RFQ 18-093-08 Fish Creek Wetland Restoration.pdf

Request for Statements of Qualification (RFQ)

RFQ # 18-093-08

Design for Fish Creek Slough Culvert Installation Project

Wisconsin DNR – Office of Great Waters December 21, 2017

INTRODUCTION

Fish Creek and its sloughs constitute one unit of the State of Wisconsin’s South Shore Lake Superior Fish and Wildlife Area. The goal of the property group is to enhance the stream and coastal habitat and to provide public recreation and education opportunities. The drowned mouth of Fish Creek and its associated wetlands occupy the head of Chequamegon Bay. In the area locally known as Long Bridge, an abandoned road severs the connection between a portion of the slough and Lake Superior (Map 1). While no longer used by vehicles, the raised roadbed provides walk-in access to public land. The goal of this project is to re-establish the hydraulic connection between Lake Superior and the wetland inshore of the roadbed to allow water level fluctuation. Properly sized and placed culverts may restore the hydraulic connection between the wetland and Lake Superior’s Chequamegon Bay.

The Office of Great Waters (OGW) at the Wisconsin Department of Natural Resources (WDNR) is seeking Statements of Qualifications from qualified consultants for environmental engineering services to develop a restoration design plan that will restore site hydrology and wetland characteristics of Fish Creek Slough.

Map 1. Project location in the in the Town of Barksdale, Bayfield County, WI.

General location of road blocking water flow between bay and stranded wetland

Restore wetland hydrology to this general area

SCOPE OF SERVICES

The overall project will be implemented in two phases. This RFQ is for phase 1 of the project.

Phase 1 of the project to develop the design plans that will restore site hydrology and wetland characteristics of the nearby Fish Creek Slough. Phase I will include evaluating existing data and conducting field surveys as needed to create a feasibility assessment illustrating the size and contour of the reconnected wetland at typical water levels in Lake Superior. Phase 2 of the project will include implementation of the selected restoration approach. The contract for the selected engineer may be extended to assist in bid document preparation and engineering oversight for the implementation of phase 2 of the project.

Phase 1 engineering services will include development of at least 2 design alternatives that specify the size, elevation and number of culverts that will restore the hydraulic connection between Lake Superior and the wetland stranded behind the abandoned roadway. Design alternatives will describe the expected resulting wetland community as a result of the restoration. Design alternatives must take into consideration water level fluctuations in Lake Superior. Anticipated changes in wetland community at a range of water levels with different culvert placements will be described. The selected vendor will be responsible for using existing data or collecting the necessary field measurement to propose design alternatives and a final design. Additional site data needed may include, but is not limited to: surveying, hydrologic and hydraulic modeling, and floodplain modeling. A project team convened by the WDNR will review plans and select a desired alternative. Final design plans will be developed for the selected alternative and should include construction plans and specifications adequate for bid and construction. The final design plans should include construction flow management, traffic control, staging and access routes. The consultant will prepare a list of any local, state, and federal permits that may be required to carry out the project. The selected firm will not be required to complete permits, but may be required to supply design information required for permitting. Environmental permitting will be completed by the Department. Costs for implementation of a selected alternative will be estimated.

The selected vendor will provide all labor, tools, supplies and equipment necessary to conduct field investigations and prepare construction plans and specifications. The following information will be provided to the selected contractor.

LIDAR data gathered in 2015 along Wisconsin’s Lake Superior coast. Available LIDAR derived products include 2-foot contour, LAS bare earth points, and a digital terrain model in a raster grid.

General characterization of the influence of variable levels of Lake Superior on inland areas is available at https://www.coast.noaa.gov/llv/

Safe access to the site will be available to selected contractor.

General Specifications:

1. Conduct field investigations necessary to develop restoration design plans. These may include:

a. Topographic survey of the area.

b. Clearly identify property boundaries at the project site.

c. Conduct a survey to describe existing wetland community types in the area that will receive restored hydrology,

d. A general evaluation of the access road should be conducted to determine if improvements will be required.

2. Analyze site data and present at least 2 design ideas (number, placement and location of culverts) to determine the appropriate approach for wetland restoration that will connect the wetland to Lake Superior. Design ideas do not need to be formally prepared in a design report, but should be well presented and articulated. The extent of area influenced by culvert placement and the anticipated changes in wetland community with each alternative should be described. Planning level cost estimates for each alternative should be prepared. The WDNR will make a final decision on selected alternative.

3. For the selected alternative, prepare a final design report and a set of construction plans and specifications adequate for bid and construction. Final design and construction plans will restore hydrology and wetland habitat that is connected to Lake Superior.

Construction costs will be estimated in a separate document from the plans and specifications. Final design plans should describe 1) the extent of area influenced by altered hydrology with culvert installation 2) anticipated water depths at a range of Lake Superior water levels and 3) anticipated shift in wetland community type.

Final deliverables

Concise report with results of any field investigations and a summary of available site data to be used in design.

Presentation and summary briefing of conceptual design alternatives including rough cost estimates.

A design report for the selected alternative that includes description of existing conditions and topography, proposed culvert placement, erosion control and water control, revegetation and construction site access plan. Design report to include a list of any local, state, and federal permits that may be required to carry out the project.

Electronic and two hard copies provided.

Final construction plans and specifications adequate for bid and construction. Electronic and two hard copies provided.

Detailed cost estimate to complete the project during phase 2 (the implementation phase) of the project.

Summary of wetland vegetation community type likely to occur without additional planting.

Timeframe:

Project duration: January 1, 2018 through December 30, 2018

Design contractor SOW completed February 2018 Field surveys and modeling June 2018 Develop design alternatives for crossings June 2018 – July 2018 Present alternatives to project team August 2018 Construction designs for preferred alternative August - September 2018 Project team review of final design October 2018

Final design report, all deliverables due December 30, 2018

Reporting:

Quarterly reporting for grant requirements will be completed by WDNR. The selected vendor will be required to provide the following information for quarterly reporting:

Project budget and amount of the funds expended to date (this can be approximate if an invoice is not yet available);

Activities completed this quarter, for example: meetings held, progress made on deliverables, etc.;

Problems/Issues: Note any issues or concerns for completing the project on time or within budget; problems encountered; other concerns. State whether the project is on track for completion by the end date; and, Activities planned for next quarter.

CONTRACT REQUIREMENTS

Each selected consultant will be provided with a copy of DNR’s standard Professional Services Contract (Attachment 1). If the firm cannot agree with DNR’s contract provisions, DNR may choose to select another consultant. DNR will not negotiate contract language.

Eligible Program Costs

The consultants that submit their qualifications to the DNR under this RFQ do so recognizing the following specific contract requirements.

Copyrighted Material

No documents or information that is developed and paid for under this initiative for the DNR may be copyrighted by any environmental consultant.

Utilization of Small, Minority and Women’s Business Enterprises

The Bidder shall make every effort to award a minimum of 5% of the work to minority business enterprises. The Bidder will be required to submit a report to the Department which will identify the minority business enterprises to whom the work was awarded and the value of said work. A current list of minority business enterprises may be obtained from:

The State of Wisconsin Department of Administration Minority (MBE) and Disabled Veteran Owned Business (DVB) Certification Program

Minority Business Certification Program 101 E Wilson St, 6th Floor PO Box 7970 Madison, WI 53707 Tel: (608) 267-9550 Fax: (608) 267-0600 or at the following web link:

http://www.doa.state.wi.us/Divisions/Enterprise-Operations/Supplier-Diversity-Program

Minority Business Enterprise (MBE) means: "a sole proprietorship, partnership, joint venture, or corporation which is certified by the Wisconsin Department of Development to be 51% owned, controlled and actively managed by a Black, Hispanic, American Indian, Eskimo, Aleut, Native Hawaiian, Asian Indian, or a person of Asian-Pacific origin. The business must also be currently performing a useful business function."

CONTRACTOR SELECTION PROCESS

WDNR is seeking SOQs from firms to evaluate their ability to perform the services outlined above. Once the SOQs are received and evaluated, the top rated firms will then be invited to submit a formal proposal for services. A separate Request for Proposals will be issued to selected firms.

STATEMENT OF QUALIFICATIONS SUBMITTAL FORMAT

In order to simplify the DNR’s review process and to obtain the maximum degree of comparability, Statements of Qualifications (SOQ) should be submitted in the following sequence/format. The submittal should be in 11 point, Arial font. Failure to comply with these requirements may be cause for the SOQ to be considered nonresponsive and not receive further consideration.

1. LETTER OF TRANSMITTAL (maximum of 2 pages)

This letter should be signed by the proposed Project Manager and one Principal, and should state concisely, in less than two pages, the proposer’s understanding of the work to be performed, and the unique abilities of the firm to perform the work most effectively for the DNR.

2. TITLE PAGE (1 page)

The title page should state that it pertains to:

Request for Statements of Qualification (RFQ) 18-093-08 Design for Fish Creek Slough Culvert Installation Project

Wisconsin DNR – Office of Great Waters

DATE, 2018

It must include the name of the proposing firm, address, telephone number, name and email address of the proposed Project Manager, and the submittal date.

3. TABLE OF CONTENTS

The table of contents should identify the material by section, the beginning and ending page numbers of each section, and all appendices.

4. APPENDICES

4.1 FIRM PROFILE (maximum of 2 pages)

In this section, proposers shall describe, in less than 2 pages, the firm and the range of services that the firm provides directly related to this RFQ. Emphasis should be on experience with coastal wetland hydrology, coastal wetland restoration and environmental engineering. In addition proposers should complete and include with their submission the attached Vendor Information form (DOA-3477).

4.2A QUALIFICATIONS (maximum of 3 pages)

In less than 3 pages, proposers shall describe the pertinent qualifications of the proposed project manager (PM), the proposed project team, any proposed subcontractors. One of the three pages shall be the PM’s resume.

4.2B RELATED EXPERIENCE (maximum of 10 pages)

This section may include resumes or summaries of qualifications and experiences of other project team members specific to the members of this team versus the firm, and project descriptions of projects completed since January 1, 2007 only, for:

1. Restoration of coastal wetlands in the Great Lakes.

2. Surveying wetland community type and delineation

3. Hydrologic and hydraulic modeling

4. Floodplain modeling and mapping

5. Experience with staging and construction flow management

6. Real estate analysis including ROW and easement access.

7. A minimum of three (3) non-DNR, client contact, professional references and the name and telephone number of a person to contact for each. References should be related to design and engineering work conducted for those entities.

SOQ SUBMITTAL REQUIREMENTS

Contractors must submit their completed RFQ packages by email in a single .pdf document to Richard Straub, WDNR Purchasing Agent, at richard.straub@wisconsin.gov. Bids must be submitted by close of business on Wednesday, January 17, 2018 to be considered. Late or incomplete RFQ packages will be rejected.

AWARD CRITERIA

SOQ reviews will be conducted by the DNR based on the objectives of this DNR initiative as laid out in this RFQ.

OTHER

1. Proposers are specifically directed not to contact any DNR or OGW staff for questions, meetings, conferences or technical discussions that are related to this RFQ. Unauthorized contact with any DNR personnel will be cause for rejection of the SOQ.

2. RFQ Questions: The deadline for submitting written questions regarding this RFQ is no later than January 5, 2018. Questions are to be submitted to Richard Straub, WDNR Purchasing Agent, at richard.straub@wisconsin.gov via e-mail. Questions submitted by telephone will not be accepted. WDNR will provide answers to the written questions submitted via email.

3. Incurred Costs: Those vendors submitting SOQs do so entirely at their own expense.

There is no expressed or implied obligation by the DNR to reimburse any individual or firm for any costs incurred in preparing or submitting responses, for providing additional information when requested by the DNR, or for attending and/or participating in any follow-up interviews and negotiation sessions.

4. Confidential Matters: Vendor Data: If any information submitted in the SOQ is considered confidential or proprietary, the proposer must identify this information by completing and including the Designation of Confidential and Proprietary Information form attached below, with their proposal, in accordance with statutory requirements.

5. Assignment: The proposer may not reassign any portion of the work that is awarded as a result of this RFQ, without prior written consent from the DNR.

PROCUREMENT SCHEDULE AND PROCEDURES-

Key Proposed Dates of Selection Procedure Include:

December 21, 2017 – RFQ available date January 5, 2018– Deadline for submitting written questions By January 17, 2018 – RFQ Closing Date-SOQ due date

Following the selection of qualified firms, the dates for the next steps listed below are approximate:

Week of January 17 – Selection of qualifying firms to submit SOW proposals Request for proposals issued by January 19, 2018 Deadline for RFP questions January 26, 2018 Proposals due February 12, 2018 February 14-15, 2018 – Proposer follow-up interviews February 16, 2018 – Selection of preferred consultant By February 26, 2018 – Completion of Contract and SOW By March 23, 2018– Contract award

* ALL dates are subject to change except for question submittal and RFQ due date.

Follow-up Interviews: The DNR estimates that three (3) to eight (8) of the top ranked firms will be invited to submit a formal proposal for services. A separate Request for Proposals (RFP) will be issued to selected firms. Follow-up phone or in person interviews and site visits may be included in the RFP process. The purpose of the interviews is to gather additional information to evaluate proposers on their abilities to provide the environmental consulting services requested by this RFQ. Proposers must be available for these follow-up interviews that will be scheduled during the afternoons of February 14th or 15th. The contractor’s PM and up to two additional representatives must be available for this interview.

Negotiations: After interviews and final evaluations are completed, the DNR may at its sole option open work scope and cost negotiations with two or more of the top-ranked proposers prior to award. The DNR also reserves the right to open negotiations with one or more alternate proposers if negotiations with one or more of the previously selected proposers are not successful. The DNR will not negotiate contract terms and conditions.

Rejection: The DNR reserves the right to reject any and all proposals, to waive any informality in the proposals that are received, to accept or reject any or all items in the proposal, and to award a contract to an environmental consulting firm in whole or in part.

Moreover, the DNR reserves the right to make no selection if the proposals are deemed to be outside the fiscal constraint or not in the best interests of the DNR.

Award: The DNR will select the respondents whose proposals best meet the DNR’s needs as defined in this RFQ. Contractual commitments are contingent upon the availability of funds, and the requirements of the site. All contracts are subject to the approval of the DNR’s legal counsel, and the DNR Secretary’s office prior to execution. Once awarded, the contract will be the final expression of the agreement between the parties and may not be altered, changed or amended except by mutual agreement, in writing.

Attachment 1

State of Wisconsin

DEPARTMENT OF NATURAL RESOURCES

Madison, Wisconsin

THIS AGREEMENT is made and entered into by and between the State of Wisconsin, hereinafter called the “State,” by its Department of Natural Resources, hereinafter called the “Department,” executing this Agreement, and ________________________________, hereinafter called the “Consultant,” for the work included in the Consultant’s Proposal specified in Section 34 of the General Terms and Conditions. Costs for the work shall be reimbursed in accordance with the attached proposal up to a maximum agreed amount NOT TO EXCEED

WITNESSETH

WHEREAS, the Department proposes development of a project, hereinafter named the “Project,” which is described as follows: Environmental engineering services to develop a restoration design plan that will restore site hydrology and wetland characteristics of Fish Creek Slough.

WHEREAS, the Department deems it advisable to engage the services of a Consultant to furnish professional services in connection with the Project.

WHEREAS, this contract is funded in part or wholly by a grant from the U.S. Environmental Protection Agency, CFDA #66.469. This procurement will be subject to regulations contained in 2 CFR 200.338 & 200.339.

Neither the United States nor the U.S. Environmental Protection Agency is a party to this agreement.

WHEREAS, the Consultant is bound to the US EPA Grant Agreement No. GL00E01893Terms and Conditions included as Addendum A of this Agreement and that in assessing the applicability of these Terms and Conditions the Department should be considered the “recipient.” It is the responsibility of the grantee to determine which, if any, of the Federal Administrative Conditions in Addendum A may be relevant to the grant agreement or their sub awards, and to apply them accordingly.

WHEREAS, the Department has authority as provided in Section 23.41 of the Wisconsin Statutes to engage such services.

WHEREAS, the Consultant has signified its willingness to furnish services for the Department.

NOW THEREFORE, in consideration of these premises and their mutual and dependent agreements, the parties hereto agree as set forth in the following pages which are annexed hereto and made a part hereof (Pages 1 to 23, inclusive).

IN WITNESS WHEREOF, the Department and the Consultant have executed this AGREEMENT.

_______(CONSULTANT)___________________

STATE OF WISCONSIN

DEPARTMENT OF NATURAL RESOURCES

By __________________________________ By ___________________________________

Title __________________________________

Title __________________________________

Date __________________________________

Date ___________________________________

GENERAL SERVICES AGREEMENT

GENERAL TERMS AND CONDITIONS

1. Affirmative Action.

2. Antitrust Assignment.

3. Applicable Law.

4. Approvals or Inspections.

5. Assignment.

6. Cancellation; Termination

7. Change Orders.

8. Deduction for Uncorrected Work.

9. Deliverables.

10. Disclosure.

11. Dispute Resolution.

12. Entire Agreement; Amendments.

13. Extra Work and Special Cases.

14. Force Majeure.

15. Guaranteed Delivery.

16. Indemnification; Liability.

17. Independent Contractor.

18. Insurance.

19. Inventions, Patents, Trademarks and copyrights.

20. Late Penalties.

21. No Waiver of Conditions.

22. Nondiscrimination.

23. Ownership of Documents.

24. Ownership of Wastes.

25. Payments.

26. Payment Terms and Invoicing.

27. Period of Agreement.

28. Project Management.

29. Records, Access.

30. Rejection of Defective Materials.

31. Release of Information.

32. Request for Payment; Progress Reports.

33. Safety.

34. Scope of Services to be Provided.

35. Site Access.

36. Data.

37. Standard of Performance.

38. Survival.

39. Successors and Assigns.

40. Tax Delinquency.

41. Taxes.

42. Testimony.

43. Titles.

44. Warranty.

THE CONSULTANT shall provide professional services for the Project in accordance with the terms and conditions of this Agreement.

1. AFFIRMATIVE ACTION. If the amount of this Agreement is $50,000 or more, the Consultant agrees to submit a written affirmative action plan to the Department within 15 business days after the Agreement commences if an acceptable plan is not already on file with the State of Wisconsin.

(Consultants with an annual work force of fewer than 50 employees are exempted from this requirement.)

Failure to comply with the conditions of this clause may result in the Consultant being declared an “ineligible” contractor, termination of the Agreement, or withholding of payment.

2. ANTITRUST ASSIGNMENT. The Consultant and the Department recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the Department.

Therefore, the Consultant hereby assigns to the Department any and all claims for such overcharges as to goods, materials or services purchased in connection with this Agreement.

3. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Wisconsin. The Consultant shall at all times comply with all federal, state and local laws, ordinances and regulations in effect during the period of this Agreement.

4. APPROVALS OR INSPECTIONS. None of the approvals or inspections performed by the Department shall be construed or implied to relieve the Consultant from any duty or responsibility it has for its professional performance, unless the Department formally assumes such responsibility through a letter from the Department expressly stating that the responsibility has been assumed.

5. ASSIGNMENT. Neither this Agreement nor any right or duty in whole or in part by the Consultant under this Agreement may be assigned, delegated or subcontracted without the written consent of the Department. If upon the written consent of the Department this contract or any right or duty in whole or in part is assigned, the Assignee(s) shall expressly agree to assume and perform all relevant obligations expressed under the terms of this contract and be bound by the terms and conditions of this contract.

Assignment in whole or in part of this contract does not absolve the Contractor of any liability or obligation expressed and agreed to hereunder.

6. CANCELLATION; TERMINATION.

A. The Department reserves the right to cancel this Agreement in whole or in part, without penalty, due to non-appropriation of funds or for the failure of the Consultant to comply with terms, conditions, or specifications of this Agreement.

B. The Department may terminate this Agreement for any reason at any time upon not less than 10 days’ written notice to the Consultant.

C. In the event of termination the Department shall pay the Consultant for that portion of the work satisfactorily performed prior to the date of termination.

D. If this Agreement is canceled or terminated by the Department for reasons other than the failure of the Consultant to comply with terms, conditions or specifications of this Agreement, the Consultant shall also be entitled to reasonable cancellation or termination costs relating to costs incurred by the Consultant for commitments which had become firm prior to the cancellation or termination.

E. Upon cancellation or termination under PARAGRAPH A. or B., above, the Consultant shall promptly discontinue all affected work (unless the notice of termination directs otherwise), and deliver or otherwise make available to the Department all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the Consultant in performing this Agreement, whether completed or in progress.

7. CHANGE ORDERS.

A. A change order is a written order to the Consultant signed by the Department, issued after the execution of this Agreement, authorizing a change in the work or an adjustment in the Contract Sum or the Contract Time. Change Orders may be initiated by either party at any time.

B. Changes in work shall be within the general scope of the Agreement, consisting of additions, deletions or other revisions; the Contract Sum and the Contract Time being adjusted accordingly. Complete documentation of additional work, cost changes, and contract time shall be provided to the Department by the Consultant.

C. No adjustments to the Contract Sum or the Contract Time may be made for any changes performed by the Consultant that have not been ordered by the Department.

8. DEDUCTION FOR UNCORRECTED WORK.

If the Department deems it expedient to accept defective work or work not performed in accordance with the Agreement, the difference in value, together with a fair allowance for the damages, may be deducted from the payments that are owed to the Consultant under this Agreement.

9. DELIVERABLES. Deliverables are defined as those items included in the Agreement’s time schedule.

10. DISCLOSURE. If a state public official (as defined under Section 19.42, Wisconsin Statutes), a member of a state public official’s immediate family, or any organization in which a state public official or a member of the official’s immediate family owns or controls a 10% interest, is a party to this Agreement, and if this Agreement involves payment of more than $3,000 within a 12 month period, this Agreement is voidable by the State unless appropriate disclosure is made according to Section 19.45(6), Wisconsin.

Statutes, before signing the Agreement. Disclosures shall be made to the State of Wisconsin Ethics Board, 44 E. Mifflin Street, Suite 601, Madison, Wisconsin 53703 (Telephone 608-266-8123).

11. DISPUTE RESOLUTION. In the event that a dispute arises between the Department’s project manager and the Consultant’s project manager, either party may request a conference between the Department’s Director of the Office of Great Waters and the Consultant’s project manager’s supervisor (or designee) to resolve the dispute.

12. ENTIRE AGREEMENT; AMENDMENTS.

This Agreement, together with the specifications in the proposal and referenced parts and attachments, shall constitute the entire agreement and previous communications or agreements pertaining to the subject matter of this Agreement are hereby superseded. Any contractual revisions including cost adjustments and time extensions may be made only by a written amendment to this Agreement, signed by both parties prior to the ending date of this Agreement.

13. EXTRA WORK AND SPECIAL CASES. If the Department desires to have the Consultant perform work or render services in connection with the project, other than provided for by the expressed intent of this Agreement, this will be considered as Extra Work, subject to a change order, or extension to this Agreement, setting forth the nature and scope thereof and the compensation therefor as determined by mutual agreement between the parties. Work under a change order or extension may not proceed unless and until it is authorized by the Department.

14. FORCE MAJEURE.

A. The Consultant shall cause all of its work to be performed within the time limits set forth in this Agreement unless performance is delayed by events that constitute a force majeure. For purposes of this Agreement, a “force majeure” is an event which is not foreseeable, is beyond the control of the Consultant and delays performance of any obligations required by this Agreement, including, but not limited to, delays caused by the Department, delays in obtaining property access or delays in obtaining any necessary permit or license after a complete application is made.

B. The Consultant shall notify the Department in writing no later than 5 calendar days after the discovery of any event which the Consultant contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken and to be taken by the Consultant to minimize the delay, and the timetable by which these measures will be implemented. The Consultant shall have the burden of demonstrating that the event is a force majeure. The Department shall promptly provide the Consultant with a written decision as to whether and why the event does or does not constitute a force majeure after receiving notification from the Consultant. If the Consultant does not agree with the findings of the Department project management staff, then a conference with the Department’s Director of the Bureau for Remediation and Redevelopment will be arranged with the Consultant to resolve the force majeure issue.

C. If the Department agrees that a delay is attributable to a force majeure, the time period for a performance under this Agreement shall be extended for a reasonable time period attributable to the event constituting a force majeure.

15. GUARANTEED DELIVERY. Failure of the Consultant to adhere to delivery schedules as specified or to promptly replace rejected materials shall render the Consultant liable for all costs in excess of the Agreement price when alternate procurement is necessary. Excess costs shall include the Department’s administrative costs.

16. INDEMNIFICATION; LIABILITY.

A. The Consultant agrees to save, keep harmless, defend and indemnify the State, the Department and all their officers, employees and agents, against any and all liability, claims and costs for injury to or death of any person or persons, and for loss or damage to any property (state or other) caused by or arising out of any willful misconduct, negligent act, error or omission by the Consultant or any of its agents, representatives, subcontractors or employees occurring in connection with or in any way incident to or arising out of performance of this Agreement. This PARAGRAPH does not apply to liability, claims and costs to the extent that they result from the willful misconduct, negligent act, error or omission of the State, the Department or their officers, employees or agents.

B. The Department recognizes and agrees that its employees are subject to liability as provided by

Sections 893.82 and 895.46, Wisconsin Statutes.

Therefore, its employee will be liable for their acts under these provisions and will not be acting on behalf of or as agents of the Consultant.

C. The Consultant guarantees that the use of equipment incorporated into the Project will not infringe any United States patent, and likewise that the use of any method in conjunction with the Project will not infringe any United States patent. The Consultant agrees that it will at its own expense defend every law suit which shall be brought against the State of Wisconsin for any alleged infringement of any patent and agrees that it will pay all costs, damages, and profits recoverable in any such suit. The Department agrees to promptly notify the Consultant of any such suit and deliver all papers relating to such suit to the Consultant.

17. INDEPENDENT CONTRACTOR. The Department agrees that the Consultant shall have sole control of the method, hours worked, and time and manner of any performance under this Agreement other than as specifically provided herein. The Department reserves the right only to inspect the job site or premises for the purpose of insuring that the performance is progressing or has been completed in compliance with the Agreement. The Department takes no responsibility for supervision or direction of the performance of the Agreement to be performed by the Consultant or the Consultant’s employees or agents. The Department further agrees that it will exercise no control over the selection and dismissal of the Consultant’s employees or agents.

18. INSURANCE. The Consultant performing services for the State of Wisconsin shall:

A. Maintain worker’s compensation insurance for all employees engaged in the work.

B. Maintain commercial liability and property damage insurance against any claim(s) which might occur in carrying out this Agreement. Minimum coverage shall be $1,000,000 liability for bodily injury and property damage including products liability and completed operations.

C. Provide motor vehicle insurance for all owned, non-owned, and hired vehicles that are used in carrying out the Agreement. Minimum coverage shall be $1,000,000 per occurrence combined single limit for automobile liability and property damage.

D. Provide an insurance certificate indicating this coverage, counter-signed 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 the Agreement.

E. The State reserves the right to require higher or lower limits where warranted.

19. INVENTIONS, PATENTS, TRADEMARKS

AND COPYRIGHTS.

A. The Consultant hereby assigns to the Department the entire right, title and interest for the entire world in and to all work performed, writings, formulas, designs, models, drawings, photographs, design inventions and other inventions made, conceived or reduced to practice or authored by the Consultant or the Consultant’s employees, either solely or jointly with others, while performing this Agreement or with use of information, materials or facilities of the Department received or used by the Consultant during the period in which the Consultant is retained by the Department or its successors under this Agreement or any extensions or renewals of this Agreement.

B. The Consultant shall promptly disclose to the Department all works, writings, formulas, designs, models, drawings, photographs, design inventions and other inventions made, conceived or reduced to practice or authored by the Consultant or the Consultant’s employees in the course of the performance of this Agreement.

C. The Consultant shall sign, execute and acknowledge or cause to be signed, executed and acknowledged without cost, but at the expense of the Department, any and all documents and to perform such acts as may be necessary, useful or convenient for the purpose of securing to the Department or its nominees, patent, trademark or copyright protection throughout the world upon all such works, writings, formulas, designs, models, drawings, photographs, design inventions and other inventions, title to which the Department may acquire in accordance with the provisions of this SECTION.

D. The Consultant has acquired or shall acquire from each of its employees the necessary rights to all such works, writings, formulas, designs, models, drawings, photographs, design inventions and other inventions made by such employees within the scope of their employment by the Consultant in performing services under this Agreement. The Consultant shall obtain the cooperation of each such employee to secure to the Department or its nominees the rights to such works, writings, formulas, designs, models, drawings, photographs, design inventions and other inventions as the Department may acquire in accordance with the provisions of this SECTION.

20. LATE PENALTIES.

A. The Consultant shall be liable for the payment of penalties to the Department of the sums set forth below for each week that the Consultant fails to submit a report or document required under this Agreement’s time schedule unless the Department determines that such delay is attributable to a force majeure as defined in SECTION 14., above, or a different schedule is agreed to by the parties, in writing, before the date the report or document is due. Penalties, if applicable, shall be due and payable by the Consultant within 15 calendar days of receipt of notification from the Department assessing the penalties. These penalties shall accrue in the amount of $500 for the first week and $1,000 for each week thereafter, for each report or document which is overdue. The Department may subtract penalties which accrue under this SECTION from payments that are owed to the Consultant under this Agreement.

B. Assessment of penalties under this SECTION does not preclude the Department from pursuing any other remedies or sanctions because of the Consultant’s failure to comply with any of the terms of this Agreement, including a suit to enforce the terms of this Agreement.

C. With respect to any individual failure to submit a report or document required under this Agreement’s time schedule, the Department may at its sole discretion, in whole or in part, waive its right to penalties otherwise due under this SECTION.

21. NO WAIVER OF CONDITIONS. The failure of either party to insist on strict performance of this Agreement does not constitute a waiver of any of the provisions of this Agreement or a waiver of any default of the other party.

22. NONDISCRIMINATION. In connection with the performance of work under this Agreement, the Consultant agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in Section 51.01(5), Wisconsin Statutes, sexual orientation or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the Consultant further agrees to take affirmative action to ensure equal employment opportunities. The Consultant agrees to post in conspicuous places, available for employees and applicants for employment, notices to be provided by the Department setting forth the provisions of this nondiscrimination clause. Failure to comply with the conditions of this clause may result in the Consultant being declared an “ineligible” contractor, termination of the Agreement, or withholding of payment.

23. OWNERSHIP OF DOCUMENTS. Upon completion of the services provided for in this Agreement, or upon payment for services as provided for in SECTION 7., all specifications, charts, sketches, drawings and other documents, whether finished or not, shall become the property of the Department.

24. OWNERSHIP OF WASTES. The Department acknowledges that the Consultant is not, by virtue of this Agreement, the owner of any waste materials generated as a result of the services performed by the Consultant under this Agreement.

25. PAYMENTS.

A. The Consultant shall be paid by the Department for the completed work or services rendered under this Agreement at the price set forth elsewhere in the Agreement, and for “Extra Work,” if any, at the compensation set forth in the approved orders covering the Extra Work.

B. Such payment shall be full compensation for work performed or services rendered and for all labor, material, supplies, equipment and incidentals necessary to complete the work.

26. PAYMENT TERMS AND INVOICING.

Payment shall be considered timely if the payment is mailed, delivered, or transferred by the later of the following:

A. The date specified on a properly completed invoice for the amount specified in the order or Agreement, or

B. Within 30 days after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or Agreement or within 30 days after receipt of an improperly completed invoice or receipt and acceptance of the property or service under the order of Agreement, whichever is later if the Department does not notify the sender of receipt of an improperly completed invoice within 10 working days after it receives the invoice of the reason it is improperly completed.

27. PERIOD OF AGREEMENT. This Agreement shall commence upon its signing by both parties (including approval by the Governor of the State if required) and shall follow the schedule developed in the proposal, during which period all performance as described in this Agreement shall be fully completed to the satisfaction of the Department.

28. PROJECT MANAGEMENT. The Department’s project manager for this project is Michele Wheeler, located in the Department’s Northern Region in the Ashland Service Center. The Consultant has identified ____________ as its project manager. If either the Consultant or the Department changes its project manager for this project, notification of this change shall be sent to the other party within 10 days of such a change with the name of the new project manager included.

29. RECORDS, ACCESS. The Consultant shall, for a period of 3 years after completion and acceptance by the Department, maintain books, records, documents and other evidence directly pertinent to performance on work under this Agreement in accordance with generally accepted accounting principles and practices. The Consultant shall also maintain the financial information and data used in the preparation or support of the cost submission in effect on the date of execution of this Agreement and a copy of the cost summary submitted to the Department. The Department, its agents and duly-authorized representatives shall have access to such books, records, documents, and other evidence for the purpose of inspection, audit and copying. The Consultant shall provide proper facilities for such access, inspection and copying. In addition, those records which relate to any dispute, appeal or litigation, or the settlement of claims arising out of such performance, or costs or items to which an audit exception has been taken, shall be maintained and made available until 3 years after the date of resolution of such dispute, appeal, litigation, claim or exception.

30. REJECTION OF DEFECTIVE

MATERIALS. The Department may reject materials and workmanship which are defective or it may require their correction. Rejected workmanship shall be satisfactorily corrected, and rejected materials shall be removed from the Project site without charge to the Department. If the Consultant does not correct such condemned work and remove rejected materials within a reasonable time, fixed by written notice, the Department may remove them and charge the expense to the Consultant.

31. RELEASE OF INFORMATION. The Consultant may not issue press releases or provide information to any third party regarding the Project without the prior written approval of the Department.

32. REQUEST FOR PAYMENT; PROGRESS

REPORTS. The Consultant shall submit invoices to the Department on quarterly basis during the progress of the work for partial payment on account, for the work completed and accepted to date. Pay request formats shall match as closely as possible to the cost proposal format. Each category from the cost proposal shall detail, by task, the hours and costs of each staff level. All invoices detailing the Consultant’s work and subcontracted work shall be attached. Copies of all staff time sheets or summary time data used to invoice pay requests should be attached to the invoice. Unless the Department directs otherwise, all receipts for equipment, materials and other expenses shall be attached to the pay request. The pay request along with a quarterly progress report shall be sent directly to the Department’s project manager. Final invoices must be submitted within 60 days after the end of the contract.

33. SAFETY. The Consultant shall initiate, maintain and provide coordination of safety precautions and programs in connection with its services. However, the Consultant is not responsible for the elimination or abatement of safety hazards created or otherwise resulting from work at the Project site carried on by other persons or firms directly employed by the Department as separate consultants or contractors.

The Department agrees to require any such separate consultants or contractors comply with federal, state and local safety laws and regulations and to comply with all reasonable requests and directions of the Consultant for the elimination or abatement of any safety hazards at the Project site.

34. SCOPE OF SERVICES TO BE PROVIDED.

Subject to the terms and conditions set forth in this Agreement, the Department engages the Consultant to furnish the services specifically described in the Consultant’s Proposal entitled:

________________,” dated _________ and for such other tasks as may be mutually agreed upon in writing between the Consultant and the Department.

The Consultant’s Proposal is incorporated into this Agreement by reference and is made a part of this Agreement.

35. SITE ACCESS. Unless the Scope of Work included in Exhibit "A" provides otherwise, the Department shall obtain or provide reasonable access for the Consultant to the Project site when necessary and at any reasonable time requested.

36. DATA. The Department shall attempt to provide the Consultant with all relevant data and information in its possession regarding the Project site. However, in providing such data and information, the Department assumes no responsibility for its accuracy, reliability or completeness.

37. STANDARD OF PERFORMANCE. The Consultant’s services shall be performed with the usual thoroughness, skill and competence of the consulting profession, in accordance with the standard for professional services prevailing at the time those services are rendered.

38. SURVIVAL. These General Terms and

Conditions shall survive the completion of the services under this Agreement and the termination of this Agreement for any cause.

39. SUCCESSORS AND ASSIGNS. The Department and the Consultant each bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of the other party with respect to all covenants of this Agreement.

40. TAX DELINQUENCY. Consultants which have a delinquent Wisconsin tax liability may have their payments offset by the State.

41. TAXES. The Department is required to pay the Wisconsin excise or occupation tax on its purchase of beer, liquor, wine, cigarettes, tobacco products, motor vehicle fuel and general aviation fuel. However, it is exempt from payment of all federal tax and Wisconsin sales or use tax on its purchases. The State of Wisconsin has issued tax exempt number ES 40690 to the Department. The Department may be subject to other states’ taxes on its purchases in that state depending on the laws of that state. Consultants performing construction activities are required to pay state use tax on the cost of materials.

42. TESTIMONY. The Consultant shall make its employees available to testify at administrative hearings and in court on behalf of the Department regarding the work conducted under this Agreement.

Any costs associated with such testimony shall be billed to the Department on an itemized invoice. The hourly rates charged for testifying and for travel to and from the hearing or court proceeding may not exceed the rates listed on the Consultant’s Classification Rate Schedule in effect at the time that the testimony is given.

43. TITLES. The headings or titles of SECTIONS of this Agreement are used for convenience and ease of reference and are not intended to limit the scope or intent of the SECTIONS.

44. WARRANTY. With respect to any construction work or construction activities performed under this Agreement, except where a longer warranty period is provided by the manufacturer or supplier of any equipment or materials, the Consultant warrants that for one year the work will be free from defects in material or workmanship and that all construction services and material furnished shall be in accordance with the Department’s specifications or the proposal.

This warranty shall survive acceptance and payment and shall not be exclusive. Manufacturers’ warranties received by the Consultant which are applicable to any items furnished by the Consultant shall survive acceptance and payment, and shall run to the Department, its successors and assigns, and may not be exclusive. The Consultant shall obtain any warranties which vendors, contractors and subcontractors would give in normal commercial practice. At the Department’s option, the Consultant shall either promptly repair or replace defective items and work after receipt of the Department’s written notice of a defect.

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