HomeMy WebLinkAbout17-18 CD Smiith Const Contract_2-11-26
AGREEMENT
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AGREEMENT
THIS AGREEMENT is by and between the City of Oshkosh, Wisconsin (Owner) and C.D.
Smith Construction, (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 17-18, WATER FILTRATION PLANT CLEARWELLS REPLACEMENT
PROJECT. The Work generally consists of the following:
1.1.1. Demolition of the Water Filtration Plant (WFP) South Clearwell, Center Clearwell, North
Clearwell, and High Lift Pump Station 6/7; demolition of equipment and systems located in the
1985 Low Lift-High Service Pump Station, the WFP Emergency Generator Room, and the
Granular Activated Carbon (GAC) Gallery.
1.1.2. Construction of a new Intermediate and High Lift Pump Station (IHLPS) on the site of the
demolished Center Clearwell.
1.1.3. Construction of a new South Reservoir on the site of the demolished South Clearwell.
1.1.4. Construction of a new North Reservoir on the site of the demolished North Clearwell.
1.1.5. Installation of new WFP emergency generators and generators’ switchgear.
1.1.6. Replacement of low lift pumping system, electrical equipment and control systems,
building mechanical systems in the 1985 Low Lift High Service Pump Station.
1.1.7. Replacement of pump drives in the Backup Low Lift Pump Station.
1.1.8. Installation of buried piping and buried electrical ductbank.
1.1.9. Installation of improvements to CT/BWS Basin.
1.1.10. Installation of improvements to Flow Meter Vault.
1.1.11. Installation of a new storm water outfall to Lake Winnebago.
1.1.12. Installation of modifications to the WFP supervisory control and data acquisition
(SCADA) system.
1.1.13. WFP site fencing, surface restoration, and landscaping.
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2. FEDERAL AND STATE REQUIREMENTS
2.1. This Project is being financed in whole or in part by the Wisconsin Department of
Natural Resources through the Safe Drinking Water Loan Program (SDWLP). Contractor
is required to comply with the following federal laws and all applicable state and federal
laws, rules, and regulations, and must ensure that their subcontractor(s) also comply with
these laws, rules and regulations:
1. Title VI of the Civil Rights Act (Public Law [P.L.] 88-352), the Rehabilitation
Act of 1973 (P.L. 93-1123, 87 Statute 355, 29 United States Code [USC] Section
794), the Older Americans Amendments of 1975 (P.L. 94-135 Section 303, 89
Statute 713, 728, USC Section 6102), and subsequent regulations that ensure
access to facilities or programs regardless of race, color, national origin, sex, age,
or handicap.
2. Executive Order (E.O.) 11246, as amended by E.O. 11375 and E.O. 12086 and
subsequent regulations, prohibits employment discrimination on the basis of race,
color, religion, sex, or national origin. Inclusion of the seven clauses in Section
202 of E.O. 11246 as amended by E.O. 11375 and E.O. 12086 are required in all
project contracts and subcontracts for municipalities over 3,300 population.
3. Executive Orders 11625, 12138, and 12432; 40 CFR Part 33; Section 129 of P.L.
100-590 Small Businesses Reauthorization & Amendment Act of 1998; P.L.
102-389 (42 USC 437d); a 1993 appropriations act (“EPA’s 8% statute”); and
P.L. 101-549, Title X of the Clean Air Act Amendments of 1990 (42 USC 7601
note) (“EPA’s 10% statute”) encourages recipients to award construction, supply,
and professional service contracts to minority and women’s business enterprises
(MBE/WBE) and small businesses and require recipients to utilize affirmative
steps in procurement.
4. 40 CFR Part 33 – Participation by Disadvantaged Business Enterprises in
Procurement under EPA Financial Assistance Agreements sets forth a narrowly-
tailored EPA program to serve the compelling government interest of remedying
past and current racial discrimination through agency-wide DBE procurement
objections.
5. Executive Order 12549, 3 CFR, 189: and 40 CFR Part 32, Subparts B and C,
prohibit entering into contracts or subcontracts with individuals or businesses who
are debarred or suspended. Borrowers are required to check to the status of all
contractors (construction and professional services) and must require contractors
to check the status of subcontractors expected to be equal to or over $25,000 at
SAM.gov/content/exclusions.
6. Executive Order 13202, as amended by Executive Order 13208, does not allow
bid specifications, project agreements, or other controlling agreements to require
or prohibit bidders, contractors, or subcontractors to enter into or to adhere to
project labor agreements.
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7. Section 513 of the federal Water Pollution Control Act (33 USC 1372) or Section
1450€ of the Safe Drinking Water Act (42 USC 300j-9(e)), as applicable, requires
that all laborers and mechanics employed by contractors and subcontractors on
projects funded directly by or assisted in whole or in part by and through the
Federal Government pursuant to the Act shall be paid wages at rates not less than
those prevailing on projects of a character similar in the locality as determined the
Secretary of Labor in accordance with subchapter IV of Chapter 31 of Title 40,
USC. With respect to the labor standards specified in this section, the Secretary of
Labor has the authority and functions set forth in Reorganization Plan Numbered
14 of 1950 (64 Statute 1267; 5 USC) and Section 3145 of Title 40, USC.
8. Use of American Iron and Steel Provisions of P.L. 114-113 Consolidated
Appropriations Act, 2016. Successful Bidder will be required to certify that they
understand and will comply with these requirements.
9. Infrastructure Investment and Jobs Act, P.L. 117-58, Build America, Buy
America Act, Sections 70901 – 70952, 2021. Successful Bidder will be required
to certify that they understand and will comply with these requirements.
10. Wage requirements prescribed by the federal Davis-Bacon Act and Related Acts
which require that all laborers and mechanics employed by contractors and
subcontractors performing on contracts funded in whole or in part with federal
funds in excess of $2,000 pay their laborers and mechanics not less than the
prevailing wage rates and fringe benefits, as determined by the Secretary of
Labor, for corresponding classes of laborers and mechanics employed on similar
projects in the area.
3. ENGINEER
3.1. The Project has been designed by Jacobs Engineering Group, Inc. (Engineer), with sub-
consulting engineer AECOM Technical Services, Inc., 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.
4. CONTRACT TIMES
4.1. Time of the Essence: 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.
4.2. Days to Achieve Substantial Completion and Final Payment:
4.2.1. The Work shall be substantially completed in two phases. Phase 1 shall be substantially
complete within 730 days from the date when the Contract Times commence to run as provided
in Paragraph 1.01 of the General Conditions. Phase 2 shall be substantially complete within
1,240 days from the date when the Contract Times commence to run as provided in Paragraph
1.01 of the General Conditions. Phase 1 and Phase 2 shall be completed and ready for final
payment in accordance with Paragraph 15.06 of the General Conditions within 1,300 days after
the date when the Contract Times commence to run.
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4.3. Liquidated Damages:
4.3.1. 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 within the times specified in
Paragraph 4.2.1 Contract Times above, plus any extensions 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 or arbitration proceeding the 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)
Contractor shall pay Owner ONE THOUSAND Dollars ($1,000.00) for each day that expires
after the time specified herein for Substantial Completion until the Work is substantially
complete.
5. CONTRACT PRICE
5.1. 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:
Forty Seven Million Six Hundred Twenty NineThousand Six Hundred Dollars ($47,629,600)
(words) (figures)
6. PAYMENT PROCEDURES
6.1. 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.
6.2. 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.
6.2.1. 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 Paragraph 15.01 of the General Conditions,
the Supplementary Conditions, and the Supplementary Conditions – City of Oshkosh.
6.2.1.1. Ninety five percent of Work completed (with the balance being retainage). 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.
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6.2.1.2. Upon Phase 2 Substantial Completion specified herein, 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.
6.3. Final Payment:
6.3.1. Upon final completion and acceptance of the Work in accordance with Paragraph 15.06
of the General Conditions, Owner shall pay the remainder of the Contract Price.
7. INTEREST
7.1. 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.
8. CONTRACTOR’S REPRESENTATIONS
8.1. In order to induce Owner to enter into this Agreement, Contractor makes the following
representations:
8.1.1. Contractor has examined and carefully studied the Contract Documents and the other
related data identified in the Bidding Documents.
8.1.2. 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.
8.1.3. 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.
8.1.4. 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.
8.1.5. 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 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.
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8.1.6. 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.
8.1.7. 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.
8.1.8. 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.
8.1.9. 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.
8.1.10. The Contract Documents are generally sufficient to indicate and convey understanding
of all terms and conditions for performance and furnishing of the Work.
9. CONTRACT DOCUMENTS
9.1. Contents:
9.1.1. The Contract Documents that are associated with this Agreement (except as expressly
noted otherwise) consist of the following:
9.1.1.1. This Agreement.
9.1.1.2. Performance Bond.
9.1.1.3. Payment Bond.
9.1.1.4. Addenda (Numbers 1 to 5, inclusive);.
9.1.1.5. Specifications as listed in the table of contents of the Bidding Documents.
9.1.1.6. Drawings consisting of 270 sheets with each sheet bearing the following general title:
City Contract 17-18 Water Filtration Plant Clearwells Replacement Project.
9.1.1.7. Geotechnical reports listed in the table of contents of the Bidding Documents.
9.1.1.8. Supplementary Conditions – City of Oshkosh
9.1.1.9. Supplementary Conditions.
9.1.1.10. General Conditions.
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9.1.2. Exhibits to this Agreement:
9.1.2.1. Contractor’s Bid Tabulation.
9.1.2.2. Contractor’s Bid Bond.
9.1.2.3. Bid Form signature Pages.
9.1.2.4. Documentation submitted by Contractor prior to Notice of Award.
9.1.2.5. Environmental Improvement Fund DBE Contacts Worksheet Form 8700-294A.
9.1.2.6. List of Proposed Subcontractors.
9.1.2.7. Contractor Safety Acknowledgement for Risk Management Program Facilities.
9.1.3. The following which may be delivered or issued on or after the Effective Date of the
Agreement and are not attached hereto:
9.1.3.1. Notice to Proceed.
9.1.3.2. Work Change Directives.
9.1.3.3. Change Orders.
9.1.3.4. Field Orders.
9.1.3.5. Engineer's written interpretations and clarifications.
9.2. 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.
9.3. There are no Contract Documents other than those listed above in this Article.
9.4. The Contract Documents may only be amended, modified, or supplemented as provided in
Article 3 and Article 11 of the General Conditions.
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10. MISCELLANEOUS
10.1. Terms used in this Agreement will have the meanings stated in the General Conditions and
the Supplementary Conditions.
10.2. 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.
10.3. 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.
10.4. Assignment of Contract:
10.4.1. 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.
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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 February 11, 2026 (which is the Effective Date of the
Agreement).
Signed for on behalf of the City of Oshkosh CONTRACTOR: C.D. Smith Construction
Rebecca N. Grill, City Manager
Darla Salinas, City Clerk
David Praska, Interim 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.
By:
Norbert D. Schmidt
Title: President
Address for giving notices:
125 Camelot Drive
Fond du Lac, WI 54935
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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