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HomeMy WebLinkAboutAECOM/CITY-WIDE STORMWATER POLUTION ANALYSIS UPDATE 2012 CITY OF OSHKOSH DEPARTMENT OF PUBLIC WORKS 215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130 PHONE: (920) 236-5065 FAX(920)236-5068 LETTER OF TRANSMITTAL To: Mr. Jim Bachhuber Date: May 21, 2012 AECOM Subject: Executed Agreement for City-Wide 1350 Deming Way Storm Water Pollution Analysis Suite 100 Update Middleton, WI 54903 Please find: ® Attached ❑ Under Separate Cover ❑ Copy of Letter ® Contracts ❑ Amendment ❑ Report ❑ Agenda ❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans ❑ Specifications ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other Quantity Description 1 Executed Agreement 1 Copy of Executed Agreement These are being transmitted as indicated below: ❑ For Approval ® For Your Use ❑ As Requested ❑ For Review&Comment Remarks: Enclosed is your copy of the executed agreement for the City-Wide Storm Water Pollution Analysis Update. We have also enclosed a copy of the agreement for you to submit to Gus Glaser, Storm Water Engineer& Urban Grants Coordinator, at the Wisconsin Department of Natural Resources. If you have any questions, please contact us. City Attorney's Office—Copy City Clerk's Office—Original cc: _ File—Original Signed: Lhaili. Tracy . ay or I:IEngineeringlStorm Water InformationlCity Wide Storm Water Modeling-Earth Tech12011 Plan UpdatelContract StuffILOT-AECOM-Executed•greement-City-Wide SW Pollution Analy Update_5-21-12.docx CONSULTING AGREEMENT AND AUTHORIZATION TO PROCEED THIS AGREEMENT between AECOM Technical Services, Inc., with offices located at 1350 Deming Way, Suite 100 Middleton, Wisconsin 53562 (hereinafter referred to as the "Consultant" or "ATS"), and the City of Oshkosh, with offices located at 215 Church Ave, Oshkosh, WI 54903 (hereinafter referred to as the "CLIENT" or"CITY"). 1. ATS agrees to perform the services described in Attachment A ("SERVICES"). 2. CLIENT authorizes ATS to perform these SERVICES for the following project and location: Conduct stormwater pollution city-wide analysis as described on Attachment A. 3. ATS is willing to perform the SERVICES in exchange for the following fee: X CLIENT will pay on a time and materials basis according to the attached cost estimate. At this time, the total authorized contract value is $135,763.00, and AECOM will not exceed this amount without prior written authorization. Upon reaching this limit, AECOM will stop performing work until such time that CLIENT authorizes such additional work to proceed. 4. Billing: ATS will submit invoices to CLIENT monthly. CLIENT recognizes that timely payment is a material part of this Agreement. Each invoice is due and payable within thirty (30) calendar days of the date of the invoice. CLIENT will pay an additional charge of one and one-half percent per month not to exceed the maximum rate allowed by law for any payment received by ATS more than thirty (30) calendar days from the date of the invoice. CLIENT will pay when due that portion of invoice, if any, not in dispute. If CLIENT fails to pay any undisputed invoiced amounts within thirty (30) calendar days of the date of the invoice, ATS may suspend its performance or terminate this Agreement without incurring any liability to CLIENT and without waiving any other claim against CLIENT. 5. Special Provisions: NONE X ATTACHMENT A CLIENT confirms reading this document in full (including the terms 6 through 18 on the following page). This Agreement when executed by ATS is an offer to perform the services, open for acceptance within 30 days. This Agreement becomes effective on the date CLIENT signs below. CITY OF OSHKOSH AECOM TECHN AL SERVICES, INC. By: By: • Rohloff, Cit P rick Clifford; District Manager • ! By - _ ''_ Date: Zy/f Z Pa la R. Ubrig; City lerk By: SIN ' Lynn A. Lorenson; City Attorney By: Roy- Peggy A. Steeno; Director of Finance Date: 5-15-2c/2 I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract Conssf.98k(Aug 13, 1998) C:1Users\cliffordpWppData'Local\Microsoft■Windows■Temporary Internet Files\Content.Outlook\DNJEZHFQ\2012 City-wide Update Notice to Proceed.doc 1 AECOM General Conditions of Service—City of Oshkosh April, 2009 These General Conditions of Service,including any Supplemental Conditions of Service which are or may become applicable to the services described in AECOM's Proposal,are incorporated by reference into the foregoing Proposal and shall also be incorporated by reference into any Agreement under which services are to be performed by AECOM for the Client. No agreement or understanding,oral or written,which in any way modifies or waives these General Conditions of Service,shall be binding on AECOM (whether contained in the Client's purchase forms or otherwise)unless hereafter made in writing and executed by AECOM's authorized representative. Section 1: Scope of Work a. The scope of work and the time schedules defined in the Proposal are based on the information provided by the Client and shall be subject to the provisions of this agreement. If this information is incomplete or inaccurate,or if site conditions are encountered which materially vary from those indicated by the Client, or if the Client directs AECOM to change the original scope of work established by the Proposal,a written amendment to the Agreement equitably adjusting the costs,performance time,and/or terms and conditions thereunder,shall be executed by the Client and AECOM as soon as practicable. AECOM,at its discretion,may suspend performance of its services until such an Amendment has been executed and, if such an Amendment is not agreed to within a reasonable time,AECOM may terminate this Agreement. In the event this Agreement is terminated pursuant to this Section,the Client shall pay AECOM for all services performed prior to termination and termination expenses as set forth in Section 15c of these General Conditions of Service. Section 2: Billings and Payments a. Payments for services and reimbursable expenses will be made on the basis set forth in the attached proposal. AECOM shall periodically submit invoices for services performed and expenses incurred and not previously billed. Payment is due upon receipt. For all amounts unpaid after 30 days from the invoice date,as set forth on AECOM's invoice form,the Client agrees to pay a finance charge of one and one-half percent(1-1/2%)per month,eighteen percent(18%)annually.The fees described in this agreement may be adjusted annually on the anniversary date of the effective date of this agreement. b. The Client shall provide AECOM with a clear written statement within fifteen(15)days after receipt of the invoice of any objections to the invoice or any portion or element thereof. Failure to provide such a written statement shall constitute a waiver of any such objections and acceptance of the invoice as submitted. c. The Client's obligation to pay for the services performed by AECOM under this Agreement shall not be reduced or in any way impaired by or because of the Client's inability to obtain financing,zoning, approval of governmental or regulatory agencies,or any other cause, reason, or contingency. No deduction shall be made from any invoice on account of penalty or liquidated damages nor will any other sums be withheld or set off from payments to AECOM. Client further agrees to pay AECOM any and all expenses incurred in recovering any delinquent amounts due,including,but not limited to reasonable attorney's fees,arbitration,or other dispute resolution costs,and all court costs. d. If any subpoena or court order is served upon AECOM and/or any of its staff, subconsultants or subcontractors requiring presentation of documents or the appearance of AECOM's staff,subconsultants or subcontractors at a trial,deposition,or for other discovery purposes arising out of AECOM's services performed under this Agreement,Client will pay AECOM's fees(if any)applicable to AECOM's compliance with the subpoena or court order. Fees will be based on actual units used at the standard rates in effect at time of service upon AECOM of the subpoena or court order. Billings shall include time and expenses incurred gathering,organizing,duplicating documents, preparing to give testimony,travel,and testifying in deposition or trial. Section 3: Right of Access a. If services to be provided under this Agreement require the agents,employees,or contractors of AECOM to enter onto the Project site, Client shall provide right-of-access to the site to AECOM,its employees,agents and contractors,to conduct the planned field observations or services. b If the scope of services includes,or is amended to include,the performance of exploratory borings or test pit excavations,Client will furnish to AECOM all diagrams,and other information in its possession or reasonably attainable by Client indicating the location and boundaries of the site and subsurface structures(pipes,tanks, cables, sewers,other utilities,etc.)in such detail as to permit identifying, in the field,boring/test pit locations which will avoid interferences with any subsurface structures. AECOM will utilize"Diggers Hotline"to locate and mark public utilities. Client shall indemnify and hold AECOM harmless from liability on account of damages to subsurface structures or injury or loss arising from damage to subsurface structures,the locations of which are not indicated or are incorrectly indicated by Diggers Hotline or the information provided by the Client. c. AECOM reserves the right to deviate a reasonable distance from prescribed or selected exploratory boring or Conssf.98k(Aug 13, 1998) 2 CDBG consulting-agreement-and-authorization-to-proceed test pit locations. d. AECOM shall take reasonable precautions to minimize damage to the site due to its operations, but AECOM has not included in its fee,and is not responsible for,the cost of restoration for any damage resulting from its operations. At the Client's request and for additional fee,AECOM will,to the extent reasonably practicable, restore the site to conditions substantially similar to those existing prior to AECOM's operations. Section 4: Safety a. It is understood and agreed that,with respect to Project site health and safety,AECOM is responsible solely for the safe performance by its field personnel of their activities in performance of the required services. It is expressly agreed that AECOM's professional services hereunder do not involve any responsibility for the protection and safety of persons on and about the Project nor is AECOM to review the adequacy of job safety on the Project. It is further understood and agreed,and not in limitation of the foregoing,that AECOM shall not be in charge of,and shall have no control or responsibility over any aspect of the erection,construction or use of any scaffolds, hoists,cranes,stays, ladders,supports,or other similar mechanical contrivances or safety devices as defined and interpreted under any structural work act or other statute, regulation,or ordinance relating in any way to Project safety. b. Unless otherwise specifically provided in this Agreement,Client shall provide,at its expense,facilities and labor necessary to afford AECOM field personnel access to sampling,testing,or observation locations in conformance with federal,state,and local laws,ordinances, and regulations specifically, including,but not limited to regulations set forth in OSHA 29 CFR 1926. c. If,in AECOM's opinion, its field personnel are unable to access required locations and perform the required services in conformance with federal,state, and local laws, ordinances and regulations due to Project site conditions or operations of other parties present on the Project site,AECOM may,at its discretion,suspend its services until such conditions or operations are brought into conformance with applicable laws, ordinances and regulations. If,within a reasonable time,operations or conditions are not in conformance with applicable laws, ordinances,and regulations,AECOM may,at its discretion,terminate this Agreement. In the event that the Agreement is terminated pursuant to this Section,the Client shall pay AECOM for services and termination expenses as set forth in Section 15 of this Agreement. d. Current regulations promulgated by the Occupational Safety and Health Administration (OSHA)require that a "competent person"conduct inspections of excavations and review any supporting system if workers are to enter the excavations. See OSHA 29 CFR Part 1926(Subpart P). Under the scope of work incorporated in this Agreement,AECOM does not provide and has not assumed any duties of inspection and/or monitoring of excavations required of the"competent person"under OSHA 29 CFR Part 1926(Subpart P). AECOM has neither been assigned nor assumed the authority required of the"competent person"under OSHA 29 CFR Part 1926(Subpart P). Section 5: Samples a. Unless otherwise specifically provided in this Agreement or amendments thereto,AECOM reserves the right to discard samples immediately after testing. Upon request,the samples will be shipped(shipping charges collected)or stored at the rate indicated in the fee schedule attached. Section 6: Reports and Ownership of Documents a. AECOM shall furnish up to six(6)copies of each report to Client. Additional copies shall be furnished at the rates specified in the fee schedule. With the exception of AECOM reports to Client,all documents,including original boring logs,field data,field notes,laboratory test data,calculations,and estimates are and remain the property of AECOM. Client agrees that all reports and other work product furnished to the Client not paid for in full will be returned upon demand and will not be used for any purpose,including, but not limited to design, construction, permits, or licensing. Section 7: Standard of Care a. AECOM represents that it will perform its services under this Agreement in conformance with the care and skill ordinarily exercised by reputable members of the professional engineering community practicing under similar conditions at the same time in the same or similar locality. b. NO OTHER WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED,AT COMMON LAW OR CREATED BY STATUTE, IS EXTENDED, MADE,OR INTENDED BY THE RENDITION OF CONSULTING SERVICES OR BY FURNISHING ORAL OR WRITTEN REPORTS OF THE FINDINGS MADE. c. Any exploration,testing,surveys,and analysis associated with the work will be performed by AECOM for the Client's sole use to fulfill the purpose of this Agreement and AECOM is not responsible for interpretation by others of the information developed. The Client recognizes that subsurface conditions beneath the Project site may vary from those encountered in borings,surveys, or explorations and the information and recommendations Conssf.98k(Aug 13, 1998) CDBG consulting-agreement-and-authorization-to-proceed 3 developed by AECOM are based solely on the information available. d. AECOM is not responsible for supervising,directing, controlling,or otherwise being in charge of the construction activities at the Project site;or supervising,directing,controlling or otherwise being in charge of the actual work of the contractor,its subcontractors, or other materialmen or service providers not engaged by AECOM. Section 8: Hazardous Substances a. Upon entering into this Agreement,the Client shall notify AECOM of all such hazardous substances which it knows or which it reasonably suspects are or may be present at or contiguous to the Project site or which may otherwise affect the services to be provided. Thereafter,such notification to AECOM shall be required as soon as practicable after the Client discovers either the presence of hazardous substances which were not previously disclosed, increased concentrations of previously disclosed hazardous substances,or facts or information which cause the Client to reasonably suspect the presence of any such hazardous substances. Hazardous substances shall include, but not be limited to,any substance which poses or may pose a present or potential hazard to human health or the environment whether contained in a product, material, by-product,waste,or sample and whether it exists in a solid,liquid,semi-solid,or gaseous form. b. If all or any part of the scope of work is to be performed in the general vicinity of a facility or in an area where asbestos,dust,fumes,gas, noise,vibrations,or other particulate or nonparticulate matter is in the atmosphere where it raises a potential health hazard or nuisance to those working in the area of such conditions, Client shall immediately notify AECOM of such conditions,potential health hazard,or nuisance which it knows,should know, or reasonably suspects exists and,thereafter,AECOM is authorized by the Client to take all reasonable measures AECOM deems necessary to protect its employees against such possible health hazards or nuisance. The reasonable direct cost of such measures shall be borne by the Client. c. Following any disclosure as set forth in the preceding paragraphs,or if any hazardous substances or conditions are discovered or reasonably suspected by AECOM after its services are undertaken,AECOM may, at its discretion,suspend its services until reasonable measures have been taken at the Client's expense to protect AECOM's employees from such hazardous substances or conditions. Whether or not AECOM suspends its services in whole or in part,the Client and AECOM agree that the scope of services,terms, and conditions, schedule,and the estimated fee or budget shall be adjusted in accordance with the disclosed information or condition,or AECOM may,at its discretion,terminate the Agreement. In the event that this Agreement is terminated pursuant to this Section,the Client shall pay AECOM for all services rendered prior to termination and all termination expenses as set forth in Section 15 of these General Conditions of Service. d. In the event that services under this Agreement may involve or relate to hazardous substances, or constituents, including hazardous waste(as defined by federal,state,or local statutes, regulations or ordinances),whether or not involvement or relationship was contemplated at the time this Agreement was made or when services by AECOM began under this Agreement,the following conditions shall also be incorporated into the Agreement and be made applicable thereto: d.1. In the event that samples collected by or received by AECOM on behalf of the Client contain hazardous substances or constituents, including hazardous waste,AECOM will, after completion of testing and, at Client's expense, (1)return such samples to Client, or(2)upon written request and using a manifest signed by the Client as generator,release such samples to a carrier selected by the Client to be transported to a location selected by the Client for final disposal. The Client agrees to pay all costs associated with the storage,transport,and disposal of samples. The Client recognizes and agrees that AECOM is acting as a bailee and at no time assumes title to said samples or substances. d.2. All laboratory and field equipment contaminated in performing services under this Agreement which cannot be reasonably decontaminated shall become the property and responsibility of the Client. All such equipment shall be delivered to the Client or disposed of in a manner similar to that indicated for hazardous samples above. The Client agrees to pay the fair market value of any such equipment which cannot reasonably be decontaminated and all other costs associated with the storage,transport, and disposal of such equipment. Section 9: Construction Monitoring Services a. "Construction Monitoring Services"is defined as services,furnished by AECOM to the Client,which are performed for the purpose of evaluating and/or documenting general conformance of construction operations or completed work with Project specifications,plans,and/or specific reports of the Project. Such services may include taking of tests or collecting samples of natural or manmade materials at various locations on a project site,and making visual observations related to earthwork,foundations,and/or materials. If the services to be provided by AECOM under this agreement include or are amended to include Construction Monitoring Services, the provisions of this Section 9 shall be an integral part of this agreement and applicable thereto. b. The presence of AECOM field personnel will be for the purpose of providing the client with a professional service based on observations and testing of the work which is performed by a contractor, subcontractor,or other materialmen or service provider. Such services will only be those specifically requested by the Client and Conssf.98k(Aug 13, 1998) CDBG consulting-agreement-and-authorization-to-proceed 4 agreed to by AECOM. Discrepancies between construction operations or completed work and project requirements which are noted by AECOM field personnel will be referred to the Client,or the Client's representative,as designated prior to AECOM's involvement in the project. c. It is understood and agreed by the Client that the observation and testing of natural and/or man-made materials by AECOM in no way implies a guarantee or warranty of the work of the contractor,subcontractor,or other materialmen or service providers, and the services rendered by AECOM will in no way excuse such contractor, subcontractor,or other materialmen or service providers from liability in the event of subsequently discovered defects,omissions,errors or other deficiencies in their work. The presence or absence of AECOM on the Project site will not affect any obligation of any contractor,subcontractor,or other materialmen or service providers to perform in accordance with the specifications and plans of the Project. The Client further understands that AECOM is not a quality assurance representative for any contractor,subcontractor,or other materialman or service provider on the Project. d. The Client agrees to supply AECOM with specifications,plans,and other necessary material for the Project pertinent to providing its services. e. Due to the nature of its services,observing and field testing the work of contractors,subcontractors,or materialmen or service providers on the Project,AECOM cannot always be responsible for the schedule or length of time its field personnel remain on the Project site. The time AECOM's field personnel spend on the Project site is dependent upon the schedule of the contractor,subcontractor or materialman,or service provider whose work they are observing and/or testing. AECOM shall make reasonable effort to utilize its time on the Project site judiciously, but the Client understands and agrees that any delays,cancellations,rescheduling, overtime or other construction activities that may alter the anticipated number of hours and the anticipated costs of AECOM on the Project site and that are beyond the control of AECOM field personnel are legitimate and chargeable time and will be invoiced at the rates designated in the attached fee schedules. f. Part-time work is defined as Construction Monitoring Services provided by AECOM where its field personnel are on the Project less than five(5)working days per week or less than forty(40)hours per week,or both. It is agreed that the Client will furnish AECOM with a minimum of one working day's notice,or twenty-four(24)hours notice,whichever is greater, on any part-time work of AECOM if field personnel are requested. AECOM shall make reasonable effort to provide field personnel on all projects,but reserves the right to schedule its field personnel as it deems appropriate, including the scheduling of different field personnel from day to day on any given part-time project of AECOM. The Client agrees to inform AECOM of the anticipated services required by AECOM field personnel on any day, including but not restricted to the kind and number of tests to be required and the anticipated amount of time the field personnel will be required on the Project site g. All field personnel charges will be made on a portal-to-portal basis. Mileage to and from the Project site will be billed at the rate designated in the attached fee schedules as will any office engineering time needed to review, evaluate or analyze the field data. All calls made by the Client or the Client's representative to cancel requested part-time AECOM field personnel must be received by AECOM in time for AECOM to notify field personnel before they leave for the Project site. AECOM will make reasonable effort to contact its field personnel as quickly as possible,but reserves the right to bill the Client for time incurred in the event AECOM received a cancellation call too late for it to intercept the field personnel enroute to the Project site. Section 10: Opinions of Cost a. AECOM's opinions of probable total Project costs and Project construction costs, if any, provided as part of the services under this Agreement are made on the basis of AECOM's knowledge,experience,and qualifications and represent AECOM's judgment as an experienced and qualified professional engineer,familiar with the construction industry; but AECOM cannot and does not guarantee that proposals,bids, or actual total Project costs or Project construction costs will not vary from opinions of probable cost provided by AECOM. Section 11: Shop Drawings a. In the event that the scope of services includes review and approval of Shop Drawings or other data which contractor(s)are required to submit,AECOM's review and approval will be only for conformance with the design concept of the Project and for compliance with the information given in the Project plans and specifications and shall not extend to means, methods,techniques,sequences,or procedures of construction,or to safety precautions or programs incident thereto. b. AECOM's review and approval of Shop Drawings or other data shall not relieve the contractor(s)from responsibility for any variation from the requirements of the plans and specifications unless the contractor(s)has, in writing,called AECOM's attention to each such variation at the time of submission and AECOM has given written approval of each such variation by a specific written notation incorporated into or accompanying the Shop Drawing or other data Approval by AECOM will not relieve the contractor(s)from responsibility for errors or omissions in the Shop Drawings or other data. c. AECOM will accept Shop Drawings or other data submittals only from the contractor(s)required by the Project contract documents to furnish the Shop Drawings or data. AECOM will reasonably promptly review and approve, Conssf.98k(Aug 13, 1998) CDBG consulting-agreement-and-authorization-to-proceed 5 or take other appropriate action in regard to,Shop Drawings or data properly submitted to AECOM. Section 12: Allocation of Risk a. IN NO EVENT SHALL AECOM BE LIABLE,WHETHER IN CONTRACT,TORT,OR OTHERWISE,FOR CLIENT'S LOSS OF PROFITS, DELAY DAMAGES,OR FOR ANY SPECIAL,INCIDENTAL,OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY NATURE ARISING AT ANYTIME OR FROM ANY CAUSE WHATSOEVER. b. Subject to any limitations contained in Sec.893.80 and any similar statute,of the Wisconsin Statutes,the City further agrees to hold AECOM harmless from any and all liability,including claims,demands,losses,costs, damages,and expenses of every kind and description(including death),or damages to person or property arising out of reuse of the documents without consent where such liability is founded upon or grows out of the acts or omission of any of the officers,employees or agents of the City of Oshkosh while acting within the scope of their employment. c. Under no circumstances shall AECOM be liable for extra work or other consequences due to changed conditions or for costs related to failure of the construction contractor or materialmen or service providers to install work in accordance with the plans and specifications. d. Notwithstanding any other provision of this Agreement,it is further agreed that to the fullest extent permitted by law the Client shall indemnify and hold harmless AECOM and its employees,agents,contractors and consultants from and against all claims,damages,losses and expenses,direct and indirect,or consequential damages, including but not limited to attorneys'fees and all Court,arbitration or other dispute resolution costs, arising out of, resulting from,or related to the presence and/or involvement of hazardous substances,including hazardous waste,at the Project site or contained in samples collected by or received by AECOM from the Project site The indemnification set forth in this paragraph 12.e.extends to claims against AECOM which arise out of,are related to,or are based upon,the dispersal,discharge,escape, release,spillage or saturation of smoke,vapors,soot,fumes,acids, alkalis,toxic chemicals,liquids,gases or any other material,irritant, contaminant or pollution in or into the atmosphere, or on: onto,upon, in or into the surface or subsurface(a)soil, (b)water or watercourses,(c)objects,or(d)any tangible or intangible matter,whether such event or circumstances is sudden or not Nothing in this Paragraph 12.e.is intended to indemnify,or shall be construed as indemnifying,AECOM with respect to claims, losses,expenses or damages to the extent caused by AECOM's own negligent acts or omissions. Section 13: Liability Insurance a. AECOM shall abide by the document entitled'INSURANCE REQUIREMENTS FOR" PR"PROFESSIONAL y requires LIABILITY"PROVIDERS FOR CITY OF OSHKOSH'(a copy of which is specific inclusions of coverage in addition to that obtained by AECOM, or increased limits of liability in AECOM's liability policies,the cost of such inclusions or increased limits shall be borne by the City.The City agrees to provide liability protection for its officers,employees and agents while acting within the scope of their employment. Subject to any limitations contained in Sec. 893.80 and any similar statute,of the Wisconsin Statutes,the City further agrees to hold AECOM harmless from any and all liability,including claims,demands, losses,costs,damages,and expenses of every kind and description (including death),or damages to person or property ortg of or in connection grows out of the actswith r omission lof anyduring of the officers,employees or agents where of such of Oshkosh while acting within the scope of their employment. Section 14: Dispute Resolution a. All claims,disputes,controversies or matters in question arising out of,or relating to this Agreement or any breach thereof,including but not limited to disputes arising out of alleged design defects,breaches of contract, errors,omissions,or acts of professional negligence,(collectively"disputes")shall be submitted to mediation before and as a condition precedent to any other remedy. Upon written request by either party to this Agreement for mediation of any dispute,Client and AECOM shall select by mutual agreement a neutral mediator. Such selection shall be made within ten(10)calendar days of the date of receipt by the other party of the written request for mediation. In the event of failure to reach such agreement or in any instance when the selected mediator is unable or unwilling to serve and a replacement mediator cannot be agreed upon by Client and AECOM within ten (10)calendar days,a mediator shall be chosen as specified in the Construction Industry Mediation Rules of the American Arbitration Association then in effect. b- Notwithstanding any other provisions of this Section 14,in no event shall a demand for mediation be made more than two(2)years from the date the party making demand knew or should have known of the dispute or six(6) years from the date of substantial completion of AECOM's participation in the Project,whichever date shall occur earlier. c. All mediation or arbitration shall take place in the City of Oshkosh,Wisconsin, unless Client and AECOM agree Conssf.98k(Aug 13, 1998) 6 CDBG consulting-agreement-and-authorization-to-proceed otherwise. The fees of the mediator or arbitrator(s)and the costs of transcription and other costs incurred by the mediator or arbitrator(s)shall be apportioned equally between the parties. Section 15: Termination a. This Agreement may be terminated by either party upon at least seven(7)days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. Such termination shall not be effective if that substantial failure has been remedied before expiration of the period specified in the written notice. The only exceptions to this seven-day written notice condition are AECOM's rights to terminate this Agreement as set forth in Sections 1,4 and 8 of the Agreement. b. In addition,AECOM may terminate this Agreement if the Client suspends AECOM's services for more than sixty (60)consecutive days through no fault of AECOM. c. If this Agreement is terminated,AECOM shall be paid for services performed prior to the termination date set forth in the notice plus termination expenses. Termination expenses shall include personnel and equipment rescheduling and re-assignment adjustments and all other related costs incurred directly attributable to termination. Section 16: Employment a. Client agrees that,prior to the completion of AECOM's services on the Project, Client and its officers,agents or employees shall neither(1)offer employment to AECOM's employees,(2)advise AECOM's employees of employment opportunities with Client,Client's parent or affiliate organization(s), if any, nor(3)inquire into employment satisfaction of AECOM's employees. Section 17: Independent Contractor a. The relationship between the Client and AECOM created under this Agreement is that of principal and independent contractor. Neither the terms of this Agreement nor the performance thereof is intended to directly or indirectly benefit any person or entity not a party hereto and no such person or entity is intended to be or shall be construed as being,a third-party beneficiary of this Agreement unless specified by name herein or in an Amendment hereto,executed by AECOM's authorized representative. Section 18: Severability a. In the event that any provision herein shall be deemed invalid or unenforceable,the other provisions hereof shall remain in full force and effect, and binding upon the parties hereto. Section 19: Section Headings a. The heading or title of a section is provided for convenience and information and shall not serve to alter or affect the provisions included herein. Section 20: Survival a. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between the Client and AECOM shall survive the completion of services and the termination of this Agreement. Section 21: Assigns a. Neither the Client nor AECOM may delegate,assign,sublet or transfer its duties, responsibilities or interests in this Agreement without the written consent of the other party. Section 22: Choice Of Law a. This Agreement shall be governed by the law of the State of Wisconsin. Section 23: Written Notice a. Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the last business address known to the party giving notice. Conssf 98k(Aug 13, 1998) CDBG consulting-agreement-and-authorization-to-proceed 7 City of Oshkosh Stormwater Pollution Analysis Update Scope of Services A. BACKGROUND Stormwater pollution from the City of Oshkosh's stormwater conveyance system is regulated under a Wisconsin Department of Natural Resources (WDNR) permit(known as the MS4 permit). The permit became effective in January 2007 and the permit requires the City calculate the quantity of stormwater pollution (sediment as Total Suspended Solids [TSS] and Total Phosphorus [TP])from the City's system under: "base" and "existing" conditions as described below. In December 2008 the City completed a stormwater pollution modeling analysis under a WDNR funded grant. The City of Oshkosh Citywide Stormwater Management Plan and Ordinance Development(2008 Plan) reported that the level of TSS reduction at that time was 17.3% compared to the base level conditions. Since that time, the WDNR has implemented new policies and procedures for the stormwater pollution analysis requirements under the MS4 permit. Also, the City has implemented several stormwater pollution control practices. The scope of work(below)will utilize as much information as possible from the 2008 Plan, incorporate the practices constructed since 2008, and update the modeling to meet current WDNR requirements. In the State of Wisconsin Budget Amendment Bill of June 2011, the state legislature removed the requirement of achieving a 40%TSS reduction from a base level. However, the preparation of the Upper Fox River TMDL is currently underway(which includes the City of Oshkosh). Based on the recently completed Lower Fox River TMDL it is anticipated that urban areas in the Upper Fox River Basin will be subject to TSS and/or TP control levels equal to or higher than those required under NR 151. B. SCOPE OF WORK Task 1.0 Meetings Three face-to-face meetings with City staff and AECOM staff are budgeted during the course of the project. The first meeting is anticipated following Task 3. The second meeting is expected to occur during Task 4 to fine tune the proposed stormwater control practices (SCPs) prioritization. The third meeting is not scheduled and will occur when deemed appropriate by the City and AECOM. If requested by the City, representatives from the other permitted entities within the Urbanized Area, or other project stakeholders (such as DNR) may participate in the meetings. Work under this task includes all meeting preparation, attendance, and meeting summary notes. The budget for this task also allows for three (3)web-based meetings over the course of the project. Task 2.0 Re-establish Base Load using Most Recent WDNR Guidance AECOM will conduct the following subtasks to re-establish the City's base pollutant load: 2.1 Re-assess and Modify Winnebago County MS4 areas Winnebago County also holds an MS4 permit. During the 2008 analysis,Winnebago County Highway MS4s were included in the City's base pollutant load calculation (other County MS4 areas such as the fairgrounds were removed from the base load calculation.) Since 2008 Winnebago County conducted a pollution loading analysis on its MS4's including their highway system. AECOM also conducted a County Highway pollutant load analysis for the City of Oshkosh in 2010. AECOM will review the County MS4 highway analysis and the analysis conducted by AECOM for the City, and work with the City to determine which MS4 areas will become the responsibility of the City and which will stay the responsibility of the County. 2.2 Review GIS data per WDNR Guidance AECOM will compare the analyzed area in the 2008 Plan to the guidelines in the current WDNR guidance and modify where needed. AECOM will rely on City staff review of data to aid in the process. Examples of areas that will be reviewed include: • October 2004 Land Use Oshkosh SW Pollution Analysis Update Scope.docx Page 1 of 6 City of Oshkosh Stormwater Pollution Analysis Update Scope of Services • Undeveloped lands as of October 1, 2004 • Industrial permitted land • Other permitted land (such as UW-Oshkosh and Winnebago County) • Agricultural land • DOT right-of-way areas within the municipal boundary • Riparian lands with no MS4 discharge 2.3 Revise Land Use Coverage to be Graphical During the 2008 Plan, the land use was applied to WinSLAMM in a"tabular"format, because, at the time, it was the most efficient way to conduct an analysis. The land use will be converted to a graphical format for this update. To use a graphical land use cover, the road right-of-way will be allocated to the adjacent parcels as a continuous polygon in a GIS format. The advantages of conducting this task are: 1) more efficient updating future land use changes or corrections; 2) more efficient map production; and 3)the GIS files will be more easily usable by the City. 2.4 Update Watershed Boundaries AECOM used the existing watershed delineations for the 2008 Plan. Since the time of the study, several watershed boundaries have been modified based on more detailed hydrologic/hydraulic studies. AECOM will incorporate the updated watershed boundaries for this analysis. The update will also include changes where detention basins have been designed since the 2008 Plan. 2.5 Re-run Base Conditions The WinSLAMM stormwater pollution model (version 9.4 or newer)will be used to analyze the stormwater pollution discharged from the City's regulated MS4(Municipal Separate Storm Sewer System). AECOM will also run WinSLAMM for base conditions on the non-MS4 urban lands within the City's 2012 municipal boundary and report the results separate from the MS4 regulated lands. This is being done to better match anticipated TMDL urban analyses. Base conditions are defined by NR 216 and subsequent policy memos from the WDNR. AECOM will conduct this analysis in accordance with the Administrative Code and WDNR guidelines. In general, the "base conditions" represent the urban stormwater pollution that existed under the land use conditions as of October 1, 2004, with no stormwater control practices in place. The TSS loading under base conditions establishes the "benchmark" against which TSS reductions are measured. The results for the study will be reported for both TSS and TP in accordance with the MS4 permit. Task 3.0 Re-establish Existing Conditions Load AECOM will conduct the following subtasks to re-analyze the pollution reduction achieved by the City's existing stormwater control practices. Practices in existence or under design as of June 2012 will be included in the analysis. 3.1 Conduct Infiltration Testing of Existing Swales AECOM will conduct field infiltration testing of the existing grass swales. The purpose of the testing will be to determine the swale infiltration rate that will be used in the WinSLAMM model. In absence of field measured rates, the rates published in WDNR Technical Standard 1002 must be used. Experience has shown that the field measured rates are higher than the published values in Technical Standard 1002. AECOM will follow the guidelines published by the WDNR for evaluating grass swale pollution control capabilities. For this subtask, AECOM will: Oshkosh SW Pollution Analysis Update Scope.docx Page 2 of 6 City of Oshkosh Stormwater Pollution Analysis Update Scope of Services 1) Review the available GIS data, hard copy maps, and soil survey data to select up to ten locations within the City for testing. 2) Submit the proposed testing sites and procedures to WDNR to obtain approval before proceeding with the field work. 3) Conduct the field work in compliance with WDNR guidelines at up to ten locations. 4) Summarize and format the data collected during the field work. 5) Provide the results of the testing to WDNR for their review and approval. 3.2 Update Grass Swale Performance Once AECOM receives WDNR approval of measured infiltration rates from subtask 3.1, AECOM will incorporate the updated infiltration rates into the WinSLAMM model and re-calculate the pollution control effectiveness of the existing swales using the field test infiltration results. 3.3 Add Stormwater Lift Stations (2) The City has two (2) stormwater lift stations. Stormwater lift station sumps can be modeled as catch basin with sumps, and the associated pollution reduction can be credited towards the City's base pollution load. AECOM will model the stormwater lift station sumps as part of this study. 3.4 Update Catch Basins with Sumps The 2008 Plan included catch basins with sumps that were in place at the time of the study. AECOM will add the catch basins with sumps that have been constructed since the completion of the 2008 Plan. AECOM will update the modeling for the catch basin with sumps to WinSLAMM version 9.4 or newer. As part of this task AECOM assumes that data regarding catch basin location will be provided by the City. 3.5 Update Street Sweeping At the time of the 2008 Plan, street sweeping was conducted on the majority of the streets every other week, and in the downtown area, once per week, spring through fall. Since the completion of the 2008 study, the City has implemented an enhanced street cleaning program. The enhanced program will be re-modeled and reported as an existing stormwater control practice. 3.6 Model all Existing Wet Detention Basins included in 2008 Plan (31 basins) The 2008 Plan accounted for 31 existing wet detention basins which were both publically and privately owned. For the 2008 plan, a basin was assumed to have an 80%TSS reduction if it met the requirements of WDNR Wet Detention Pond Technical Standard 1001 for permanent pool size (relative to the basin's watershed), depth, and outlet structure. Generally Technical Standard 1001 is conservative and when basins are modeled, they can achieve a TSS reduction higher than 80 percent. In 2008, only those basins that did not meet the requirements of Technical Standard 1001 were modeled using WinSLAMM. AECOM will model all 31 wet detention basins using the WinSLAMM version 9.4 or newer and/or WinDETPOND for purposes of determining their respective TSS control efficiencies. The following thirty one (31) basins were included in the 2008 Plan and will be modeled under this task: Oshkosh SW Pollution Analysis Update Scope.docx Page 3 of 6 City of Oshkosh Stormwater Pollution Analysis Update Scope of Services 1) NRWP1 -Community Church Inc. 16) NRWP18 -Washburn St 2) NRWP11 - Multi-Circuits West 17) NRWP20 - EAA 2 3) NRWP16- Blue Rock Properties 18) NRWP21 - EAA 1 4) NRWP17-Sioux Prop. Man. Inc. 19) NRWP22- EAA 3 5) NRWP2 - NW Ind. Park 20) NRWP25- EAA 5 6) NRWP3- Fair Acres/Murdock 21) RDVWP1 -2800 N Main St Redevelopment 7) NRWP4-Turn Key Auto 22) RESWP2- N. Shore Preserve West Basin North 8) NRWP5- Evergreen Manor Inc. 23) RESWP5-N. Shore Preserve East Basin 9) NRWP6-Aurora Medical Center 24) RESWP1 - N. Shore Preserve Central Basin 10) NRWP7A- Mercy Hospital Tower Basin 25) RESWP4- N. Shore Preserve West Basin South 11) NRWP7B - Mercy Hospital North Basin 26) RESWP7 -Quail Run Farms Basin A 12) NRWP8A- New Life Church Basin 3 27) RESWP6-Quail Run Farms Basin B 13) NRWP8B- New Life Church Basins 1, 2, &4 28) RESWP3-Village Green 14) NRWP9 - Mercy Hospital South Basin 29) RESWP8-Sawyer Creek 15) NRWP19-Target Complex 3.7 Model Stormwater Detention Basins Installed or Designed After 2008 Plan Since the 2008 Plan, five(5) new detention basins are under contract for design or have been constructed. The basins were modeled in the version of WinSLAMM that the 2008 Plan used because WDNR guidelines require that the stormwater control practices are modeled in the same version as was used for the Citywide plan. The modeling for the five new basins will be updated to WinSLAMM version 9.4 or newer, and will be based on the actual design for each basin. The detention basins listed below will be analyzed under task 3.7: 1) Oakwood Road Wet Detention Basin 2) North High School Area Wet Detention Basin 3) Westhaven Clubhouse Area Wet Detention Basin 4) 9th&Washburn Area Wet Detention Basin 5) Armory Area Wet Detention Basin 3.8 Model up to ten (10) other Stormwater Control Practices not included in the 2008 Plan Since the 2008 Plan the city has constructed at least four(4) biofilters identified below. 1) 400 E. Main Parking Lot 3) Marion/Pearl RDA 2) Otter Ave. Parking Lot 4) The Rivers AECOM will model and include under the"existing conditions" analysis the four listed biofilters and up to six(6)additional stormwater control practices that were not included in the 2008 Plan and not listed under Tasks 3.1 —3.7. It is assumed that the City will identify the additional practices and provide the information necessary to conduct the modeling. 3.9 Summarize Existing Results AECOM will model annual loadings of stormwater pollutants for Total Suspended Solids (TSS)and Total Phosphorus (TP) using WinSLAMM for the City's existing stormwater control practices. The results will be presented in the following formats: 1) Tabular a. Base TSS and TP load for each watershed b. Existing TSS and TP annual load for each watershed 2) Graphical a. GIS maps of base TSS load by watershed, and by load/acre/yr for each watershed b. GIS maps of existing TSS load by watershed, and by load/acre/yr for each watershed Task 4.0 Evaluation of Proposed Stormwater Control Practices Identified in the 2008 Plan and Proposed Stormwater Control Practices Oshkosh SW Pollution Analysis Update Scope.docx Page 4 of 6 City of Oshkosh Stormwater Pollution Analysis Update Scope of Services 4.1 Update Proposed Stormwater Control Practice Evaluation A total of twenty seven (27) sites were evaluated for potential new wet detention basins in the 2008 Plan. Of the twenty seven sites, eighteen (18)were selected for final evaluation and nine(9)were deemed "not feasible". Since the 2008 Plan, new information may change the construction feasibility of the 2008 proposed wet detention basins and those identified as"not feasible". AECOM will update the evaluation of all 27 sites based on the new information. The new considerations will include Council decisions regarding the site(s)and changes in DNR permit policies that have occurred since 2008. Engineered swales and biofiltration devices were evaluated on a unit load reduction basis in the 2008 Plan. The evaluation will be updated using WinSLAMM version 9.4 or newer, and the most recent WDNR policy memos regarding biofilter pollution control effectiveness. 4.2 Update TSS and TP Removal for Proposed Stormwater Control Practices AECOM will update the Total Suspended Solids and add the Total Phosphorus loads for the 27 proposed stormwater control practices identified in the 2008 Plan. If the practice was designed or constructed since the 2008 Plan, it will be so noted. This evaluation only includes the re-modeling of the potential wet detention basins for TSS and Total Phosphorus pollution control potential. 4.3 Update Stormwater Control Practice Cost Estimates The 2008 Plan included cost estimates for the proposed stormwater control practices. The cost estimates will be updated with information from the most recent bid tabs for other stormwater projects within the City and surrounding area. Specifically, tables ES-2, 5-5, 5-7, and 5-8 from the 2008 Plan will be updated under this task, 4.4 Revise Alternative Evaluation Matrix AECOM will update the Alternative Evaluation Matrix created for the 2008 Plan (Tables 5-2A and 5-2B of the 2008 Plan.) The matrix will be updated with the revised loadings, updated costs, updates in ownership of land, etc. The proposed stormwater control practices will be re-scored and then re-ranked. 4.5 Update Proposed Redevelopment Areas There are areas within the City of Oshkosh that have planned redevelopment. Redevelopment will be subject to the post-construction standards of NR151. The 2008 Plan included the pollution reduction that will be achieved by these sites when they re-develop. AECOM will update the analysis based on the most recent WinSLAMM version 9.4 or newer, WDNR Guidance, NR151, and the City's updated re- development plans. 4.6 Update Implementation Schedule AECOM will update the implementation schedule created for the 2008 Plan. Task 5 Update City's Stormwater Management Ordinances AECOM will update the City's Stormwater Management Ordinance to be consistent with the current NR151 (as adopted December 2010). Specifically, AECOM will draft a new Chapter in the Municipal Code to incorporate: 1) Definitions 2) Storm Water Utility(no change in current language) 3) Construction Site Erosion Control (to meet revisions to NR 151) 4) Post-Construction Stormwater Management(to meet revisions to NR 151) 5) Illicit Discharge and Connection to the City Storm Sewer System Oshkosh SW Pollution Analysis Update Scope.docx Page 5 of 6 City of Oshkosh Stormwater Pollution Analysis Update Scope of Services Task 6 Prepare Report AECOM will prepare a report which: 1)documents modeling methodology, 2)compiles annual TSS and TP pollution loadings into an appropriate tabular format, 3) documents the pollution control (TSS and TP) achieved by existing management measures, and 4)summarizes the potential new stormwater control practice removal efficiency and cost. The report will also contain maps displaying the results of the modeling; and the potential locations of proposed stormwater control practices. The City will review this report before it is finalized. AECOM will provide 2 hard copies of the draft report for City review. AECOM will provide 5 hard copies and a complete copy in an Adobe format of the final report to the City. In addition, AECOM will provide GIS files prepared under this scope of work as requested by the City. C. ASSUMPTIONS 1. The City shall furnish AECOM all available maps, orthophotographs, stormwater conveyance system drawings, stormwater management plans, parcel graphical and tabular data, and other relevant stormwater management data, all of which may rely upon without independent verification in performing the Scope of Work. It is also assumed that the above information will be provided at no cost to the project. Data files will be provided digitally to AECOM if available or paper copy format(if a digital format is not available). 2. Some information provided by the City may be inaccurate or unreliable. AECOM cannot be responsible for inaccuracies in the data supplied by the City. Field verification of the data is not included in the Scope of Work. 3. For infiltration rate testing (Task 3.1)the City will provide efficient access to water sources to conduct the testing. This may include; access to a hose bib(s)at a central location such as a public works yard or city park(s). 4. The implementation task(Task 4.6)does not include detailed evaluation of the City's Stormwater Utility rates. Rate analyses are conducted annually under a separate. 5. Preparation of design plans, specifications, or construction documents are not included in this scope of work. D. Budget CLIENT will pay on a time and materials basis according to the cost estimate. The total authorized contract value is$135,763, and AECOM will not exceed this amount without prior written authorization. Upon reaching this limit, AECOM will stop performing work until such time that CLIENT authorizes such additional work to proceed. Estimated # Task Hours Budget 1.0 Meetings 88 $11,043 2.0 Re-establish Base Load 216 $20,847 3.0 Re-establish Existing Conditions Load 492 $46,580 4.0 Evaluation of Stormwater Control Practices 316 $31,345 5.0 Update City's Stormwater Management Ordinances 90 $10,903 6.0 Prepare Report 148 $15,045 Total: 1,350 $135,763 Oshkosh SW Pollution Analysis Update Scope.docx Page 6 of 6