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HomeMy WebLinkAboutEvergreen Agreement-2026 Wetland Delin_11-20-25 I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 1 of 8 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 EVERGREEN CONSULTANTS, LLC, PO Box 680, Pulaski, WI 54142 (Consultant). 1. Project/Timeline. The City has requested that Evergreen Consultants, LLC provide wetland delineation and determination services on various projects to be completed no later than December 31, 2026. The Consultant shall provide wetland delineation and determination services upon request. A separate scope of work and budget will be developed for each Project Authorization. A sample Project Authorization form is attached to this Agreement. 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. Individual Project Authorization forms. 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. Any changes in terms and conditions during the term of the contract are not effective unless agreed to by both parties and incorporated into a written amendment, change order or similar document. The preceding rule of interpretation may be modified by the parties in particular circumstances as described elsewhere in this Agreement or in a signed amendment, change order, or other document. Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508 November21st I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 2 of 8 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: Alyssa Deckert, P.E., Civil Engineering Supervisor b. For the Consultant: Chad M. Fradette, EP Chemist 5. Scope of Services. 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, plans and specifications, and other information may be provided to City as deliverables for these services. 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. Any modification or reuse for projects other than the project that is the subject of this Agreement shall be at the City’s sole risk and without liability to Consultant. 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. 7. Term and Termination. a. Term. This Agreement shall commence upon the date indicated above and shall terminate on December, 31, 2026, unless terminated earlier by one (1) of the parties as provided below. The parties may extend this Agreement, upon written notice to this Agreement signed by both parties. Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508 I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 3 of 8 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 the individual Project Authorization forms and as otherwise described in this Agreement. Consultant shall perform the services under this Agreement with reasonable diligence and expediency consistent with the Standard of Care. 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 amount 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. 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). Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508 I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 4 of 8 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 in accordance with 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 and locality 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 warranty the City’s actual Project costs, financial aspects, or economic feasibility will not vary from Consultant's opinions, analyses, projections, or estimates. Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508 I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 5 of 8 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. Payment. a. Amount. The City shall pay to the Consultant for the performance of the tasks described in this Agreement a time and materials Contract amount not to exceed $20,000 for the work to be performed. Individual budgets for each project will be negotiated and specified on each Project Authorization form. b. Payment. The Consultant shall submit itemized monthly statements for services. Itemized monthly statements must include, at a minimum, the person performing the task(s), a brief description of the task(s) performed, the time spent on the task(s), the hourly rate, and the total amount billed for the task(s). Tasks do not have to be listed separately, but if the Consultant places the tasks in groups, they should do so in a manner that is reasonable and understandable to the City and the public. The City shall pay the Consultant within thirty (30) calendar days after receipt of such statement. c. Disputed Amounts. 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. 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. 17. 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. Subject to the provisions of Section 443.20 of the Wisconsin Statutes, the Consultant covenants and agrees to protect, hold harmless, and indemnify the City of Oshkosh against all actions, claims, and demands which may arise related to Consultant’s performance of services as provided under the terms of this Agreement. This indemnity is limited to losses proximately caused by the Consultant’s negligent Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508 I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 6 of 8 performance of design professional services and is limited to the proportion of loss caused by the negligent performance; and/or indemnification for Consultant’s acts or omissions that involve reckless, wanton, or intentional misconduct. 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 for losses as described within this Paragraph. Claims or demands are due within thirty (30) days of the date of the City’s written demand for indemnification. 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 resulting 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. 18. 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 for Professional Services. 19. 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. 20. 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. 21. 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. Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508 I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 7 of 8 22. 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 treat the records as either public or as confidential according to applicable law, and 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. 23. 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. 24. 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. 25. 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. 26. 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. Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508 I:\Engineering\2021 - 2030 Contracts\2026 CONTRACTS\Evergreen 2026 Wetland Delin\Evergreen Agreement-2026 Wetland Delin_11-20-25.docx Page 8 of 8 27. 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. EVERGREEN CONSULTANTS, LLC By: _____________________________ Chad M. Fradette EP Chemist CITY OF OSHKOSH By: _____________________________ Rebecca N. Grill, City Manager And: _____________________________ Darla Salinas, 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 Docusign Envelope ID: 5FA1C471-1873-4FC0-BD64-1EA856C8E508