HomeMy WebLinkAbout23-23 August Winter Agreement_11-29-23
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 1 of 8
AGREEMENT
THIS AGREEMENT is by and between _City of Oshkosh______________________________
_____________________________________________________________(hereinafter called Owner)
and __August Winter & Sons, Inc.________________________________________________
_______________________________________________________(hereinafter called Contractor).
Owner and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows:
ARTICLE 1 – WORK
1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The
Work of this Contract is generally described as improvements to the lifting systems at the
Wastewater Treatment Facility and is further described as follows:
1. Installation of a new steel support frame and manual hoist in the Headworks Building.
2. Installation of a new steel support beam and manual hoist in the lower level of the Solids
Building.
3. Removal of existing railing and installation of new removable aluminum railing adjacent to
the new hoist in the Solids Building.
4. Modifications to an existing monorail support beam in the Solids Building.
ARTICLE 2 – THE PROJECT
2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is
generally described as follows:
CITY OF OSHKOSH
WASTEWATER TREATMENT PLANT
LIFTING SYSTEMS IMPROVEMENTS PROJECT
CONTRACT NO. 23-23
OSHKOSH, WISCONSIN
ARTICLE 3 – ENGINEER
3.01 The Project has been designed by Donohue & Associates, Inc., who is hereinafter called
Engineer and who is to act as Owner’s representative, assume all duties and responsibilities, and
have the rights and authority assigned to Engineer in the Contract Documents in connection with
the completion of the Work in accordance with the Contract Documents.
ARTICLE 4 – CONTRACT TIMES
4.01 Time of Essence
A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness
for final payment as stated in the Contract Documents are of the essence of the Contract.
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 2 of 8
4.02 Dates for Substantial Completion and Final Payment
A. The Work will be substantially completed on or before October 1, 2024, and completed and
ready for final payment in accordance with Article 15 of the General Conditions, the
Supplementary Conditions, and the Supplementary Conditions – City of Oshkosh on or
before November 1, 2024.
4.03 Liquidated Damages
A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01
above and that Owner will suffer financial loss if the Work is not completed and Milestones
not achieved within the times specified in Paragraph 4.02 above, plus any extensions thereof
allowed in accordance with the Contract. The parties also recognize the delays, expense, and
difficulties involved in proving in a legal or arbitration proceeding that actual loss suffered by
Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof,
Owner and Contractor agree that as liquidated damages for delay (but not as a penalty).
1. Substantial Completion: Contractor shall pay Owner $500 for each day that expires
after the time (as duly adjusted pursuant to the Contract) specified in Paragraph 4.02.A
above for Substantial Completion until the Work is substantially complete.
2. Completion of Remaining Work: After Substantial Completion, if Contractor shall neglect,
refuse, or fail to complete the remaining Work within the Contract Time (as duly
adjusted pursuant to the Contract) for completion and readiness for final payment,
Contractor shall pay Owner $500 for each day that expires after such time until the
Work is completed and ready for final payment.
3. Liquidated damages for failing to timely attain Substantial Completion and final
completion are not additive and will not be imposed concurrently.
ARTICLE 5 – CONTRACT PRICE
5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract
Documents an amount in current funds as follows:
__One Hundred Sixty Four Thousand Three Hundred Dollars_______ ($164,300___________)
(words) (figures)
ARTICLE 6 – PAYMENT PROCEDURES
6.01 Submittal and Processing of Payments
A. Contractor shall submit Applications for Payment in accordance with Article 15 of the General
Conditions, the Supplementary Conditions, and the Supplementary Conditions – City of
Oshkosh. Applications for Payment will be processed by Engineer as provided in the
General Conditions, the Supplementary Conditions, and the Supplementary Conditions – City
of Oshkosh.
6.02 Progress Payments; Retainage
A. Owner shall make progress payments on account of the Contract Price on the basis of
Contractor’s Applications for Payment. All such payments will be measured by the Schedule
of Values established as provided in the General Conditions (and in the case of Unit Price
Work based on the number of units completed) or, in the event there is no Schedule of
Values, as provided elsewhere in the Contract.
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 3 of 8
B. Prior to Substantial Completion, progress payments will be made in an amount equal to the
percentage indicated below but, in each case, less the aggregate of payments previously
made and less such amounts as Engineer may determine or Owner may withhold, including
but not limited to liquidated damages, in accordance with Article 15 of the General
Conditions, the Supplementary Conditions, and the Supplementary Conditions – City of
Oshkosh:
1. 95% of Work completed (with the balance being retainage). If the Work has been
50% completed as determined by Engineer, and if the character and progress of the
Work have been satisfactory to Owner and Engineer, Owner, on recommendation of
Engineer, may determine that as long as the character and progress of the Work
remain satisfactory to them, there will be no additional retainage on account of Work
subsequently completed, in which case the remaining progress payments will be in
an amount equal to 100% of the Work completed less the aggregate of previous
retainage and payments previously made. At 50% completion, or any time thereafter,
when the character and progress of the Work is not satisfactory, additional amounts
may be retained, but in no event shall the total retainage be more than 10% of the
value of the Work completed.
C. Upon Substantial Completion, the amount of retainage may be reduced. Upon Substantial
Completion, Owner may make additional payments, retaining at all times an amount sufficient
to cover the estimated cost of the work still to be completed or corrected.
6.03 Final Payment
A. Upon final completion and acceptance of the Work in accordance with Article 15 of the
General Conditions, the Supplementary Conditions, and the Supplementary Conditions – City
of Oshkosh, Owner shall pay the remainder of the Contract Price as recommended by
Engineer as provided in said Article 15.
ARTICLE 7 – INTEREST
7.01 All amounts not paid when due as provided in Article 15 of the General Conditions, the
Supplementary Conditions, and the Supplementary Conditions – City of Oshkosh shall bear
interest at the maximum rate allowed by law at the place of the project.
ARTICLE 8 – CONTRACTOR’S REPRESENTATIONS
8.01 In order to induce Owner to enter into this Agreement Contractor makes the following
representations:
A. Contractor has examined and carefully studied the Contract Documents and the other related
data identified in the Bidding Documents.
B. Contractor has visited the Site, conducted a thorough, alert visual examination of the Site and
adjacent areas, and become familiar with and is satisfied as to the general, local, and Site
conditions that may affect cost, progress, and performance of the Work
C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and
Regulations that may affect cost, progress, and performance of the Work.
D. Contractor has carefully studied all: reports of explorations and tests of subsurface conditions
at or adjacent to the Site and all drawings of physical conditions relating to existing surface or
subsurface structures at the Site that have been identified in the Supplementary Conditions,
especially with respect to Technical Data in such reports and drawings.
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 4 of 8
E. Contractor has considered and correlated the information known to the Contractor;
information commonly known to contractors doing business in the locality of the Site;
information and observations obtained from visits to the Site; the Contract Documents; and all
additional or supplementary examinations, investigations, explorations, tests, studies, and
data with respect to the effect of such information, observations, and documents on (1) the
cost, progress, and performance of the Work; (2) the means, methods, techniques,
sequences, and procedures of construction to be employed by Contractor, including any
specific means, methods, techniques, sequences, and procedures of construction expressly
required by the Contract Documents; and (3) Contractor’s safety precautions and programs.
F. Contractor does not consider that any further examinations, investigations, explorations,
tests, studies, or data are necessary for the performance of the Work at the Contract Price,
within the Contract Times, and in accordance with the other terms and conditions of the
Contract Documents.
G. Contractor is aware of the general nature of work to be performed by Owner and others at the
Site that relates to the Work as indicated in the Contract Documents.
H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or
discrepancies that Contractor has discovered in the Contract Documents, and the written
resolution thereof by Engineer is acceptable to Contractor.
I. The Contract Documents are generally sufficient to indicate and convey understanding of all
terms and conditions for performance and furnishing of the Work.
J. Contractor’s entry into this Contract constitutes an incontrovertible representation by
Contractor that without exception all prices in the Agreement are premised upon performing
and furnishing the Work required by the Contract Documents.
ARTICLE 9 – CONTRACT DOCUMENTS
9.01 Contents
A. The Contract Documents consist of the following:
1. This Agreement (pages 00520-1 to 00520-08, inclusive);
2. Performance Bond (pages 00610-1 to 00610-2, inclusive);
3. Payment Bond (pages 00615(A)-1 to 00615(A)-3, inclusive);
4. Specifications as listed in the table of contents of the Project Manual;
5. Drawings, not attached hereto, consisting of a cover sheet and sheets numbered
1 through 17, inclusive, with each sheet bearing the following general title:
CONTRACT 23-23, WASTEWATER TREATMENT PLANT LIFTING SYSTEMS
IMPROVEMENTS PROJECT, OSHKOSH, WISCONSIN.
6. Supplementary Conditions – City of Oshkosh;
7. Supplementary Conditions (pages 00800-1 to 00800-12, inclusive);
8. General Conditions (pages 00700-1 to 00700-65, inclusive);
9. Exhibits to this Agreement (enumerated as follows):
a. Contractor’s Bid Tabulation;
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 5 of 8
b. Contractor’s Bid Bond;
c. Bid Form Signature Pages;
d. List of proposed Subcontractors having a direct contract with the Contractor from
the Subcontractor Listing included with the Contractor’s Bid (page 004108);
e. Disclosure of Ownership;
f. Exhibit D: Documentation submitted by Contractor prior to Notice of Award;
10. Documents in the Appendix;
11. The following which may be delivered or issued on or after the Effective Date of the
Agreement and are not attached hereto:
a. Notice to Proceed;
b. Change Orders;
c. Work Change Directives;
d. Field Orders;
e. Engineer’s written interpretations and clarifications.
B. The Contract Documents are complementary; what is required by one is as binding as if
required by all. In the event any provision in any of the above component parts of this
Contract conflicts with any provision in any other of the component parts, the provision in the
component part first enumerated above shall govern over any other component which follows
it numerically except as may be otherwise specifically stated.
C. There are no Contract Documents other than those listed above in this Article 9.
D. The Contract Documents may only be amended, modified, or supplemented as provided in
the General Conditions and the Supplementary Conditions.
ARTICLE 10 – MISCELLANEOUS
10.01 Terms
A. Terms used in this Agreement will have the meanings indicated in the General Conditions
and Supplementary Conditions.
10.02 Assignment of Contract
A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party hereto of
any rights under or interests in the Contract will be binding on another party hereto without
the written consent of the party sought to be bound; and, specifically but without limitation,
money that may become due and money that is due may not be assigned without such
consent (except to the extent that the effect of this restriction may be limited by law), and
unless specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or responsibility under the
Contract Documents.
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 6 of 8
10.03 Successors and Assigns
A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal
representatives to the other party hereto, its partners, successors, assigns, and legal
representatives in respect to all covenants, agreements, and obligations contained in the
Contract Documents.
10.04 Severability
A. Any provision or part of the Contract Documents held to be void or unenforceable under any
Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be
valid and binding upon Owner and Contractor, who agree that the Contract Documents shall
be reformed to replace such stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the intention of the stricken
provision.
10.05 Contractor’s Certifications
A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive
practices in competing for or in executing the Contract. For the purposes of this Paragraph
10.05:
1. “corrupt practice” means the offering, giving, receiving, or soliciting of any thing of value
likely to influence the action of a public official in the bidding process or in the Contract
execution;
2. “fraudulent practice” means an intentional misrepresentation of facts made (a) to
influence the bidding process or the execution of the Contract to the detriment of Owner,
(b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive
Owner of the benefits of free and open competition;
3. “collusive practice” means a scheme or arrangement between two or more Bidders, with
or without the knowledge of Owner, a purpose of which is to establish Bid prices at
artificial, non-competitive levels; and
4. “coercive practice” means harming or threatening to harm, directly or indirectly, persons
or their property to influence their participation in the bidding process or affect the
execution of the Contract.
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 7 of 8
IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement in triplicate. One
counterpart each has been delivered to Owner, Contractor, and Engineer. All portions of the Contract
Documents have been signed or identified by Owner and Contractor.
This Agreement will be effective on November 29, 2023 (which is the Effective Date of the Agreement).
OWNER:
__City of Oshkosh________________________
CONTRACTOR:
__August Winter & Sons, Inc._______________
By:____________________________________
(signature)
Mark A. Rohloff, City Manager
(typed name and title)
By:____________________________________
(signature)
Travis Glennon, Assistant Secretary
(typed name and title)
_______________________________________
By:____________________________________
(signature)
Diane M Bartlett, City Clerk
(typed name and title)
Address for giving notices:
PO Box 1130
Oshkosh, WI 54903-1130
Address for giving notices:
2323 North Roemer Road
Appleton, WI 54911
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
I:\Wastewater\23-23 WWTP Lift Syst Impr\Project_Information\Contract Info\Contractor-Consultant
Agreements\August Winter\23-23 August Winter Agreement_11-29-23.doc Page 8 of 8
If Owner is a public body, attach evidence of
authority to sign and resolution or other
documents authorizing execution of Owner-
Contractor Agreement.
License No. _____________________________
(where applicable)
Approved as to form and execution this
_____ day of ______________________, 20___
By:____________________________________
(signature)
Lynn Lorenson, City Attorney
(typed name and title)
I hereby certify that the necessary provisions
have been made to pay the liability which will
accrue under this Contract.
By:____________________________________
(signature)
Russ Van Gompel, Director of Finance
(typed name and title)
Agent for service of process:________________
(If Contractor is a corporation or a partnership,
attach evidence of authority to sign.)
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
December12th 23
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A
DocuSign Envelope ID: 9C21505E-EB27-41DE-895B-3B0DD94FF56A