneys, the City’s Auditors or other
representative of the City (collectively, the “City” for purposes of this Article).
a. Cooperation is expected in connection with any internal or governmental
investigation or administrative, regulatory, arbitral or judicial proceeding (collectively
“Litigation”) or internal or governmental Audit, with respect to matters relating to
this Agreement.
b. Excluded from this duty of cooperation is a third party proceeding in which
Consultant is a named party and Consultant and the City have not entered into a
mutually acceptable joint defense agreement.
c. Examples of expected cooperation may include, but shall not be limited to, responding
to requests for documents and/or other records, and making Consultant’s employees
available to the City (or their respective insurers, attorneys or auditors) upon
reasonable notice for: (i) interviews, factual investigations, and providing declarations
or affidavits that provide truthful information in connection with any Litigation or
Audit; (ii) appearing at the request of the City to give testimony without requiring
service of a subpoena or other legal process; (iii) volunteering to the City all pertinent
information related to any Litigation or Audit; and (iv) providing information and
legal representations to auditors in a form and within a timeframe requested.
d. City shall reimburse Consultant for reasonable direct expenses incurred in connection
with providing documents and records required under this Paragraph and may
require, at the City’s sole discretion, such expenses to be documented by receipts or
other appropriate documentation. Reasonable direct expenses include costs, such as
copying, postage and similar costs; but do not include wages, salaries, benefits and
other employee compensation. Consultant shall not be entitled to additional
compensation for employee services provided under this Paragraph.
13. 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.
14. Opinions of Cost and Financial Considerations. In providing opinions of cost, financial
analyses, or economic feasibility projections for the Project, the City recognizes that
Consultant has no direct control over cost or price of labor and materials; market
conditions; and other economic factors that may materially affect the ultimate Project cost.
Therefore, it is understood between the parties the Consultant provides its opinion and
analysis in accordance with the Standard of Care established herein but makes no
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warranty the City’s actual Project costs, financial aspects, or economic feasibility will not
vary from Consultant's opinions, analyses, projections, or estimates.
15. 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. Consultant may reasonably rely upon the
accuracy, timeliness, and completeness of the information provided by City. 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.
16. 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.
17. Payment.
a. Amount. The City shall pay to the Consultant for the performance of the tasks
described in this Agreement a lump sum amount not to exceed $13,500 for the work
to be performed.
b. Fee Schedule. Attached fee schedule shall be firm for the duration of this Agreement.
c. 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 disputed amount and shall provide to Consultant a statement as to the reason(s)
for withholding payment. Amounts invoiced and not disputed shall be paid
according to the regular schedule agreed upon.
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d. 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.
e. 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.
f. 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.
18. Hold Harmless. It is the intention of the parties that each party shall be solely responsible
for its own actions, inactions, and activities, including the actions and activities of its own
officers, employees and agents while acting within the scope of their employment.
a. The Consultant covenants and agrees to protect and hold the City of Oshkosh
harmless against all actions, claims, and demands which may arise related to this
Project. Consultant’s obligations will be to the proportionate extent caused by or
resulting from the intentional or negligent acts of the Consultant, its agents or assigns,
its employees, or any Sub-Consultant it has retained to assist with this issue. The
relevant acts are those which are related to the performance of this Agreement or
which are caused by or result from any violation of any law or administrative
regulation. Consultant shall indemnify or refund to the City all sums expended
including court costs, attorney fees, and punitive damages which the City may be
obliged or adjudged to pay. Claims or demands are due within thirty (30) days of the
date of 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.
b. Subject to any and all immunities and limitations contained in Wisconsin Statutes,
Sec. 893.80, and any applicable part of the Wisconsin Statutes, the City agrees to hold
Consultant harmless from liability, including claims, demands, losses, costs, damages,
and expenses of every kind and description (including death), to the proportionate
extent caused by or result from the intentional or negligent acts of the City, its agents
or assigns, its employees, or its sub-consultants related to the performance of this
Agreement or which may be caused or result from any violation of any law or
administrative regulation, 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.
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19. Insurance. The Consultant agrees to procure and retain in good standing policies which
in all respects comply with the attached City of Oshkosh Insurance Requirements.
20. Whole Agreement / Amendment. This document and any attachments identified or
documents referenced contain all terms and conditions of the Agreement and any
additions, subtractions, or alterations to the resulting Agreement shall be invalid unless
made in writing, signed by both parties and incorporated as an amendment to this
Agreement.
21. No Third-Party Beneficiaries. This Agreement gives no rights, benefits, or obligations to
anyone other than City and Consultant and therefore there are no third-party beneficiaries
of this Agreement.
22. Non-Discrimination. The Consultant will not discriminate in its actions related to this
Agreement on the basis of race, color, creed, age, and gender, or other protected classes
as otherwise prohibited by law. A breach of this term may be regarded as a material
breach of this Agreement. Consultant agrees that all hiring or employment related to this
Agreement will not involve any discrimination against any employee or applicant for
employment related to race, color, religion, sex, sexual orientation, gender identity,
national origin, or other protected class as otherwise prohibited by law.
23. Public Records. The City is a governmental entity that is required to comply with
Wisconsin public records laws. Consultant acknowledges that Wisconsin Public Records
laws assume records are available for public viewing unless there are specific other laws
that prevent or limit release, and further acknowledges that documents provided to a
public entity such as the City are treated by the law differently than documents provided
to a private entity. Consultant also acknowledges that it is a contractor of the City and
therefore pursuant to Wisconsin law may be in possession of public records which are not
otherwise also in the possession of the City. Consultant agrees to cooperate with the City
and any public records requests. Notwithstanding any other term of this Agreement,
including component parts, the City will always be allowed to use documents in
conformity with all applicable laws, including public records laws. Any action the City
takes that is consistent with any applicable law shall not be considered a breach or
violation of this Agreement, regardless if this Agreement or any attachment or referenced
document includes terms or conditions that conflict with applicable law that the City is
following. Consultant may elect to challenge a public records decision by City, but must
do so at its own risk and own cost, regardless of the outcome of such challenge.
24. Confidentiality. City as a public body is required by law to maintain certain levels of
transparency of its activities, including those activities carried out through consultants.
Therefore, only those documents related to the Project that benefit from explicit statutory
protections may be redacted or withheld from release. Consultant’s designation of
documents or information as “confidential,” “proprietary,” or similar designation will not
prevent its public viewing or use unless it is otherwise protected by law. Similarly,
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references to lawful protections of information and documents through intellectual
property rights, trade secrets, or similar designations, will be protected only to the extent
that they qualify for statutory or common law protections. As a general rule, in light of
the statutory definition and required chain of custody protocols, it is unlikely that
information disclosed to City would be considered a valid trade secret. Consultant may
elect to challenge a decision in this regard by the City, but will do so at its own risk, and
its own cost, regardless of the outcome of such challenge.
25. Agreement Not to Be Construed Against Any Party. This Agreement is the product of
negotiation between all parties and therefore no term, covenant, or provision herein or
the failure to include a term, covenant, or provision shall be construed against any party
hereto solely on the basis that one party or the other drafted this Agreement or any term,
covenant, or condition contained herein.
26. No Waiver. Failure of either party to insist upon the strict performance of terms and
provisions of this Agreement, or any of them, shall not constitute or be construed as a
waiver or relinquishment of that party’s right to thereafter enforce such term or provision,
and that term of the provisions shall continue in full force and effect.
27. Severability. If any term, covenant, condition, or provision of this Agreement shall be
adjudged invalid or unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected thereby and the remainder of the Agreement shall be
valid and enforceable to the fullest extent permitted by law.
28. Choice of Law, Venue, and Dispute Resolution. The laws of the State of Wisconsin shall
govern the interpretation and construction of this Agreement. Winnebago County shall
be the venue for all disputes arising under this Agreement. The parties agree that it may
be beneficial to undertake an initial mutually agreeable mediation to resolve a dispute.
However, unless otherwise agreed to by the parties, all disputes shall be resolved by the
judiciary. Under no circumstance shall any dispute be subject to arbitration.
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29. Signatures. By placing their signatures below, each individual affirms that the entity they
represent is authorized to enter into this Agreement, and further affirm that they are
authorized by the entity they are representing to bind their respective parties to the terms
and conditions of this Agreement.
CONSULTANT
Dixon Engineering, Inc.
By: _____________________________
Kayla Mulcahy
Project Manager
CITY OF OSHKOSH
By: _____________________________
Rebecca N. Grill, City Manager
And: _____________________________
Diane M. Bartlett, City Clerk
Approved as to form: I hereby certify that the necessary provisions
have been made to pay the liability which
will accrue under this Agreement.
_____________________________
Lynn A. Lorenson, City Attorney
_____________________________
Julie Calmes, Finance Director
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