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AGREEMENT
THIS AGREEMENT is by and between _______City of Oshkosh_______________________________
_____________________________________________________________(“Buyer”)
and ______Tech Electric Company, Inc. __________________________________________________
_______________________________________________________(“Seller”).
Buyer and Seller, hereby agree as follows:
ARTICLE 1 – GOODS AND SPECIAL SERVICES
1.01 Seller shall furnish Goods and Special Services as specified or indicated in the Contract
Documents.
ARTICLE 2 – THE PROJECT
2.01 The Project for which the Goods and Special Services under the Procurement Contract
Documents is generally described as procurement of medium voltage transformers and medium
voltage switchgear. The title of the Project is:
CITY OF OSHKOSH
WASTEWATER TREATMENT PLANT TERTIARY TREATMENT
ELECTRICAL SERVICE EQUIPMENT PROCUREMENT
CONTRACT NO. 24-03 (RE-BID)
OSHKOSH, WISCONSIN
ARTICLE 3 – ENGINEER
3.01 The Contract Documents for the Goods and Special Services have been prepared by Donohue &
Associates, Inc. which is to act as Buyer’s representative, assume all duties and responsibilities,
and have rights and authority assigned to Engineer in the Contract Documents in connection with
Seller’s furnishing of Goods and Special Services in accordance with the Contract Documents.
ARTICLE 4 – POINT OF DESTINATION
4.01 The place where the Goods are to be delivered is defined in the General Conditions as the Point
of Destination and is designated as:
Oshkosh Wastewater Treatment Plant
233 North Campbell Rd
Oshkosh, WI 53902
ARTICLE 5 – CONTRACT TIMES
5.01 Time of the Essence
A. All time limits for Milestones, if any, including Submittals, delivery of Goods, and furnishing of
Special Services as stated in the Contract Documents are the essence of the Contract.
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B. All time limits for Milestones, if any, including the submittal of Shop Drawings, the delivery of
Goods and the furnishing of Special Services is contingent upon Buyer issuing Contract
Documents within the time limits stated in the Instructions to Bidders.
5.02 Milestones
A. Submittals Milestones: Seller shall submit design submittals required by the Contract
Documents to Buyer for Engineer’s review and approval after the Notice to Proceed date
when Contract Times commence to run as provided in Paragraph 2.04 of the General
Conditions:
1. 15 weeks after Notice to Proceed.
B. Delivery of Goods Milestones: Seller will be responsible for loading equipment at the factory;
Buyer will be responsible for freight, offloading, and storage of equipment. Seller shall have
equipment loaded at the factory and ready for Buyer’s receipt of delivery not later than 15
days after the delivery dates specified herein below.
1. Goods and Services specified in Section 26 12 00 – Medium Voltage Transformers,
July 1, 2027.
2. Goods and Services specified in Section 26 13 00 - Medium Voltage Switchgear, July 1,
2027.
3. Equipment delivered earlier than the date listed above is acceptable and shall be
coordinated with the Buyer.
5.03 Liquidated Damages For Equipment Specified in Section 26 13 00
A. Buyer and Seller recognize that Buyer will suffer financial loss if Submittals are not delivered
at the Point of Destination and ready for review by Buyer 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 Seller’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 Buyer if
complete acceptable Submittals are not delivered on time. Accordingly, instead of requiring
such proof, Buyer and Seller agree that as liquidated damages for delay (but not as a
penalty) Seller shall pay Buyer $250 for each day that expires after the time specified in the
Milestone Schedule for latest date for 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 2.5 percent of the Bid Price.
B. Buyer and Seller recognize that Buyer will suffer financial loss if Goods are not delivered at
the Point of Destination and ready for receipt of delivery by Buyer within times specified in
Paragraph 5.02.B 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 Seller’s specific compliance with
requirements specified in Paragraph 5.02.B. Further, they recognize the delays, expense,
and difficulties involved in proving actual loss suffered by Buyer if complete acceptable
Goods are not delivered on time. Accordingly, instead of requiring such proof, Buyer and
Seller agree that as liquidated damages for delay (but not as a penalty) Seller shall pay
Buyer $500 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 5
percent of the Bid Price.
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ARTICLE 5 – CONTRACT PRICE
5.04 Buyer shall pay Seller for furnishing Goods and Special Services in accordance with the Contract
Documents in current funds as follows:
A. A Bid Price of:
___Seven Hundred Eighty Four Thousand Seven Hundred Thirty Dollars_( ____$784,730__)
(words) (figures)
B. The above Bid price reflects Buyer’s adoption of the Buyer’s accepted alternate(s):
__Bid Item #1 – Medium Voltage Transformers (BABA Compliant) (VanTran)___
__Bid Item #4 – Medium Voltage Metal Enclosed Switchgear (Non-BABA Compliant) (S&C)_
ARTICLE 6 – PAYMENT PROCEDURES
6.01 Submittal and Processing of Payments
A. Seller shall submit Applications for Payment in accordance with Article 10 of the General
Conditions. Applications for Payment will be processed by Engineer as provided in the
General Conditions.
B. Progress Payments
1. Buyer shall make progress payments on account of Contract Price on the basis of
Seller’s Application for Payment in accordance with the following Milestone Schedule
and the General Conditions:
a. 10% upon Seller issuance of signed Agreement and Notice to Proceed.
b. 20% at the time of the submittals, including shop drawings and product data that
are approved by Engineer.
c. 60% upon delivery of equipment to destination.
d. 10% upon equipment arriving on site plus 45 days.
ARTICLE 7 – INTEREST
7.01 All amounts not paid when due as provided in Article 10 of the General Conditions and the
Supplementary Conditions shall bear interest at the current rate allowed by law in the State of
Wisconsin by local prompt payment laws.
ARTICLE 8 – SELLER’S REPRESENTATIONS
8.01 In order to induce Buyer to enter into this Agreement, Seller makes the following representations:
A. Seller has examined and carefully studied the Contract Documents and other related data
identified in Bidding Documents, as applicable to Seller’s obligations to furnish Goods and
Special Services.
B. Seller is familiar with and is satisfied as to Laws and Regulations that may affect cost,
progress, and furnishing of Goods and Special Services.
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C. Seller has carefully studied, considered, and correlated information known to Seller;
information commonly known to sellers of similar goods doing business in the locality of the
Point of Destination where the Goods will be installed or where Special Services will be
provided; information and observations obtained from Seller’s visits, if any, to the Point of
Destination and site where the Goods are to be installed or Services will be provided; and
any reports and drawings identified in the Bidding Documents regarding the Point of
Destination and the site where the Goods will be installed or where Special Services will be
provided, with respect to the effect of such information, observations, and documents on the
cost, progress, and performance of Seller’s obligations under the Contract Documents.
D. Seller has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies
that Seller has discovered in the Contract Documents, and written resolution thereof by
Engineer is acceptable to Seller.
E. The Contract Documents are generally sufficient to indicate and convey understanding of all
terms and conditions for furnishing Goods and Special Services.
ARTICLE 9 – CONTRACT DOCUMENTS
9.01 Contents
A. The Contract Documents consist of the following:
1. This Agreement (inclusive);
2. Supply Contract Bond (inclusive);
3. Addenda (numbers _1__ to _1__, inclusive);
4. Specifications as listed in the Table of Contents of the Contract Documents
5. Supplementary Conditions (inclusive);
6. General Conditions (inclusive);
7. Exhibits to this Agreement (enumerated as follows):
a. Exhibit A-1 to Agreement between Buyer and Seller dated , Assignment
of Contract; Consent to Assignment; and Acceptance of Assignment;
b. Exhibit A-2 to Agreement between Buyer and Seller dated , Agreement
to Assignment by Seller’s Surety;
c. Documentation submitted by Seller prior to Notice of Award (8 pages total);
1) VanTran pages 1-4
2) S&C pages 2-5
8. 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 Order(s);
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c. Field Order(s);
d. Work Change Directive(s);
e. Engineer’s written interpretations and clarifications.
B. The documents listed in above are attached to this Agreement (except as expressly noted
otherwise above). 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 Agreement 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.
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. Buyer has the right to assign this Contract for furnishing Goods and Special Services, but
only to a person or entity with sufficient ability to satisfy all of Buyer's obligations under this
Contract, and Seller hereby consents to such assignment. Forms documenting the
assignment of the Contract, and consent of Seller’s surety to the assignment, have been
executed by Buyer, Seller, and Seller's surety, and are attached as Exhibits to this
Agreement.
1. The Contract will be executed in the name of Buyer initially and will be assigned to
Construction/Installation Contractor designated by Buyer. Assignment will occur on the
effective date of the Agreement between Buyer and Construction/Installation
Contractor. As of the date of acceptance of assignment by assignee, all references in
the Contract Documents to Buyer shall mean designated assignee whose
responsibilities will include installation or erection or incorporation of the Goods.
2. Assignment of the Contract shall relieve Buyer from all further obligations and liabilities
under this Contract. After assignment, Seller shall become a subcontractor or supplier
to assignee and, except as noted herein, all rights, duties, and obligations of Buyer
under the Contract shall become the rights, duties, and obligations of assignee.
10.03 After Assignment
A. All performance warranties, guarantees, and indemnification required by the Contract
Documents will continue to run for the benefit of Buyer and, in addition, for the benefit of
assignee. However, if Buyer and assignee make the same warranty or guarantee claim, then
Seller shall only be liable once for such claim.
B. Except as provided in this Paragraph, all rights, duties, and obligations of Engineer to
assignee and Seller under this Contract will cease.
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1. Engineer will review Seller’s Applications for Payment and make recommendations to
assignee for payments as provided in Paragraph 10.02 and Paragraph 10.06 of the
General Conditions.
2. Upon written request of either assignee or Seller, Engineer will issue with reasonable
promptness such clarifications or interpretations of the Contract Documents pursuant to
terms of Paragraph 9.02.A of the General Conditions.
C. No other assignment by a party hereto of any rights under or interests in the Contract
Documents 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.
10.04 Successors and Assigns
A. Buyer and Seller 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.
10.05 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 Buyer and Seller. 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.
10.06 Seller’s Certifications
A. Seller 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:
1. “corrupt practice” means the offering, giving, receiving, or soliciting of anything 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 Buyer,
(b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to
deprive Buyer 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 Buyer, 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.
10.07 Limitations
A. Buyer and Seller waive against each other, and against the other’s officers, directors,
members, partners, employees, agents, consultants, and subcontractors, any and all claims
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for or entitlement to incidental, indirect, or consequential damages arising out of, resulting
from, or related to the Contract. Upon assignment, the terms of this Paragraph shall be
binding upon the assignee with respect to Seller and Buyer. The terms of this mutual waiver
do not apply to or limit any claim by either Buyer or Seller against the other based on any of
the following: (a) contribution or indemnification, (b) costs, losses, or damages attributable to
personal or bodily injury, sickness, disease, or death, or to injury to or destruction of the
tangible property of others, (c) intentional or reckless wrongful conduct, or (d) rights
conferred by any bond provided by Seller under this Contract.
B. Upon assignment, the terms of this Paragraph shall be binding upon both the Buyer and
assignee with respect to Seller’s liability, and upon Seller with respect to both Buyer’s and
assignee’s liabilities. The terms of this mutual limitation do not apply to or limit any claim by
either Buyer or Seller against the other based on any of the following: (a) contribution or
indemnification with respect to third-party claims, losses, and damages; (b) costs, losses, or
damages attributable to personal or bodily injury, sickness, disease, or death, or to injury to
or destruction of the tangible property of others, (c) intentional or reckless wrongful conduct,
or (d) rights conferred by any bond provided by Seller under this Contract.
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IN WITNESS WHEREOF, Buyer and Seller have signed this Agreement. One counterpart each has been
delivered to Buyer, Seller, and Engineer. All portions of the Contract Documents have been signed or
identified by Buyer and Seller or on their behalf.
This Agreement will be effective on _June 25_____, __2025_ (which is the Effective Date of the
Agreement).
Buyer:
__City of Oshkosh_______________________
Seller:
TECH Electric Company, Inc._______________
By:___________________________________
(Signature)
Rebecca N. Grill, City Manager
(typed name and title)
By:____________________________________
(Signature)
David Wick, Vice President - Sales
(typed name and title)
By:
___________________________________
(Signature)
Cheryl Pionke, Interim City Clerk
(typed name and title)
Address for giving notices:
PO Box 1130
Oshkosh, WI 54903-1130
Address for giving notices:
W143 N9304 Henry Stark Road
Menomonee Falls, WI 53051
(If Buyer is a public body,
attach evidence of authority to sign and
resolution or other documents authorizing
execution of Buyer-Seller Agreement.)
Agent for service of process:
_______________________________________
Approved as to form and execution this
_____ day of _____________________, 20___
By:__________________________________
(signature)
Lynn Lorenson, City Attorney
(typed name and title)
(If Seller is a corporation or a partnership, attach
evidence of authority to sign.)
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5th September 25
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I hereby certify that the necessary provisions
have been made to pay the liability which will
accrue under this Contract.
By:__________________________________
(signature)
Julie Calmes, Director of Finance
(typed name and title)
Designated Representative:
Designated Representative:
Name:_____________________________
Name:____________________________
Title:______________________________
Title:_____________________________
Address:___________________________
Address:__________________________
Phone:____________________________
Phone:____________________________
Facsimile:__________________________
Facsimile:__________________________
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