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HomeMy WebLinkAbout24-17 Aug Winter Agreement_1-16-25I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 1 of 11 AGREEMENT THIS AGREEMENT is by and between the City of Oshkosh, Wisconsin (Owner) and August Winter & Sons, Inc., (Contractor). Owner and Contractor, in consideration of the mutual covenants set forth herein, agree as follows: 1. WORK 1.1. Contractor shall complete all work as specified or indicated in the Contract Documents for City Contract 24-17, Water Filtration Plant (WFP) Ozone and SCADA Systems Replacement Project, which involves the installation of Owner- furnished Ozone System Package including equipment, piping, controls, and electrical systems and the installation of new WFP Supervisory Control and Data Acquisition (SCADA) system hardware and associated communication wiring. The Work generally consists of the following: 1. Phased demolition of the WFP liquid oxygen (LOX) storage and ozone generation system. 2. Installation of facility provisions for Owner-leased temporary LOX storage and oxygen feed equipment. 3. Phased installation of Owner-furnished WFP SCADA system hardware. 4. Reconstruction of LOX Storage Area and installation of Owner-furnished LOX storage replacement equipment. 5. Phased installation of Owner-furnished ozone system equipment, piping, controls, and electrical systems. 6. Acceptance of the Owner’s Ozone System Package Purchase Contract with Ozone System Supplier, Xylem Water Solutions USA, Inc. 1.2. The completed Work of City Contract 24-17 will provide Owner with replacement Ozone System Package and SCADA System Hardware installation. 2. ENGINEER 2.1. The Project Work has been designed by Jacobs Engineering Group, Inc. (Engineer), 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. 3. CONTRACT TIMES 3.1. Time of the Essence: All time limits for Milestones, if any, Substantial Completion, and Final Completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 3.2. The Work shall be completed in phases as defined by the Contract Documents. Delivery of Ozone System Package Goods to the Point of Destination, ready for Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 2 of 11 receipt of delivery, shall be no earlier than 15 days before and not later than 15 days after the milestone dates as follows: 3.2.1. Partial Delivery of Phase 1 Ozone System Package Goods specified in Ozone System Package Purchase Contract Documents Specification Section 44 44 56.05, Ozone Diffusion System, October 1, 2024. 3.2.2. Partial Delivery of Phase 1 Ozone System Package Goods specified in Ozone System Package Purchase Contract Documents Specification Section 44 44 56.02 Oxygen Storage and Feed System, February 17, 2025. 3.2.3. Partial Delivery of Phase 1 Ozone System Package Goods specified in Ozone System Package Purchase Contract Documents Division 44 Specifications, excluding Sections 44 44 56.05, Ozone Diffusion System, and 44 44 56.02, Oxygen Storage and Feed System, February 1, 2025. 3.2.4. Delivery of Phase 2 Ozone System Package Goods specified in Ozone System Purchase Package Contract Documents Division 44 Specifications, July 1, 2025. 3.3. The Work shall be completed in phases as defined in the Contract Documents. Substantial and Final Completion milestone dates are as follows: 3.3.1. Phase 0. Phase 0 Work shall be completed prior to Phase 1 Work. No milestone dates are assigned to Phase 0 Work. 3.3.2. Phase 1. Phase 1 Substantial Completion date is July 31, 2025. Phase 1 Final Completion is September 15, 2025. 3.3.3. Phase 2. Phase 2 Substantial Completion date is December 31, 2025. Phase 2 Final Completion is February 28, 2026. 3.3.4. The Work shall be Substantially Complete in accordance with Paragraph 15.06 of the General Conditions within 380 calendar days after the date when the Contract Times commence to run. Final Completion of the Work shall be within 60 calendar days of Substantial Completion. 3.4. Liquidated Damages: 3.4.1. Owner and Contractor recognize that Owner will suffer financial loss if Ozone System Supplier Submittals are not delivered at the Point of Destination and ready for review by Owner and Engineer within the times specified in the Milestone Schedule, plus any extensions thereof allowed in accordance with Article 7 of the General Conditions. The parties also recognize timely performance of services by others involved in the Project are materially dependent upon Contractor’s specific compliance with requirements specified in the Milestone Schedule. Further, they recognize the delays, expense, and difficulties involved in proving actual loss suffered by Owner if complete acceptable Submittals are not delivered on time. Accordingly, instead of requiring such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay Owner $500 for each day that expires after the time specified in the Milestone Schedule for latest date for Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 3 of 11 submittal for each defined segment of Design Submittals and O&M Manuals. The liquidated damages shall be additive on a daily basis for each milestone delivery schedule that is breached. The total liquidated damages for Submittals shall be limited to 5 percent of the Lump Sum Value of Ozone System Supplier’s Goods and Special Services set forth in the Bid Form. 3.4.2. Owner and Contractor recognize that Owner will suffer financial loss if Goods are not delivered at the Point of Destination and ready for receipt of delivery by Owner within times specified in Paragraph 3.2. Date for Delivery of Goods herein, plus any extensions thereof allowed in accordance with Article 7 of the General Conditions. The parties also recognize timely performance of services by others involved in the Project are materially dependent upon Contractor’s specific compliance with requirements specified in Paragraph 4.2. Date for Delivery of Goods. Further, they recognize the delays, expense, and difficulties involved in proving actual loss suffered by Owner if complete acceptable Goods are not delivered on time. Accordingly, instead of requiring such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay Owner $1,000 for each day that expires after the time specified in Milestone Schedule for latest date of all goods for Delivery of Goods to Point of Destination. The liquidated damages shall be additive on a daily basis for each of the milestone delivery schedule when breached. The total liquidated damages for delivery of all goods to point of destination shall be limited to 10 percent of the he Lump Sum Value of Ozone System Supplier’s Goods and Special Services set forth in the Bid Form. 3.4.3. Contractor and Owner recognize that time is of the essence of this Agreement and that Owner will suffer financial loss if the Work is not completed withing the times specified above, plus any extension thereof allowed in accordance with Article 11 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal and arbitration proceeding the actual loss suffered by Owner if the Work is not complete on time. Accordingly, instead of requiring any such proof, Owner and Contractor agree that as liquidated damages for deal (but not as a penalty) Contractor shall pay Owner: One Thousand Dollars ($1,000.00) for each calendar day that expires after the time specified herein for Substantial Completion of the Phase 1 and Phase 2 Work, respectively. 4. CONTRACT PRICE 4.1. Owner will pay Contractor for completion of the Work in accordance with the Contract Documents at the prices stated in Contractor’s Bid, attached hereto as an exhibit, an amount in current funds as follows: Twelve Million Four Hundred Eighty Two Thousand Two Hundred Seventy One Dollars and Twenty Four Cents ($12,482,271.24________) (words) (figures) Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 4 of 11 5. PAYMENT PROCEDURES 5.1. Submittal and Processing of Payments: Contractor shall submit Applications for Payment in accordance with Article 15 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. 5.2. Progress Payments and Retainage: Owner will make progress payments on account of the Contract Price on the basis of Contractor’s Application for Payment on the date of each month as established in the preconstruction conference during performance of the Work as provided herein. All such payments will be measured by the Schedule of Values established as provided in Paragraph 2.05.A of 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 in the General Requirements. 5.3. Progress payments shall be made in conformance with the Ozone System Package Purchase Contract Documents which include payment provisions, on account of Purchase Contract Price, for the Ozone System Package per the Milestone Payment Schedule below. The Ozone System Supplier has successfully achieved and received payment by the Owner for Milestones 1 and 2a. Milestone Payment Schedule Milestone Amount (Percent of Purchase Contract Price) Payable upon Receipt of Invoice after City of Oshkosh acceptance of the following 1 2.5% Seller issuance of signed Agreement and Notice to Proceed. Funds assigned to Seller to provide Buyer Design Submittal Packages as specified in 44 44 56.11 Seller’s Special Services. 2a 2.5% Reviewed Design Submittal Package No. 1 bearing Engineer’s disposition “Approved As Noted”. 2b 2.5% Reviewed Design Submittal Package No. 2 bearing Engineer’s disposition “Approved As Noted”. 2c 2.5% Reviewed Design Submittal No. 3 bearing Engineer’s disposition “Approved As Noted”. 3a 40% Phase 1: Delivery and acceptance of all Goods to Point of Destination or partial deliveries as negotiated or required for Phase 1 Work. 3b 15% Phase 2: Delivery and acceptance of all Goods to Point of Destination or partial deliveries as negotiated or required for Phase 2 Work. 4 2.5% Reviewed final O&M Manuals bearing Engineer’s disposition “Approved As Noted”. Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 5 of 11 Milestone Payment Schedule Milestone Amount (Percent of Purchase Contract Price) Payable upon Receipt of Invoice after City of Oshkosh acceptance of the following 5 2.5% Reviewed Training Materials and Trainer’s resumes bearing Engineer’s disposition “Approved As Noted”. 6a 5% Phase 1: Submission of Certificates of Proper Installation of all equipment installed for Phase 1 Work. 6b 5% Phase 2: Submission of Certificates of Proper Installation of all equipment installed for Phase 2 Work. 7a 10% Phase 1 Substantial Completion 7b 5% Phase 2 Substantial Completion. 8 2.5% Revised O&M Manuals, as-built drawings, training information, software changes made during testing, startup, and operations training 9 2.5% Upon completion of all required Project closeout documentation. 5.4. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated above 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 Paragraph 15.01 of the General Conditions, the Supplementary Conditions, and the Supplementary Conditions – City of Oshkosh. Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 6 of 11 5.5. If the Work has been 50 percent 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. 5.6. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to ninety-five percent of the Work completed, less such amounts as Engineer shall determine in accordance with Paragraph 15.03 of the General Conditions and less ten percent of Engineer’s estimate of the value of Work to be completed or corrected as shown on the tentative list of items to be completed or corrected attached to the certificate of Substantial Completion. 5.7. Final Payment: 5.7.1. Upon final completion and acceptance of the Work in accordance with Paragraph 15.06 of the General Conditions, the Supplementary Conditions, and the Supplementary Conditions – City of Oshkosh, Owner shall pay the remainder of the Contract Price. 6. INTEREST 6.1. All monies not paid when due as provided in Article 15 of the General Conditions shall bear interest at the rate of one percent per month. 7. CONTRACTOR’S REPRESENTATIONS 7.1. In order to induce Owner to enter into this Agreement, Contractor makes the following representations: 7.1.1. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. 7.1.2. Contractor has visited the Site 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. 7.1.3. 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. 7.1.4. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in Article 5 of the General Conditions. 7.1.5. Contractor has considered the information known to 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 Site-related reports and drawings identified in the Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 7 of 11 Contract Documents, 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. 7.1.6. 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. 7.1.7. 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. 7.1.8. Contractor has correlated the information known to Contractor, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. 7.1.9. 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. 7.1.10. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. 8. CONTRACT DOCUMENTS 8.1. Contents: 8.1.1. The Contract Documents that are associated with this Agreement (except as expressly noted otherwise) consist of the following: 8.1.1.1. This Agreement. 8.1.1.2. Performance Bond. 8.1.1.3. Payment Bond. 8.1.1.4. Addenda (Numbers 1 to 4, inclusive); 8.1.1.5. Specifications as listed in Table of Contents of the Contract Documents; 8.1.1.6. Drawings, consisting of 180 sheets with each sheet bearing the title City Contract 24-17; 8.1.1.7. Supplementary Conditions (pages 1 to 32, inclusive); Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 8 of 11 8.1.1.8. General Conditions (pages 1 to 52, inclusive); 8.1.1.9. Exhibit 1. Ozone System Package Purchase Contract Documents, City of Oshkosh Contract 23-19. 8.1.2. Exhibits to this Agreement (enumerated as follows): 8.1.2.1. Exhibit A - 1. Assignment of City of Oshkosh Contract No. 23-19; Consent of Assignment, Acceptance of Assignment Form. 8.1.2.2. Exhibit A – 2. Agreement to Assignment by Ozone System Supplier’s Surety 8.1.2.3. Contractor’s Bid Tabulation. 8.1.2.4. Contractor’s Bid Bond. 8.1.2.5. Bid Form Signature Pages. 8.1.2.6. Documentation submitted by Contractor prior to Notice of Award. 8.1.2.6.1. Environmental Improvement Fund DBE Contacts Worksheet Form 8700-294A. 8.1.2.6.2. List of Proposed Subcontractors. 8.1.2.6.3. Disclosure of Ownership 8.1.2.6.4. Contractor Safety Acknowledgement for Risk Management Program Facilities. 8.1.3. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: 8.1.3.1. Notice to Proceed. 8.1.3.2. Work Change Directives. 8.1.3.3. Change Orders. 8.1.3.4. Field Orders. 8.1.3.5. Engineer’s written interpretations and clarifications. 8.2. 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. Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 9 of 11 8.3. There are no Contract Documents other than those listed above in this Article. 8.4. The Contract Documents may only be amended, modified, or supplemented as provided in Article 3 and Article 11 of the General Conditions and Supplementary Conditions. 9. MISCELLANEOUS 9.1. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 9.2. Successors and Assigns: 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. 9.3. Severability: 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 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. 9.4. Assignment of Contract: 9.4.1. No assignment by a party hereto of any rights under or interests in the Contract shall be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are 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 shall release or discharge the assignor from any duty or responsibility under the Contract Documents. 9.5. Assignment of Ozone System Package Purchase Contract: 9.5.1. The Owner assigns the Ozone System Package Purchase Contract (Purchase Contract) for furnishing Goods and Special Services to a Contractor with sufficient ability to satisfy all of Owner’s obligations under the Purchase Contract. The Owner, Ozone System Supplier, and Ozone System Supplier’s Surety executed documents pertaining to the assignment of the Purchase Contract assignment to qualified Contractor attached as Exhibits to this Agreement. 9.5.1.1. The Purchase Contract executed initially in the name of Owner is assigned to a Contractor designated by Owner. Assignment will occur on the effective date of the Agreement between Owner and Contractor. As of the date of acceptance of assignment by assignee, all references in the Purchase Contract to Owner shall mean designated assignee whose responsibilities will include installation or erection or incorporation of the Goods. Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 10 of 11 9.5.1.2. Assignment of the Purchase Contract shall relieve Owner from all further obligations and liabilities under this Contract. After assignment, Ozone System Supplier shall become a subcontractor or supplier to assignee and, except as noted herein, all rights, duties, and obligations of Owner under the Purchase Contract shall become the rights, duties, and obligations of assignee. 9.5.1.3. After Assignment: 9.5.1.3.1. All performance warranties, guarantees, and indemnification required by the Purchase Contract Documents will continue to run for the benefit of Owner and, in addition, for the benefit of assignee. However, if Owner and assignee make the same warranty or guarantee claim, then Ozone System Supplier shall only be liable once for such claim. 9.5.1.3.2. Except as provided in this Paragraph, all rights, duties, and obligations of Engineer to assignee and Ozone System Supplier under the Purchase Contract will cease. 9.5.2. No other assignment by a party hereto of any rights under or interests in the Purchase Contract will be binding on another party hereto without the written consent of the party sought to be bound. Specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by Laws and Regulations). Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge assignor from any duty or responsibility under the Contract Documents. Docusign Envelope ID: F40D72EB-4B71-435B-926F-42A14F737BFA I:\Water Filtration\24-17 Wpf Ozone Equip Inst\Administrative\Contract Information\Contractor- Consultant-Supplier Agreements\Aug Winter\24-17 Aug Winter Agreement_1-16-25.Docx Page 11 of 11 IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. One fully- executed contract has been delivered to Owner, Contractor, and Engineer via DocuSign. All portions of the Contract Documents have been signed or identified by Owner and Contractor or on their behalf. This Agreement will be effective on January 10, 2025 (which is the Effective Date of the Agreement). Signed for on behalf of the City of Oshkosh John Fitzpatrick, Interim City Manager Diane M. Bartlett, City Clerk Lynn Lorenson, City Attorney Julie Calmes, Director of Finance I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract. CONTRACTOR: By: Travis Glennon Title: Assistant Secretary Address for giving notices: 2323 North Roemer Road Appleton, WI 54911 License No. (Where applicable) Agent for service or process: (If Contractor is a corporation or a partnership, attach evidence of authority to sign.) 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