HomeMy WebLinkAbout15. 12-184
APRIL 24, 2012 12-184 RESOLUTION
(CARRIED___7-0_____LOST________LAID OVER________WITHDRAWN________)
PURPOSE: APPROVE AGREEMENT WITH WISCONSIN DEPARTMENT OF
MILITARY AFFAIRS, DIVISION OF EMERGENCY MANAGEMENT
FOR STATEWIDE STRUCTURAL COLLAPSE TEAM MEMBERS
INITIATED BY: FIRE DEPARTMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached
Agreement with the Wisconsin Department of Military Affairs, Division of Emergency
Management for Statewide Structural Collapse Team Members, is hereby approved and
the proper City officials are hereby authorized to execute and deliver the agreement in
substantially the same form as attached hereto, any changes in the execution copy being
deemed approved by their respective signatures, and said City officials are authorized and
directed to take those steps necessary to implement the terms and conditions of the
Agreement.
101 Court Street
Oshkosh,Wisconsin
54901
City of Oshkosh Fire Department
920/236-5240 Fire Chief,Timothy R. Franz
TO: Honorable Mayor and Members of the Common Council
OIHKOIH FROM: Tim Franz, Fire Chief
ON THE WATER
DATE: April 17, 2012
RE: Request to Enter Into Agreement to Provide Personnel to the State
of Wisconsin Structural Collapse Team
BACKGROUND
The Office of Emergency Management has working been working with the fire service in
the State for the past few years training personnel to respond to incidents involving
structural collapses from incidents as tornadoes, explosions and terrorist incidents. The
State has developed a model for a statewide team made up of members from career fire
departments throughout the state. This agreement outlines the responsibilities and
provisions of our participation in this State sponsored team.
ANALYSIS
This agreement allows for eight of our personnel to receive training and be available to
respond as a member of this team. The State of Wisconsin provides the direction,
equipment and training for this team and we through this agreement supply our
personnel. The State assumes all liability in operating and Workmen's compensation for
our personnel and reimburses the City $45.00 per hour for their service. Funding for
training is directly from the State, in the event of a response,the State would pursue
disaster declaration funds, a responsible party or State funds for reimbursement. The
trained personnel would respond on or off duty and we retain the right to refuse their
response if it negatively impacts the emergency response capability of the City at the
time.
FISCAL IMPACT
The proposed rate of reimbursement at $45.00 per hour will cover the City's cost of our
personnel when they are on overtime. The State will cover all training cost and they do
this do this as a reimbursement after the fact and have been historically prompt. There
could be a delay of months to receive reimbursement in the event of a response and a
very low possibility of no reimbursement if there is not a disaster declaration, responsible
party declared or State funds allocated. There is no other cost or liabilities for the City
with this program.
RECCOMENDATION
I recommend we become a party to this agreement and supply personnel to the State
Structural Collapse Team. In the event of large scale disasters we can provide and
receive the appropriate resources to adequately respond. This is a resource that no single
city or fire department can develop and sustain on their own, but together working
through the State we can provide this valuable resource. In addition to this we will have
personnel receive this special training at no cost to us that they can share with the rest of
our department and enhance the level of service we are providing locally. We will be
joining our neighbors in Appleton and Neenah—Menasha in supplying personnel to this
team. Please direct any question regarding this matter to the Fire Chief
Respectfully Sub • ted, Approved:
Timothy Franz City Manager
Fire Chief
via P.44
ASCONSj
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CONTRACT FOR
STATEWIDE STRUCTURAL COLLAPSE
TEAM MEMBERS
APRIL 1, 2011 THROUGH DECEMBER 31, 2012
Between
STATE OF WISCONSIN
DEPARTMENT OF MILITARY AFFAIRS
DIVISION OF EMERGENCY MANAGEMENT
And
CITY OF OSHKOSH, WISCONSIN
DATE: June a., 2011
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CONTRACT FOR STATEWIDE STRUCTURAL COLLAPSE
TEAM MEMBERS
1.0 General Contract Information
1.1 Parties: This contract is between the State of Wisconsin, Department of Military Affairs,
Division of Emergency Management (hereinafter "Division") and the Oshkosh Fire
Department, City of Oshkosh, Wisconsin (hereinafter "Contractor") for the provision of
Statewide Structural Collapse Team members as described herein and authorized under
2009 Wisconsin Act 43, as codified in §323.72 of the Wisconsin Statutes and as further
amended.
1.2 Recitals: WHEREAS, in order to protect life and property against the dangers of
emergencies involving catastrophic structural collapse, the Division may assign and make
available for use in any county, city, or district, a Statewide Structural Collapse Team.
WHEREAS, the Division desires to enter into this Agreement with Contractor for the
provision of team members to serve on one of three statewide platoons comprising the
Statewide Structural Collapse Team, and Contractor desires to enter into this Agreement.
HOWEVER, the parties expressly recognize and attest by this Agreement that neither
party intends to create or to assume fiduciary responsibilities to provide for the
containment, cleanup, repair, restoration and investigation of the environment (air, land
and water) in a structural collapse incident involving a hazardous substance, which is the
responsibility and shall remain the sole obligation of the Wisconsin Department of Natural
Resources under§§292.11 and 323.60(4), Wis. Stats.
1.3 Contract Term: This Agreement shall continue for 1 year and 9 months commencing
April 1, 2011 through December31, 2012.
2.0 Definitions
2.1 Definitions: The following definitions are used throughout this Agreement:
Agreement means this Contract, together with the Exhibits. Exhibits include the following:
Exhibit A Standard Terms and Conditions
Exhibit B Training Costs
Exhibit C Certificate of Protection in Lieu of an Insurance Policy (as
applicable)
State means the State of Wisconsin.
Department means the State of Wisconsin, Department of Military Affairs.
Division means the Division of Emergency Management.
Contractor means the City of Oshkosh Fire Department, City of Oshkosh, Wisconsin by
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which Statewide Structural Collapse Team members will be provided under this
Agreement. Under §323.721), Stats., the Division may only contract with local agencies
as defined in §323.70(1)(b), Stats.
Local Agency has the meaning under§323.70(1)(b), Stats.
OJA means the State of Wisconsin, Office of Justice Assistance.
Responsible Party means the person(s), as defined in §323.72(3)(a) and (b), Stats., who
possessed or controlled a structure that was involved in the structural collapse or the
person who caused the structural collapse which caused the emergency to which.
Contractor has responded.
Regional Emergency All-Climate Training Center (REACT) is a training facility owned by
the State of Wisconsin, Department of Military Affairs and operated by the Division of
Emergency Management.
Structural collapse means an incident involving all types of construction with emergency
response activities that include expertise in 1) evaluating existing and potential
conditions at structural collapse incidents; 2) recognizing unique collapse or failure
hazards; 3) conducting search operations intended to locate victims trapped inside and
beneath collapse debris; 4) accessing victims trapped inside and beneath collapse
debris; 5) performing extrication operations involving packaging, treating, and removing
victims trapped within and beneath collapse debris; and 6) stabilizing the structure.
Structural Collapse Team Member means an individual provided by Contractor serving as
a team member on one of three platoons comprising the Statewide Structural Collapse
Team to provide statewide structural collapse emergency response that meets the
standards under the National Fire Protection Association standards NFPA 1001 and 1670,
as further amended.
Statewide Structural Collapse Team Platoon means a component of the Statewide
Structural Collapse Team made up of team members provided by the Contractor and/or
designated employees of the Contractor who are expected to respond to, control, and/or
stabilize the actual or potential structural collapse.
WI Taskforce 1 means the name of the Statewide Structural Collapse Team.
3.0 Statement of Work
3.1 Services to be provided by Contractor: During the term of this Agreement, the
Contractor agrees to provide statewide structural collapse team members for the three
statewide platoons comprising the Statewide Structural Collapse Team (also known as
WI Taskforce 1).
Contractor's response activities under this Agreement shall be limited to emergency
operations, reporting and documentation of activities arising from catastrophic structural
collapse incidents which threaten life, property and/or the environment. Contractor shall
not provide under this Agreement any services with respect to the sampling, testing,
analysis, treatment, removal, remediation, recovery, packaging, monitoring, transportation,
movement of hazardous materials, cleanup, storage and disposal of hazardous materials
except as these may be reasonably necessary and incidental to preventing a release or
threat of release of a hazardous material or in stabilizing the emergency response
incident, as determined by the Contractor.
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WI Taskforce 1 shall establish safety perimeters at or near sites and vessels. WI
Taskforce 1 shall not be required to locate underground utilities, insure appropriate traffic
control services, conduct hydrological investigations and analysis, or provide testing,
removal and disposal of underground storage tanks at or near the emergency response
incident to which the Contractor is dispatched.
The Division and Contractor make no representations to third parties with regard to the.
ultimate outcome of the structural collapse services to be provided, but Contractor and
Division shall respond to the best of its abilities, subject to the terms of this Agreement.
3.2 Performance Conditions: Contractor acknowledges that it shall demonstrate to the
Division that its employees designated as structural collapse teams members, structural
collapse equipment, and associated vehicles meet or exceed applicable NFPA training
standards and any regulatory requirements.
3.3 Personnel: Contractor shall provide eight (8) trained, medically monitored, and
competent personnel as identified by Contractor and designated by the Division as is
reasonably necessary to operate within the safety levels of a statewide structural collapse
team. Contractor understands and agrees that identified team members will meet
applicable training standards and certifications at the time they are identified by Contractor
to serve as members of the Statewide Structural Collapse Team.
3.4 Vehicles and Equipment: If the Division requests vehicles and equipment from the
Contractor, it shall limit its activities to that which can be safely accomplished within the
technical limitations of the available vehicles and equipment. Contractor may retain
structural collapse equipment and vehicles provided by grant funding through OJA for
Contractor's local use, however, Contractor agrees that in the event of multiple responses,
said equipment which is already not committed to a prior response shall be used on a
priority basis to respond to a structural collapse incident.
3.5 Vehicle and Equipment Use Limitations: This Agreement in no way limits the
Contractor from responding with structural collapse vehicles, equipment and supplies
under local authority, mutual-aid agreements, or other contracts under local authority.
3.6 Response Procedures and Limitations: Contractor recognizes that its obligations under
this Agreement are paramount to the State of Wisconsin. Contractor agrees that if local
fire response obligations in Contractor's own jurisdiction create limits or unavailable
resources, Contractor will seek aid from local jurisdictions to assist in local fire response
obligations in Contractor's own jurisdiction.
Contractor's obligation to provide services hereunder shall arise, with respect to specific
response actions, upon receipt of an emergency response request pursuant to Standard
Operating Guidelines provided in Subsection 3.8 herein.
3.7 Right of Refusal: If, on occasion, a response under this Agreement would temporarily
place a verifiable undue burden on the Contractor because Contractor's resources are
otherwise inadequate or unavailable and mutual aid is unavailable, then if notice has been
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provided to the Division, the Contractor may decline a request for a Statewide Structural
Collapse Team emergency response.
3.8 Standard Operating Guidelines: Contractor and Division agree that the Statewide
Structural Collapse team operations wil! be conducted in accordance with Standard
Operating Guidelines and "Call-Out Procedure" that will be mutually approved by the
parties to this Agreement. Contractor agrees and understands that it shall not self deploy
structural collapse teams members to a catastrophic structural collapse. The Division
shall notify Contractor of the need for structural collapse team member deployment and
the need for mustering a platoon of WI Taskforce 1 at the REACT.
4.0 Training Costs and Reimbursement for Emergency Response
There are two types of Contractor costs under this Agreement: (1) Required Training
Costs, and (2) Team Response Costs. Each of these costs are discussed more fully
below.
4.1 Required Training Costs: Under§323.72(1), Stats., team personnel shall be trained and
certified to the standards under the National Fire Protection Association standards NFPA
1001 and 1670, as further amended. As a condition of this Agreement, Contractor agrees
• that all team personnel shall attend structural collapse training and.refresher training at the
Regional Emergency All-Climate Training Center (REACT), which is owned and operated
by the Division or at a location pre-approved in writing by the Division. The structural
collapse and refresher training shall be a minimum of thirty-two (32) hours per team
member per annum. Additional specialty training is available at REACT. All team
personnel attending training at REACT shall be in a non-duty status with Contractor. To
facilitate planning for required training, the REACT training schedule shall be posted at
minimum of twelve months in advance, with the exception of the first contract period. Any
team personnel who have not attended or completed the required training will not be
allowed to respond under the scope of this Agreement. Team personnel shall also keep
current any state required certifications: The Division shall maintain all structural collapse
and refresher training records on each team member for training received at REACT.
4.2 Team Response Costs and Reimbursement: Under §323.72(2), Stats., the Division
shall reimburse the Statewide Structural Collapse Team for costs incurred by the team
in responding to an emergency involving a structural collapse incident if the team
determines that a structural collapse emergency requiring a response existed.
Reimbursement is limited to amounts collected from the responsible person(s) as
defined in §323.72(3) (a) and (b), Stats. Reimbursement under this subsection is
available only if the Statewide Structural Collapse Team has identified the person who is
required to reimburse the Division and provided that information to the Division. Further,
Contractor shall comply with all Division-approved reimbursement procedures and/or duly
enacted Administrative Rule(s).
- A person shall reimburse the Division for costs incurred by the Statewide Structural
Collapse Team in responding to an emergency if the team determines that an
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emergency requiring the team's response existed and that one of the following
conditions applies:
(1) The person possessed or controlled a structure that was involved in the
structural collapse.
(2) The person caused the structural collapse.
In the event a responsible person has been identified, Contractor shall be reimbursed for
reasonable and necessary Team member response costs incurred in responding to a
catastrophic structural collapse incident under this Agreement. Such Team response costs
may include, but are not limited to:
(1) Reimbursement for use of Vehicle(s) and Apparatus: Contractor shall be
reimbursed for the approved use of its vehicles and equipment at FEMA-
established rates.
(2) Personnel Expenses: Contractor's team response personnel expenses which
are approved and authorized under this Agreement are reimbursable at $45.00 per
hour per deployed team member. During an emergency deployment, this shall be
calculated as portal to portal.
(3) Backfill expenses: Contractor's personnel backfill expenses to cover deployed
team members are reimbursable at the Contractor's actual cost.
(4) Emergency Expenses: Contractor's necessary and reasonable emergency
expenses related to services rendered under this Agreement are reimbursable. All
• such expenses must be based on actual expenditures and fully documented by the
Contractor. The Division reserves the right to deny any reimbursement of
unjustifiable Contractor expenditures.
4.3 Maximum Contract Payment for Training Costs: This Agreement shall have a
maximum contract payment of $11,520.00 per annum for training costs as described in
"Exhibit B" to this Agreement. This calculation is based upon $45 per hour for the
minimum of thirty-two (32) hours per team member per annum. Payment for training costs
will be made to Contractor on a quarterly basis. The payment will be determined by the
actual hours of Division-approved training received by Contractor's team members during
that quarter multiplied by $45 per hour. In addition to the maximum contract payment, the
Division will pay for enhanced training for specialty job assignments for team members as
determined and approved in advance by the Division. The maximum contract payment for
training does not, however, include Contractor's team response costs as specified in
Subsection 4.2 of this Agreement. Contractor's personnel backfill expenses to cover team
members in training status are not reimbursable.
No additional Contractor payment or reimbursement shall be paid or any additional
demands placed on Contractor under this Agreement unless otherwise specifically agreed
to by the Division and the Contractor, and upon written amendment to this Agreement.
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The Division's reimbursement(s) shall be full payment for services rendered and for all
labor, materials, supplies, equipment, and incidentals necessary to complete the services
authorized under this Agreement. Acceptance of payment by the Contractor shall operate
as a release of the Division of all claims by Contractor for reimbursement of team
response costs except where partial payment has been made due to limitations as set
forth above.
4.4 Billing System for Division Reimbursement of Team Response Costs: Contractor will
provide an invoice for its team member response costs to the Division within ten (10)
working days of the response. The Division will not bill responsible person(s) unless it
receives an invoice from the Contractor. Contractor's claim for reimbursement shall
contain such documentation as is necessary to support the Division's cost-recovery
operations and financial audits. The Division agrees to bill responsible person(s) for the
Statewide Structural Collapse Team response costs. Team response costs include such
items as vehicle and equipment use, expendables and personnel costs. In addition,
Division administrative costs may be billed as part of the emergency costs. Further,
Contractor shall comply with all Division-approved procedures and/or duly enacted
Administrative Rule(s).
The Division shall bill identified responsible person(s) within sixty (60) days of receipt of
Contractor's invoice. Contractor's team response costs shall be collected by the Division
from the responsible person(s) before any payment is made to the Contractor. Contractor
agrees to cooperate with the Division as is reasonable and necessary in order to allow the
Division to bill third parties and pursue cost recovery actions.
4.5 Approval: The Division shall notify Contractor of the need for structural collapse team
member deployment and the need for mustering a platoon of WI Taskforce 1 at the
REACT. Contractor agrees and understands that it shall not self deploy structural collapse
teams members to a catastrophic structural collapse. Contractor may deploy structural
collapse team members directly to an ongoing catastrophic structural collapse event at the
request of the Division. Contractor agrees to make reasonable and good faith efforts to
minimize Responsible Party and/or Division expenses.
4.6 Retirement System Status and Tax Payments: Contractor and its employees are not
entitled under this Agreement to Division contribution for any Public Employees Retirement
Withholding System benefit(s). Contractor shall be responsible for payment/withholding of
any applicable federal, Social Security and State taxes.
4.7 Worker's Compensation: A member of the Statewide Structural Collapse Team who is
acting under the scope of this Agreement is an employee of the State for purposes of
Worker's Compensation under§323.70(4) of the Wisconsin Statutes.
4.8 Payment of Contractor's Obligations: Contractor agrees to make payment promptly, as
just, due, and payable to all persons furnishing services, equipment or supplies to
Contractor. If Contractor fails, neglects or refuses to pay any such claims as they become
due and for which the Division may be held liable, the proper officer(s) representing the
Division, after ascertaining that the claims are just, due, and payable, may, but shall not be
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required to, pay the claim and charge the amount of the payment against funds due
Contractor under this Agreement. The payment of claims in this manner shall not relieve
Contractor of any duty with respect to any unpaid claims.
4.9 Dim! Payment: Contractor shall.not be compensated for work performed under this
Agreement by any state agency or person(s) responsible for causing a catastrophic
structural collapse emergency except as approved and authorized under this Agreement.
5.0 Liability and Indemnity
5.1 Scope: During operations authorized by this Agreement, Contractor and members of the
Statewide Structural Collapse Team shall be agents of the State of Wisconsin for
purposes of §895.46(1), Stats. For the purposes of this Article, operations means
activities, including travel, directly related to a particular emergency response involving a
structural collapse incident by the Statewide Structural Collapse Team. Operations also
include advanced training activities provided under this Agreement to members of the
Statewide Structural Collapse Team, but does not include travel to and from the training.
5.2 Civil liability exemption; regional emergency response teams and their sponsoring
agencies: Under §895.483(4), Wis. Stats., a regional structural collapse team, a
member of such a team, and a local agency, as defined in s.,§323.70 (1) (b), that
contracts with the division of emergency management in the department of military
affairs for the provision of a regional structural collapse team, are immune from civil
liability for acts or omissions related to carrying out responsibilities under a contract
under§323.72 (1), Stats.
5.3 Contractor Indemnification of State: When acting as other than an agent of the
Division under this Agreement, and when using the State's or Division's vehicles or
equipment, the Contractor shall indemnify, defend and hold harmless the State, Division,
its officers, Divisions, agents, employees, and members from all claims, suits or actions of
any nature arising out of the activities or omissions of Contractor, its officers,
subcontractors, agents or employees.
6.0 Insurance Provisions
6.1 Public Liability and Property Damage Insurance: Contractor shall maintain, at its own
expense, and keep in effect during the term of this Agreement, commercial liability, bodily
injury and property damage insurance against any claim(s) which might occur in carrying
out this Agreement. Minimum coverage is one million dollars ($1,000,000) liability for
bodily injury and property damage including products liability and completed operations.
If Contractor is self-insured or uninsured, a Certificate of Protection in Lieu of an Insurance
Policy shall be submitted to the Division certifying that Contractor is protected by a Self-
Funded Liability and Property Program or alternative funding source(s), attached hereto as
"Exhibit C". The Certificate is required to be presented prior to commencement of this
Agreement.
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6.2 Automobile Liability: Contractor and team members shall obtain and keep in effect
motor vehicle insurance for all owned, non-owned and hired vehicles that are used in
carrying out this Agreement. This coverage may be written in combination with the
commercial liability, bodily injury and property damage insurance mentioned in Subsection
6.1. Minimum coverage limits shall be one million ($1,000,000) per occurrence combined
single limit for automobile liability and property damage.
If Contractor is self-insured or uninsured, a Certificate of Protection in Lieu of an Insurance
Policy shall be submitted to the Division certifying that Contractor is protected by a Self-
Funded Liability and Property Program, or alternative funding source(s) attached hereto as
"Exhibit C". The Certificate is required to be presented prior to commencement of this
Agreement.
6.3 Notice of Cancellation or Change: Contractor agrees that there shall be no
cancellation, material change, exhaustion of aggregate limits or intent not to renew
insurance coverage without 30 days written notice to the Division.
6.4 Certificate(s) of Insurance: As evidence of the insurance coverage required by this
Agreement, Contractor shall provide an insurance certificate indicating this coverage,
countersigned by an insurer licensed to do business in Wisconsin, covering the period of
the Agreement. The insurance certificate is required to be presented prior to
commencement of this Agreement.
7.0 Standard Contract Terms, Conditions and Requirements
7.1 Disclosure of Independence and Relationship: Contractor certifies that no relationship
exists between the Statewide Structural Collapse Team, the State or the Division that
interferes with fair competition or is a conflict of interest, and no relationship exists
between the team and another person or organization that constitutes a conflict of interest
with respect to a state contract. The Department of Administration may waive this
provision, in writing, if those activities of the Contractor will not be adverse to the interest of
the State.
Contractor agrees as part of this contract for services that during performance of this
contract, they will neither provide contractual services nor enter into any agreement to
provide services to a person or organization that is regulated or funded by the contracting
agency or has interests that are adverse to the contracting agency. The Department of
Administration may waive this provision, in writing, if those activities of the Contractor will
not be adverse to the interests of the State.
7.2 Dual Employment: §16.417 of the Wisconsin Statutes, prohibits an individual who is a
state employee or who is retained as a consultant full-time by a state agency from being
retained as a consultant by the same or another agency where the individual receives
more than $5,000 as compensation. This prohibition applies only to individuals and does
not include corporations or partnerships.
7.3 Employment: Contractor will not engage the service of any person or persons now
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employed by the State, including any department, commission, or board thereof, to
provide services relating to this Agreement without the written consent of the employer of
such person or persons and the Department of Military Affairs and the Division.
7.4 Conflict of interest: Private and non-profit corporations are bound by §180.0831 and
§181.225 Wis. Stats., regarding conflicts of interest by directors in the conduct of state
contracts.
7.5 Recordkeeping and Record Retention: The Contractor shall establish and maintain
adequate records of all expenditures incurred under the Agreement. All records must be
kept in accordance with generally accepted accounting principles, and be consistent with
federal and state laws and local ordinances. The Division, the federal government, and
their duly authorized representatives shall have the right to audit, review, examine, copy
and transcribe any pertinent records or documents relating to any contract resulting from
this Agreement held by Contractor. The Contractor shall retain all documents applicable to
the Agreement for a period of not less than three (3) years after the final payment is made
or longer where required by law.
7.6 Hold Harmless: The Division of Emergency Management, the Department of Military
Affairs,and the State of Wisconsin shall be held harmless in any disputes the team and/or
fire department may have with their employees. This shall include, but not be limited to,
charges of discrimination, harassment, and discharge without just cause.
7.7 Termination of Agreement: The Division and/or Contractor may terminate this
Agreement at any time for cause by delivering one hundred twenty (120) days written
notice to the other Party. Upon termination, the Division's liability will be limited to the pro
rata cost of the training costs provided under Subsection 4.1 as of the date of termination
plus expenses incurred with the prior written approval of the Division. Upon termination,
Contractor will refund to the Division within one hundred twenty (120) days of said
termination pro rata training payments made hereunder by the Division to the Contractor.
Contractor may terminate this Agreement at will by delivering one hundred twenty (120)
days written notice to the Division. In the event the Contractor terminates this Agreement
for any reason whatsoever, it will refund to the Division within one hundred twenty (120)
days of said termination all payments made hereunder by the Division for training costs,
under Subsection 4.1, provided to the Contractor for the contract year in which the
termination occurs based in proportion to the number of days remaining in the contract
year.
The Division may terminate this Agreement at will effective upon delivery of written notice
to the Contractor, under any of the following conditions:
(1) If funding from federal, state, or other sources is not obtained and/or continued
at levels sufficient to allow for training, the Agreement may be modified to
accommodate a reduction or increase in funds.
(2) If federal or state laws, rules, regulations, or guidelines are modified, changed,
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or interpreted in such a way that the services are no longer allowable or
appropriate for purchase under this Agreement or are no longer eligible for the
funding proposed for payments by this Agreement.
(3) if any license or certification required by law or regulation to be held by the
Contractor to provide the services required by this Agreement is for any reason
denied, revoked, or not renewed.
Any termination of the Agreement shall be without prejudice to any obligations or liabilities
of either party already accrued prior to such termination. Upon termination, the Division's
liability under Section 5.0 will be limited to events occurring during the term of this
Agreement.
7.8 Cancellation: The State of Wisconsin reserves that right to cancel any contract in whole
or in part without penalty due to non-appropriation of funds or for failure of the Contractor
to comply with the terms, conditions, and specifications of this Agreement.
7.9 Prime Contractor and Minority Business Subcontractors: In the event Contractor
subcontracts for supplies and/or services, any subcontractor must abide by all terms and
conditions of the Agreement. The Contractor shall be responsible for contract performance
whether or not subcontractors are used.
Contractor is encouraged to purchase services and supplies whenfif applicable from
minority businesses certified by the Wisconsin Department of Development, Bureau of
Minority Business Development.
Contractor shall file with the Department of Military Affairs quarterly reports of purchases
of such supplies and services necessary for the implementation of this Agreement.
7.10 Executed Contract to Constitute Entire Agreement: The contents of the Agreement
including Exhibits and additional terms agreed to, in writing, by the Division and the
Contractor shall become a part.of the Agreement herein. The written Agreement with
referenced parts and attachments shall constitute the entire Agreement and no other
terms and conditions in any document, acceptance, or acknowledgment shall be effective
or binding unless expressly agreed to, in writing, by the contracting authority.
7.11 News Releases: News releases pertaining to the negotiation of this Agreement shall not
be made without the prior approval of the Division.
7.12 Applicable Law: This Agreement shall be governed under the laws of the State of
Wisconsin. The Contractor and State shall at all times comply with and observe all federal
and state laws, local laws, ordinances and regulations which are in effect during the period
of this Agreement and which may in any manner affect the work or its conduct.
7.13 Assignment: No right or duty, in whole or in part, of the Contractor under this Agreement
may be assigned or delegated without the prior written consent of the State of Wisconsin.
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•
7.14 Successors in Interest: The provisions of the Agreement shall be binding upon and shall
inure to the benefit of the parties to the Agreement and their respective successors and
assigns.
7.15 Force Majeure: Neither party to this Agreement shah be held responsible for delay or
default caused by fire, riots, acts of God and/or war which is beyond that party's
reasonable control.
7.17 Notifications: Contractor shall immediately report by telephone and in writing any
demand, request, or occurrence that reasonably may give rise to a claim against the
State, its officers, Divisions, agents, employees and members. Such r eports shall be
directed to:
ATTN: Administrator
Division of Emergency Management
DMA Wisconsin
PO Box 7865
Madison, WI 53707-7865
Telephone#: (608)242-3232
FAX#: (608) 242-3247
Copies of such written reports shall also be sent to:
ATTN: Office of Legal Counsel, WING-LGL
WI Dept. of Military Affairs
PO Box 8111
Madison, WI 53708-8111
7.17 Severability: If any provision of this Agreement is declared by a court to be illegal or in
conflict with any law, the validity of the remaining terms and provisions shall not be
affected. The rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular provision held to be invalid.
7.18 Amendments: The terms of this Agreement shall not be waived, altered, modified,
supplemented or amended in any manner whatsoever without prior written approval of
Division and Contractor.
7.19 Approval Authority: Contractor's representative(s) certify by their signature herein that
he or she, as the case may be, has the necessary and lawful authority to enter into
contracts and agreements on behalf of the local government entity.
7.20 Insufficient Funds: The obligation of the Contractor under this Agreement is contingent
upon the availability and allotment of funds by the Division to Contractor and Contractor
may, upon one hundred twenty (120) days prior written notice, terminate this contract if
funds are not available.
12
7.21 No Waiver: No failure to exercise, and no delay in exercising, any right, power or remedy,
including payment, hereunder, on the part of the Division, State, or Contractor shall
operate as a waiver hereof, nor shall any single or partial exercise of any right, power or
remedy preclude any other or further exercise thereof or the exercise of any other right,
power or remedy. No express waiver shall effect any event or default other than the event
or default specified in such waiver, and any such waiver, to be effective, must be in writing
and shall be operative only for the time and to the extent expressly provided by the
Division, State or Contractor therein. A waiver of any covenant, term or condition
contained herein shall not be construed as a waiver of any subsequent breach of the
same covenant, term or condition.
7.22 Construction of Agreement: This Agreement is intended to be solely between the
parties hereto. No part of the Agreement shall be construed to add, supplement, amend,
abridge, or repeal existing rights, benefits or privileges of any third party or parties,
including but not limited to employees of either of the parties.
7.23 Disparity: In the event of a discrepancy, difference or disparity in the terms, conditions or
language contained any previous correspondence from the Division, it is agreed between
the parties that the language in this Agreement shall prevail.
Approving Signatures:
ON BEHALF OF THE DIVISION OF EMERGENCY MANAGEMENT(DIVISION)
Dated this aa:"\-- day of f.e. 2011
-/J, . 0
B an M. Satula, Division Administrator
13
On Behalf of the City of Oshkosh
A Municipal Corporation
Dated this day of , 2011
Signature:
Printed Name: Mark A. Rohloff
Title: City Manager
Address: 215 Church Avenue
City/State: Oshkosh,WI Zip: 54903-1130
On Behalf of the City of Oshkosh
Dated this day of , 2011
Signature:
Printed Name: Pamela R. Ubrig
Title: City Clerk
Address: 215 Church Avenue
City/State: Oshkosh,WI Zip: 54903-1130
On Behalf of the City of Oshkosh
Dated this day of , 2011
Signature:
Printed Name: Peggy Steeno
Title: Finance Director
Address: 215 Church Avenue
City/State: Oshkosh, WI Zip: 54903-1130
14
Approved as to form:
Dated this day of , 2011
Signature:
Printed Name: Lynn A. Lorenson
Title: City Attorney
Address: 215 Church Avenue
City/State: Oshkosh,WI Zip: 54903-1130
15
Wisconsin Department of Administration
Chs. 16, 19, 51 EXHIBIT A
DOA-3054(R10/2005)
Page 1 of 3
Standard Terms And Conditions
(Request For Bids / Proposals)
1.0 SPECIFICATIONS:. The specifications in this request are 7.0 UNFAIR SALES ACT: Prices quoted to the State of
the minimum acceptable. When specific manufacturer and Wisconsin are not governed by the Unfair Sales Act.
model numbers are used, they are to establish a design,
type of construction, quality, functional capability and/or 8.0 ACCEPTANCE-REJECTION: The State of Wisconsin
performance level desired. When alternates are reserves the right to accept or reject any or all
bid/proposed,they must be identified by manufacturer, stock bids/proposals,to waive any technicality in any bid/proposal
number, and such other information necessary to establish submitted, and to accept any part of a bid/proposal as
equivalency. The State of Wisconsin shall be the sole judge deemed to be in the best interests of the State of
of equivalency. Bidders/proposers are cautioned to avoid Wisconsin.
• bidding alternates to the specifications which may result in
rejection of their bid/proposal. Bids/proposals MUST be date and time stamped by the
soliciting purchasing office on or before the date and time
2.0 DEVIATIONS AND EXCEPTIONS: Deviations and ezcep- that the bid/proposal is due. Bids/proposals date and time
tions from original text, terms, conditions, or specifications stamped in another office will be rejected. Receipt of a
shall be described fully, on the bidder's/proposer'•s letter- bid/proposal by the mail system does not constitute receipt
head, signed, and attached to the request. In the absence of a bid/proposal by the purchasing office.
of such statement, the bid/proposal shall be accepted as in
strict compliance with all terms, conditions, and specifica- 9.0 METHOD OF AWARD: Award shall be made to the lowest
tions and the bidders/proposers shall be held liable. responsible,responsive bidder unless otherwise specified.
3.0 QUALITY: Unless otherwise indicated in the request, all 10.0 ORDERING: Purchase orders or releases via purchasing
material shall be first quality. Items which are used, cards shall be placed directly to the contractor by an
demonstrators, obsolete, seconds, or which have been authorized agency. No other purchase orders are
discontinued are unacceptable without prior written approval authorized.
by the State of Wisconsin.
11.0 PAYMENT TERMS AND INVOICING: The State of
4.0 QUANTITIES: The quantities shown on this request are Wisconsin normally will pay properly submitted vendor
based on estimated needs. The state reserves the right to invoices within thirty (30) days of receipt providing goods
increase or decrease quantities to meet actual needs: and/or services have been delivered, installed (if required),
and accepted as specified.
5.0 DELIVERY: Deliveries shall be F.O.B. destination freight
prepaid and included unless otherwise specified. Invoices presented for payment must be submitted in
accordance with instructions contained on the purchase
6.0 PRICING AND DISCOUNT: The State of Wisconsin quali- order including reference to purchase order number and
fies for governmental discounts and its educational institu- submittal to the correct address for processing.
tions also qualify for educational discounts. Unit prices shall
reflect these discounts. A good faith dispute creates an exception to prompt
payment.
6.1 Unit prices shown on the bid/proposal or contract
shall be the price per unit of sale(e.g.,gal., cs.,doz., 12.0 TAXES: The State of Wisconsin and its agencies are
ea.) as stated on the request or contract. For any exempt from payment of all federal tax and Wisconsin state
given item, the quantity multiplied by the unit price and local taxes on its purchases except Wisconsin excise
shall establish the extended price, the unit price shall taxes as described below.
govern in the bid/proposal evaluation and contract
administration. The State of Wisconsin, including all its agencies, is
required to pay the Wisconsin excise or occupation tax on
6.2 Prices established in continuing agreements and its purchase of beer, liquor, wine, cigarettes, tobacco
term contracts may be lowered due to general market products, motor vehicle fuel and general aviation fuel.
conditions, but prices shall not be subject to increase However, it is exempt from payment of Wisconsin sales or
for ninety(90) calendar days from the date of award. use tax on its purchases. The State of Wisconsin may be
Any increase proposed shall be submitted to the subject to other states'taxes on its purchases in that state
contracting agency thirty (30) calendar days before depending on the laws of that state. Contractors perform-
the proposed effective date of the price increase,and ing construction activities are required to pay state use tax
shall be limited to fully documented cost increases to on the cost of materials.
the contractor which are demonstrated to be indus-
trywide. The conditions under which price increases 13.0 GUARANTEED DELIVERY: Failure of the contractor to
may be granted shall be expressed in bid/proposal adhere to delivery schedules as specified or to promptly
documents and contracts or agreements. replace rejected materials shall render the contractor liable
for all costs in excess of the contract price when alternate
6.3 In determination of award, discounts for early procurement is necessary. Excess costs shall include the
payment will only be considered when all other con- administrative costs.
ditions are equal and when payment terms allow at
least fifteen (15) days, providing the discount terms 14.0 ENTIRE AGREEMENT: These Standard Terms and
are deemed favorable. All payment terms must allow Conditions shall apply to any contract or order awarded as
the option of net thirty(30). a result of this request except where special requirements
•
DOA-3054
Page 2 of 3
are stated elsewhere in the request; in such cases, the on preparing the plan and technical assistance
special requirements shall apply. Further, the written regarding this clause are available from the
contract and/or order with referenced parts and attach- contracting state agency.
ments shall constitute the entire agreement and no other
terms and conditions in any document, acceptance, or 19.2 The contractor agrees to post in conspicuous places,
acknowledgment shall be effective or binding unless available for employees and applicants for employ-
expressly agreed to in writing by the contracting authority. ment, a notice to be provided by the contracting state
agency that sets forth the provisions of the State of
15.0 APPLICABLE LAW AND COMPLIANCE: This contract Wisconsin's nondiscrimination law.
shall be governed under the laws of the State of Wisconsin.
The contractor shall at all times comply with and observe all 19.3 Failure to comply with the conditions of this clause
federal and state laws, local laws, ordinances, and may result in the contractor's becoming declared an
regulations which are in effect during the period of this "ineligible" contractor, termination of the contract, or
contract,and which in any manner affect the work or its withholding of payment.
conduct. The State of Wisconsin reserves the right to
cancel this contract if the contractor fails to follow the 20.0 PATENT INFRINGEMENT: The contractor selling to the
requirements of s. 77.66, Wis. Stats., and related statutes State of Wisconsin the articles described herein guarantees
regarding certification for collection of sales and use tax. the articles were manufactured or produced in accordance
The State of Wisconsin also reserves the right to cancel with applicable federal labor laws. Further, that the sale or
this contract with any federally debarred contractor or a use of the articles described herein will not infringe any
contractor that is presently identified on the list of parties United States patent. The contractor covenants that it will
excluded from federal procurement and non-procurement at its own expense defend every suit which shall be brought
contracts. against the State of Wisconsin (provided that such
contractor is promptly notified of such suit, and all papers
16.0 . ANTITRUST ASSIGNMENT: The contractor and the State therein are delivered to it) for any alleged infringement of
of Wisconsin recognize that in actual economic practice, any patent by reason of the sale or use of such articles, and
overcharges resulting from antitrust violations are in fact agrees that it will pay all costs, damages,and profits recov-
usually borne by the State of Wisconsin. (purchaser). erable in any such suit.
Therefore, the contractor hereby assigns to the State of
Wisconsin any and all claims for such overcharges as to 21.0 SAFETY REQUIREMENTS: All materials, equipment, and
goods, materials or services purchased in connection with supplies provided to the State of Wisconsin must comply
this contract. fully with all safety requirements as set forth by the
Wisconsin Administrative Code and all applicable OSHA
17.0 ASSIGNMENT: No right or duty in whole or in part of the Standards.
contractor under this.contract may be assigned or dele-
gated without the prior written consent of the State of 22.0 WARRANTY: Unless otherwise specifically stated by the
Wisconsin. bidder/proposer, equipment purchased as a result of this
request shall be warranted against defects by the
18.0 WORK CENTER CRITERIA: A work center must be certi- bidder/proposer for one (1) year from date of receipt. The
fled under s. 16.752, Wis. Stats., and must ensure that equipment manufacturer's standard warranty shall apply as
when engaged in the production of materials, supplies or a minimum and must be honored by the contractor.
equipment or the performance of contractual services, not
less than seventy-five percent (75%) of the total hours of 23.0 INSURANCE RESPONSIBILITY: The contractor perform-
direct labor are performed by severely handicapped ing services for the State of Wisconsin shall:
individuals.
23.1 Maintain worker's compensation insurance as
19.0 NONDISCRIMINATION / AFFIRMATIVE ACTION: In required by Wisconsin Statutes, for all employees
connection with the performance of work under this engaged in the work.
contract, the contractor agrees not to discriminate against
any employee or applicant for employment because of age, 23.2 Maintain commercial liability, bodily injury and prop-
race, religion, color, handicap, sex, physical condition, erty damage insurance against any claim(s) which
developmental disability as defined in s. 51.01(5), Wis. might occur in carrying out this agreement/contract.
Stats.,sexual orientation as defined in s. 111.32(13m),Wis. Minimum coverage shall be one million dollars
Stats., or national origin. This provision shall include, but ($1,000,000) liability for bodily injury and property
not be limited to, the following: employment, upgrading, damage including products liability and completed
demotion or transfer; recruitment or recruitment advertising; operations. Provide motor vehicle insurance for all
layoff or termination; rates of pay or other forms of owned, non-owned and hired vehicles that are used
compensation; and selection for training, including appren- in carrying out this contract. Minimum coverage shall
ticeship. Except with respect to sexual orientation, the be one million dollars ($1,000,000) per occurrence
contractor further agrees to take affirmative action to combined single limit for automobile liability and
ensure equal employment opportunities. property damage.
19.1 Contracts estimated to be over twenty-five thousand 23.3 The state reserves the right to require higher or lower
dollars ($25,000) require the submission of a written limits where warranted.
affirmative action plan by the contractor. An exemp-
tion occurs from this requirement if the contractor has 24.0 CANCELLATION: The State of Wisconsin reserves the
a workforce of less than twenty-five (25) employees. right to cancel any contract in whole or in part without
Within fifteen (15) working days after the contract is penalty due to nonappropriation of funds or for failure of the
awarded, the contractor must submit the plan to the contractor to comply with terms, conditions, and specifica-
contracting state agency for approval. Instructions tions of this contract.
DOA-3054
Page 3 of 3
30.0 MATERIAL SAFETY DATA SHEET: If any item(s) on an
25.0 VENDOR TAX DELINQUENCY: Vendors who have a order(s) resulting from this award(s) is a hazardous chemi-
delinquent Wisconsin tax liability may have their payments cal, as defined under 29CFR 1910.1200, provide one (1)
offset by the State of Wisconsin. copy of a Material Safety Data Sheet for each item with the
shipped container(s)and one(1)copy with the invoice(s).
26.0 PUBLIC RECORDS ACCESS: It is the intention of the
state to maintain an open and public process in the solicita- 31.0 PROMOTIONAL ADVERTISING / NEWS RELEASES:
tion, submission, review, and approval of procurement Reference to or use of the State of Wisconsin, any of its
activities. departments, agencies or other subunits, or any state offi-
cial or employee for commercial promotion is prohibited.
Bid/proposal openings are public unless otherwise sped- News releases pertaining to this procurement shall not be
tied. Records may not be available for public inspection made without prior approval of the State of Wisconsin.
prior to issuance of the notice of intent to award or the Release of broadcast a-mails pertaining to this procurement
award of the contract. shall not be made without prior written authorization of the
contracting agency.
27.0 PROPRIETARY INFORMATION: Any restrictions on the
use of data contained within a request, must be clearly 32.0 HOLD HARMLESS: The contractor will indemnify and
stated in the bid/proposal itself. Proprietary information save harmless the State of Wisconsin and all of its officers,
submitted in response to a request will be handled in agents and employees from all suits, actions, or claims of
accordance with applicable State of Wisconsin any character brought for or on account of any injuries or
procurement regulations and the Wisconsin public records damages received by any persons or property resulting
law. Proprietary restrictions normally are not accepted. from the operations of the contractor, or of any of its
However, when accepted, it is the vendor's responsibility to contractors, in prosecuting work under this agreement.
defend the determination in the event of an appeal or
litigation. 33.0 FOREIGN CORPORATION: A foreign corporation (any
corporation other than a Wisconsin corporation) which
27.1 Data contained in a bid/proposal, all documentation becomes a party to this Agreement is required to conform
provided therein, and innovations developed as a to all the requirements of Chapter 180,Wis. Stats., relating
result of the contracted commodities or services to a foreign corporation and must possess a certificate of
cannot be copyrighted or patented. All data, docu- authority from the Wisconsin Department of Financial
mentation, and innovations become the property of Institutions, unless the corporation is transacting business
the State of Wisconsin. in interstate commerce or is otherwise exempt from the
requirement of obtaining a certificate of authority. Any
27.2 Any material submitted by the vendor in response to foreign corporation which desires to apply for a certificate of
this request that the vendor considers confidential authority should contact the Department of Financial
and proprietary information and which qualifies as a Institutions, Division of Corporation, P. O. Box 7846,
trade secret, as provided in s. 19.36(5), Wis. Stats., Madison,WI 53707-7846;telephone(608)261-7577.
or material which can be kept confidential under the
Wisconsin public records law, must be identified on a 34.0 WORK CENTER PROGRAM: The successful
Designation of Confidential and Proprietary Informa- bidder/proposer shall agree to implement processes that
tion form (DOA-3027). Bidders/proposers may allow the State agencies, including the University of
request the form if it is not part of the Request for Wisconsin System, to satisfy the State's obligation to
Bid/Request for Proposal package. Bid/proposal purchase goods and services produced by work centers
prices cannot be held confidential. certified under the State Use Law, s.16.752, Wis. Stat.
This shall result in requiring the successful bidder/proposer
28.0 DISCLOSURE: If a state public official (s. 19.42, Wis. to include products provided by work centers in its catalog
Stats.), a member of a state public official's immediate for State agencies and campuses or to block the sale of
family, or any organization in which a state public official or comparable items to State agencies and campuses.
a member of the official's immediate family owns or controls
a ten percent (10%) interest, is a party to this agreement, 35.0 FORCE MAJEURE: Neither party shall be in default by
and if this agreement involves payment of more than three reason of any failure in performance of this Agreement in
thousand dollars ($3,000) within a twelve (12) month accordance with reasonable control and without fault or
period, this contract is voidable by the state unless appro- negligence on their part. Such causes may include, but are
priate disclosure is made according to s. 19.45(6), Wis. not restricted to, acts of nature or the public enemy, acts of
Stats., before signing the contract. Disclosure must be the government in either its sovereign or contractual
made to the State of Wisconsin Ethics Board, 44 East capacity, fires, floods, epidemics, quarantine restrictions,
Mifflin Street, Suite 601, Madison, Wisconsin 53703 strikes, freight embargoes and unusually severe weather,
(Telephone 608-266-8123). but in every case the failure to perform such must be
beyond the reasonable control and without the fault or
State classified and former employees and certain negligence of the party.
University of Wisconsin faculty/staff are subject to separate
disclosure requirements, s. 16.417,Wis.Stats.
29.0 RECYCLED MATERIALS: The State of Wisconsin is
required to purchase products incorporating recycled mate-
rials whenever technically and economically feasible.
Bidders are encouraged to bid products with recycled
content which meet specifications.
EXHIBIT B
CONTRACT FOR STATEWIDE STRUCTURAL
COLLAPSE TEAM MEMBERS
TRAINING COSTS
Calendar years 2011 —2012
NAME OF CONTRACTOR: City of Oshkosh
NUMBER OF TEAM MEMBERS PROVIDED: 8
TRAINING COSTS CALCULATED AS:
Number of team members provided: 8
Required hours of training per annum: 32 hours
Hourly training cost: $45 per hour
8 X 32 X $45.00 = $11,520.00
(# members) (Training hours) (Hourly cost) Total
ANNUAL TRAINING COSTS $11,520.00