HomeMy WebLinkAbout28. 22-182APRIL 26, 2022 22-182 RESOLUTION
(CARRIED___6-1_____LOST________LAID OVER________WITHDRAWN________)
PURPOSE: ACCEPT DONATIONS AND APPROVE AGREEMENT WITH
OSHKOSH AREA COMMUNITY FOUNDATION / CR MEYER
FOR BEAR/FOX EXHIBIT AT MENOMINEE PARK ZOO
INITIATED BY: PARKS DEPARTMENT
WHEREAS, a Bear/Fox Exhibit has been identified in the existing Menominee
Park Zoo Master Plan; and
WHEREAS, various donations have been made by the community for the
construction of a Bear/Fox Exhibit at Menominee Park Zoo; and
WHEREAS, the Oshkosh Area Community Foundation coordinated the effort to
raise money for the construction of the Bear/Fox Exhibit and has established funds for
the payment of design services and construction costs; and
WHEREAS, it is appropriate for the Common Council to gratefully acknowledge
and accept such donations and all future contributions to this project; and
WHEREAS, the necessary funding level has been reached to go forward with the
project from donated funds; and
WHEREAS, §62.15 of the Wisconsin Statutes allows municipalities to accept the
donation of materials and/or labor for public construction as an exception to public
bidding requirements; and
WHEREAS, the Oshkosh Area Community Foundation is donating all labor and
materials for the public construction; and
APRIL 26, 2022 22-182 RESOLUTION
CONT’D
WHEREAS, the gift of the Bear/Fox Exhibit is consistent with the following
guidelines established by the City of Oshkosh Gifts and Donations policy, in that this
donation:
is consistent with the mission, policies and master plans governing the City of
Oshkosh and the Parks Department
provides an educational component
helps to promote conservation, preservation and protection of the natural
environment
provides a new or different experience for the public
is suitable for the purpose proposed
is compatible with the proposed location
is harmonious in quality, scale and character with existing improvements and
features in the area
is a traditional park or municipal entity
is suitable to the environmental conditions of public display
is suitable to the technical requirements or design standards for installation of
improvements in public places
complies with all applicable codes including building codes and ADA
requirements
WHEREAS, the City of Oshkosh Gifts and Donation Policy allows the City to
take on future maintenance costs related to a gift under consideration with
consideration given to:
The community’s need or desire for the donation or improvement;
Whether, and to what extent, the proposed gift/donation provides new or
diverse experiences for community members and visitors; and
Ease of maintenance and repair
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that, on behalf of the residents of this community, the City acknowledges with
deep gratitude and appreciation the generous donations of all contributors to the
Bear/Fox Exhibit project at the Menominee Park Zoo and that the proper City officials
are authorized and directed to take all appropriate actions to accept and utilize these
donations and acknowledge these philanthropic activities.
APRIL 26, 2022 22-182 RESOLUTION
CONT’D
BE IT FURTHER RESOLVED that an Agreement with the Oshkosh Area
Community Foundation and CR Meyer for construction of a Bear/Fox Exhibit at the
Menominee Park Zoo is hereby approved and the proper City officials are authorized to
execute and deliver the Agreement in substantially the same form as attached hereto,
any changes in the final copy being deemed approved upon their respective signatures,
and said City officials are authorized and directed to take those steps necessary to
implement the terms and conditions of the Agreement.
BE IT FURTHER RESOLVED that upon completion of the Bear/Fox Exhibit in
substantial conformity with the plans and specifications approved by the City, as
determined by the City Manager at his discretion, the appropriate City officials are
hereby authorized to acknowledge and accept the completed project on behalf of the
City without further action by the Common Council.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
TO: Honorable Mayor and Members of the Common Council
FROM: Ray Maurer, Parks Director
DATE: April 21, 2022
RE: Accept Donations and Approve Agreement with Oshkosh Area Community
Foundation and CR Meyer for Bear/Fox Exhibit at Menominee Park Zoo
BACKGROUND
For the past year, Parks Department staff has been working on plans and funding for a Black
Bear and Fox exhibit at Menominee Park Zoo. This exhibit is included in the existing
Menominee Park Zoo Master Plan.
The Oshkosh Area Community Foundation has secured the necessary funding for the project.
In addition, city staff has been working with the Oshkosh Area Community Foundation on an
agreement for the construction of the exhibit. Similar to the process that was followed when
the otter and eagle exhibits were constructed, the Foundation has established a fund for this
project and will contract with CR Meyer to construct the exhibit and donate it to the city upon
completion.
ANALYSIS
Similar to when the otter and eagle exhibits were constructed, the Foundation and city staff
have drafted an agreement with a firm, CR Meyer, that the Foundation believes is a good
value and will construct a great exhibit. The agreement allows the Foundation to take
advantage of an exemption to state bidding requirements by having the materials or labor
donated for the project and it also satisfies the city’s statutory requirements for a Public
Construction project.
As this resolution approves the agreement between the parties and officially accepts the
donations, city staff has reviewed the Criteria for Evaluating Gift and Donations from the Gifts
and Donations Policy. We believe this donation meets the following criteria:
Consistency with the mission, policies and master plans governing the City of Oshkosh
and/or the particular department or division
Whether the proposed gift/donation has an educational component
Whether the proposed donation/gift helps to promote conservation, preservation and
protection of the natural environment
Whether the proposed gift/donation provides a new or different experience for the
public
Whether the proposed gift/donation is suitable for the purpose proposed
Whether the proposed gift/donation is compatible with the proposed location, if one
has been identified, and other users of the public space
Whether the proposed gift/donation compliments or is harmonious in quality, scale and
character with existing improvements and features in the area
Whether the proposed gift/donation is a traditional park or municipal amenity
Suitability of the gift/donation to the environmental conditions of public display
Susceptibility of the gift/donation to wear and vandalism
Suitability of the gift/donation to the technical requirements or design standards for
installation of improvements in public places
Whether the proposed gift/donation complies with all applicable codes including
building codes and ADA requirements
FISCAL IMPACT
The fiscal impact of accepting this donation would be the future maintenance and animal care
associated with the exhibit. These costs would be absorbed by the Parks Revenue Facilities
operating budget. The Foundation has secured funds to complete the estimated total funding
necessary of $1,400,000. No city funds are being requested.
RECOMMENDATION
Staff recommends the Common Council accept the donations and approve the agreement.
Respectfully Submitted, Approved:
Ray Maurer Mark A. Rohloff
Parks Director City Manager
Black Bear
Fox exhibit
Exhibit B
Oshkosh City LimitOshkosh City LimitPP RR AA TT TT TT RR
April 18, 2022
City of Oshkosh
Mr. Raymond Maurer
Director, Parks Department
215 Church Ave
PO Box 1130
Oshkosh, WI 54903-1130
Reference: Menominee Park Zoo – Bear & Fox Exhibit Budget REV1
Proposal JPT22-0001REV1
Dear Ray:
We have reviewed your project requirements and have prepared this budget proposal to complete the
above referenced project per our discussions. This budget is based on a time and material basis with no
mark-up. Our quote is One Million Four Hundred Thousand Dollars ($1,400,000).
The scope of work is as follows:
1. Project management.
2. Full time superintendent.
3. Layout & surveying as necessary for concrete work.
4. One mobilization.
5. Locate underground utilities via ground scanning before commencing work.
6. Construction materials testing.
7. Rerouting of existing water with 2 connections per the drawings.
8. Supply & install sanitary & water utilities as shown on drawings.
9. Supply & install (1) yard hydrant.
10. Supply & install underground drain, waste, & vent piping per drawings.
11. Excavation of all foundations per the scope drawings listed in the clarifications.
12. Demo of existing French Drain on sanitary line per FEH.
13. Supply & installation of exterior site concrete as shown on the civil drawings.
14. Supply & installation of structural concrete as shown on the structural drawings.
15. Supply & installation of concrete foundations per Z102.
16. Supply & installation of approximately 1,065 SF of concrete walkway on the exterior.
17. Backfill around the foundations & footings on bear & fox building, canopy, & enclosure fencing.
18. Furnish & install (1) concrete box culvert for bear den (6’ x 8’ x 4’) per drawings.
19. Furnish & install CMU block walls per drawings.
20. Furnish & install required wood blocking per drawings.
21. Furnish & install structural supports, roof framing, & sheathing per drawings.
22. Furnish & install entire roof system per drawings.
23. Furnish & install 1 ½” clear Sentry viewing windows per drawings.
24. Furnish & install all aluminum framed windows per drawings.
25. Furnish & install MEP systems per drawings & specifications.
26. Furnish & install millwork per drawings & specifications.
27. Furnish & install doors, frames, & hardware per drawings & specifications.
28. Furnish & install Nett’em 2”X2”X1/8” & 2”X2”X1/16” per drawings & specifications (black oxide
finish netting).
29. Furnish & install all chain-link enclosure fencing & dig barriers per drawings.
30. Furnish & install chain-link gates per drawings.
Oshkosh Area Community Foundation
Menominee Park Zoo – Bear & Fox Exhibit Budget REV1
April 18th, 2022
Page 2 of 3
31. Furnish & install pedestrian fencing per drawings.
32. Furnish & install bear den excavation and box culvert per drawings.
33. Install bear den boulders, owner furnished.
34. Furnish & install bear deadfall shelter excavation and foundations per drawings.
35. Install deadfall trees, boulders, and attachments, owner furnished.
36. Furnish & install bear pond per drawings.
37. Prepare & paint hollow metal doors & frames.
38. Painting on interior CMU walls.
39. Stain & finish exposed exterior SIPS bottom sheathing & canopy deck boards.
We have specifically excluded the following:
1. Asbestos, lead, or mold remediation.
2. Bonds.
3. Certification, removal, & disposal of hazardous materials.
4. Deep foundation systems.
5. Engineering.
6. Excessive dewatering (average rainfall has been accounted for).
7. Fire protection.
8. Landscaping & vegetation installation.
9. Liquidated & consequential damages.
10. Local building permits & fees.
11. Mark-up (for budgeting purposes).
12. Multiple mobilizations.
13. Structural support for the information board on 2/A4.1.
14. Supply of deadfall trees, boulders, or attachments for the deadfall shelter.
15. Supply of bear den boulders.
16. Temporary facilities.
17. Unsuitable soils.
18. Weekend or holiday premium pay.
19. Winter Conditions.
20. Work associated with “relocated electrical line” on C5.0.
Assumptions / Clarifications:
1. Due to the volatility of markets, all materials costs & delivery lead times will be updated at the
time of delivery.
2. This budget is based on the issued for permit drawings & specifications listed below:
a. General: TS, AG1.1, AG1.2 (dated 3/1/2022).
b. Civil: C2.0, C3.0, C4.0, C5.0, C6.0, C6.1, C7.0 (dated 3/1/2022).
c. Architectural: A1.2, A2.1, A4.1, A5.1, A6.1 (dated 3/1/2022).
d. Structural: S0.1, S0.3, S0.4, S1.0, S2.0 (dated 3/1/2022).
e. Zoo: Z100, Z101, Z102, Z103 (dated 3/1/2022).
f. Plumbing: P0.0, P1.1, P5.0, P6.0, P7.0 (dated 3/1/2022).
g. Mechanical: M0.0, M1.1, M5.0 (dated 3/1/2022).
h. Electrical: E0.0, E0.1, E1.1, E6.0 (dated 3/1/2022).
i. MPZ Fox & Bear Exhibit Specifications (dated 3/1/2022).
3. We are assuming construction will start spring 2022. No winter construction conditions have been
budgeted.
4. Due to the note on C5.0, “Proposed ¾” water line for bear pen water feature location & length of
waterline to be determined”, 30 LF of ¾” copper water line has been budgeted.
5. No given lengths for stormwater pipes given. Work to be performed on a time & material basis.
6. Concrete broom finish is assumed for all exterior concrete.
7. Exterior slab-on-grade has been budgeted with a depth of 6”.
8. Exterior slab-on-grade has been budgeted to receive a 15 MIL vapor barrier below it, similar to
the interior slab-on-grade.
Oshkosh Area Community Foundation
Menominee Park Zoo – Bear & Fox Exhibit Budget REV1
April 18th, 2022
Page 3 of 3
9. Detail 5/A5.1 shows 2” rigid insulation in the foundation wall, 3” rigid insulation has been
budgeted for all foundation walls.
10. Masonry scope as listed below:
a. 4” thick split face masonry block has been budgeted as “Sienna Cream” color.
b. ALL other masonry has been budgeted as standard CMU color.
c. Only the mortar for the 4” thick split face masonry block is budgeted to be a special color.
d. ALL other mortar for masonry block has been budgeted as standard mortar.
e. 4” thick split face concrete blocks do not come in bond beam blocks (per County
Materials). These blocks have not been included.
f. One control joint per face of the building has been budgeted. No other joints have been
included.
g. 6” split face CMU on exterior wing walls have been budgeted as standard color. These
walls have been budgeted as just one layer of split face CMU no cuts through walls
shown.
11. Ceiling has been budgeted to be exposed.
12. Electrical panel delivery lead times are currently at 46 to 51 weeks. (Used equipment may be
located with reduced lead time)
13. HVAC equipment has a current delivery lead time of 32 weeks & has been increasing weekly.
Thank you for the opportunity to provide you with this proposal. We are looking forward to working with
you on this project. Please feel free to call if you have any questions.
Respectfully,
Jason Timm
Project Coordinator
JPT/clw
Cc: Kevin Fores, CR Meyer
Jeremy Wagner, CR Meyer
Megan Harley, CR Meyer
AGREEMENT TO CONSTRUCT BEAR/FOX EXHIBIT
This Agreement is between the City of Oshkosh (“City”), the Oshkosh Area
Community Foundation (“Foundation”), and CR Meyer. (“CR Meyer”). The purpose of
this Agreement is to effectuate the Foundation’s gift of a bear/fox exhibit to be constructed
at the City’s Menominee Park Zoo, the City’s acceptance of such gift subject to the
conditions described in this Agreement, and the hiring of CR Meyer to build the bear/fox
exhibit.
RECITALS
A. The City has identified an area at the Menominee Park Zoo that is available and
suitable for construction of a bear/fox exhibit in the City of Oshkosh.
B. The Foundation, City, and CR Meyer have discussed various options for the
construction of a bear/fox exhibit, and have concluded that an appropriate and
desirable exhibit will cost approximately $1,400,000.
C. The Foundation has received substantial donations that will cover the cost of
constructing a bear/fox exhibit at the Menominee Park Zoo.
D. The City will not be contributing any funds for this project but is a party to this
agreement as the exhibit will be constructed on City property and will be a gift to
the City from the donors.
E. The Foundation seeks to undertake the construction of the bear/fox exhibit on the
identified City property and to provide the resulting product as a gift to the City.
F. The Foundation and its underlying donors are desirous of contracting with CR
Meyer for the construction of the bear/fox exhibit, and CR Meyer wishes to provide
the requested construction services for this project.
G. The construction of the bear/fox exhibit is considered a public works project by
Wisconsin Statutes. However, §62.15 of the Wisconsin Statutes allows
municipalities to accept donations of materials and/or labor for public
construction as an exception to the requirements of the public bidding statute. In
this case, both materials and labor will be donated.
THEREFORE, in consideration of the mutual covenants of each of the parties as
described in this document, the parties do hereby agree to the following terms and
conditions:
AGREEMENT
Article 1 – Contract
1.1 The parties’ Agreement is, and shall continue to, be in writing, and includes:
1.1.1 this document, and all attachments including, without limitation, CR Meyer’s
proposal which is attached as Exhibit A; and
1.1.2 any written addenda to the Proposal as agreed upon by all parties; and
1.1.3 any construction documents approved by City and Foundation.
1.2 The parties’ Agreement may be modified through written amendment of this
Agreement. Amendments include change orders or other methods provided they
are in writing and agreed to by all parties. A series of documents, such as emails,
may constitute approved changes without signatures to the extent these writings
clearly reflect an Agreement of the parties.
1.3 Any conflict in terms between this document and the CR Meyer proposal attached
as Exhibit A shall be resolved in favor of the terms of this document.
Article 2 – Contract Amount and Project Funding
2.1 The Foundation agrees to pay CR Meyer One Million Four Hundred Thousand
and NO/100 Dollars ($1,400,000) for the construction of the bear/fox exhibit at the
City’s Menominee Park Zoo as generally described in their proposal attached
hereto as Exhibit A. The actual project cost may vary due to material availability
and cost. CR Meyer will invoice the Foundation for labor and equipment at their
current rates when the work is performed. Subcontract work and material costs
will be passed through without markup. The City, as the recipient of the
Foundation’s bear/fox exhibit gift, constructed on City property, is an interested
party in the Agreement between the Foundation and CR Meyer.
2.2 Subject to other terms within this Agreement regarding review and approval of
requests for payment, the Foundation shall have the sole obligation to CR Meyer
for the costs associated with this project.
2.3 CR Meyer shall submit monthly invoices for progress payments to the Foundation
with copies to the City. The Foundation will review the invoices and pay those
approved by the 15th day of the month, or the first normal business day thereafter,
the invoice was received.
2.4 The City will provide no financial contribution to the project. Were the City to
provide some funding, certain recordkeeping would be required to ensure the City
is in compliance with bidding statutes. Without the recordkeeping requirements,
the City will be prevented from providing funding at any point in the process.
Article 3 – Foundation’s Responsibilities
3.1 Coordinate donations received for the purpose of constructing the bear/fox exhibit
on the site identified in the Menominee Park Zoo.
3.2 Receive and review bills, statements, and requests for payment from CR Meyer.
3.3 Make payments to CR Meyer for all work completed and approved on the project.
3.4 Provide accountings and other project-related information upon request by the
City.
3.5 Provide, or assist in providing, all documents necessary to finalize the bear/fox
exhibit gift to the City.
Article 4 – CR Meyer Responsibilities
4.1 Designate a representative with full and complete authority to act on CR Meyer’s
behalf for both the design and construction stages of this project.
4.2 Provide to the City and Foundation in writing the names of the persons or entities
CR Meyer will engage as contractors for the project.
4.3 Visit the site, become familiar with local conditions, and correlate observable
conditions with the requirements of the City’s site plans, schedule, and the
anticipated budget for the project.
4.4 Review alternative approaches to design and construction of the project with the
Foundation and the City and coordinate the construction of the bear/fox exhibit.
4.5 Review the laws applicable to design and construction of the project and advise
the City of any known conflicts between legal requirements and the proposed
project plans.
4.6 Prepare and submit all design documents, design and construction budgets, and
other documents necessary for the completion of the bear/fox exhibit.
4.7 Make revisions to the preliminary design documents, design and construction
budgets, or other documents as directed by the Foundation and the City.
4.8 Submit to the City and the Foundation completed design documents consistent
with CR Meyer’s proposal attached as Exhibit A, a statement of the proposed
contract sum, and a proposed schedule for completion of the project, for review
and approval. Design documents shall consist of preliminary and final design
drawings, outline specifications, or other documents sufficient to establish the
size, quantity and character of the bear/fox exhibit, its architectural, structural,
mechanical and electrical systems, and the materials and such other elements of
the project as may be appropriate.
4.9 Submit construction documents to the City and the Foundation for review and
approval. Construction documents shall include drawings, specifications, and
other documents and electronic data setting forth in detail the requirements for
construction of the work and shall be consistent with the intent of the project,
provide information for the use of those in the building trades; and include
documents customarily required for regulatory agency approvals.
4.10 File applications, requests, and other documents required to obtain necessary
approvals of governmental authorities having jurisdiction over the project.
4.11 Obtain all permits and approvals required from the City. City fees will be paid by
the Foundation.
4.12 Promptly notify the City when all permits have been obtained to enable the project
to proceed.
4.13 Provide and pay for all labor, materials, equipment, tools, construction equipment
and machinery, transportation and other facilities and services necessary for
proper execution and completion of the work, whether temporary or permanent
and whether or not incorporated or to be incorporated in the work.
4.14 Keep the City and the Foundation informed of the progress and quality of the
work.
4.15 Correct work that does not conform to the contract documents.
4.16 Pay all sales, consumer, use, and similar taxes and shall secure and pay for all
building and other permits and governmental fees, except permits issued by the
City, licenses and inspections necessary for the proper execution and completion
of the work.
4.17 Comply with and give notices required by laws, ordinances, rules, regulations,
and lawful orders of public authorities relating to the project.
4.18 Pay all royalties and license fees for patented designs, processes or products and
shall defend all suits or claims for infringement of intellectual property rights and
shall hold the City and Foundation harmless from loss on account thereof.
4.19 Coordinate with the City the space used for construction and temporary
construction storage to minimize construction impact on surrounding area and to
allow Menominee Park and the Menominee Park Zoo to continue operating
during the project.
4.20 Keep the premises and surrounding area free from the accumulation of waste
materials or rubbish caused by work related to this project. At the completion of
the work, all waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials shall be removed from the site.
4.21 Notify the City and Foundation when CR Meyer believes that the work or an
agreed upon portion thereof is substantially completed. If the City and
Foundation concur, CR Meyer shall issue a certificate of substantial completion
which shall establish the date. The Certificate shall include a list of items to be
completed or corrected and shall fix the time within which CR Meyer shall
complete items listed therein.
4.22 Maintain one record copy of the as-built drawings, specifications, product data,
samples, product warranties, shop drawings, change orders, and other
modifications at CR Meyer’s local offices and in good order and regularly updated
to record the completed construction. One copy of all of these shall be delivered
to the City of Oshkosh Parks Department upon completion of construction and
prior to the authorization for final payment. In addition, CR Meyer shall provide
individual lien waivers from all subcontractors upon completion of the project and
of the final project and prior to final payment.
4.23 Coordinate with the City, its employees, contractors, and agents in coordination
of construction performed by the City or its contractors or agents.
Article 5 – City’s Responsibilities
5.1 Designate the Director of Parks to coordinate the project, provide guidance, and
make decisions on the City’s behalf.
5.2 Make sufficient space available for CR Meyer and their subcontractors to construct
the bear/fox exhibit, including construction storage and staging areas. The general
location of the bear/fox exhibit is attached as Exhibit B.
5.2 Provide CR Meyer with full information in a timely manner regarding the
requirements for the project, including the City’s objectives, schedule, and
constraints relating to the project.
5.3 Render decisions in a timely manner pertaining to documents submitted by CR
Meyer to avoid unreasonable delay in the orderly and sequential progress of the
project.
5.4 Furnish surveys or other documentation describing physical characteristics, legal
limitations and utility locations for the site of the project. The surveys shall
include, as applicable, grades and lines of streets, pavements, and adjoining
property and structures, adjacent drainage, rights-of-way restrictions, easements,
encroachments, zoning, deed restrictions, boundaries and contours of the site,
locations, dimensions and necessary data pertaining to existing structures, other
improvements and trees, and information concerning available utility services and
lines, both public and private, above and below grade.
5.5 Make available to CR Meyer all results and reports of prior tests, inspections, or
investigations conducted relative to the project site involving environmental
conditions and remediation at the project site which are in the City’s possession.
5.6 Assist CR Meyer in securing building and other permits, licenses and other
necessary approvals of governmental authorities, and inspections. Any costs or
fees, other than those payable to the City of Oshkosh, shall be the responsibility of
CR Meyer and are expected to be included in their Proposal.
5.7 Promptly notify CR Meyer in writing of any fault or defect in the work or
nonconformity with the proposal of construction documents which the City
observes or otherwise becomes aware of.
5.8 Communicate with persons or entities employed or retained by CR Meyer in
connection with this project through CR Meyer.
5.9 Provide CR Meyer with a Notice to Proceed when the project is ready to begin.
Article 6 – Project Timing
6.1 CR Meyer shall prepare a schedule for the performance of the services under this
Agreement which shall take into consideration the needs of the City and
Foundation and coordination with the normal functioning of the Menominee Park
Zoo and with other public projects proposed for the surrounding area. This
schedule shall include allowances for periods of time required for the City’s and
Foundation’s review and for approval of submissions by authorities having
jurisdiction over the project.
6.2 Time limits stated in the contract documents are of the essence. The work to be
performed shall commence upon receipt of a notice to proceed unless otherwise
agreed.
6.3 Unless otherwise indicated, the parties shall perform their respective obligations
as expeditiously as is consistent with reasonable skill and care and the orderly
progress of the project.
6.4 Substantial completion is the stage in the progress of the work when the work or
designated portion thereof is sufficiently complete in accordance with the contract
documents that the City may occupy and utilize the work for its intended use.
6.5 Based upon the proposal submitted by CR Meyer, a construction schedule shall be
submitted and, subject to authorized modifications, substantial completion of the
entire project shall be achieved on or before December 31, 2022.
6.6 If CR Meyer is delayed at any time in the progress of the project by the actions or
neglect of the City or Foundation, their employees, agents or contractors, or by
changes in the work ordered by the City or Foundation, or by labor disputes, fire,
unusual delay in deliveries, adverse weather conditions not reasonably
anticipatable, unavoidable casualties or other causes beyond the control of CR
Meyer, or by delay authorized by the City or Foundation, or by other causes which
the City, Foundation, and CR Meyer agree may justify delay, then the contract
time shall be reasonably extended through written agreement.
Article 7 – Protection of Persons and Property
7.1 CR Meyer shall be responsible for initiating, maintaining, and providing
supervision of all safety precautions and programs in connection with the
performance of this Agreement.
7.2 CR Meyer shall take reasonable precautions for the safety of, and shall provide
reasonable protection to prevent damage, injury, or loss to: (1) employees on the
work and other persons who may be affected thereby; (2) the work and materials
and equipment to be incorporated therein, whether in storage on or off the site,
under care, custody, or control of CR Meyer or CR Meyer’s contractors; and (3)
other property at or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures, and utilities not designated for removal,
relocation, or replacement in the course of construction.
7.3 CR Meyer shall give notices and comply with applicable laws, ordinances, rules,
regulations, and lawful orders of public authorities bearing on the safety of
persons or property or their protection from damage, injury, or loss.
7.4 CR Meyer shall promptly remedy damage and loss (other than damage or loss
insured under property insurance provided or required by the contract
documents) to property at the site caused in whole or in part by CR Meyer, its
contractors, or anyone directly or indirectly employed by them, or by anyone for
whose acts they may be liable.
Article 8 – Correction of Work
8.1 CR Meyer shall promptly correct work rejected by the City or Foundation or
known by CR Meyer to be defective or failing to conform to the requirements of
the contract documents, whether observed before or after substantial completion
and whether or not fabricated, installed or completed. CR Meyer shall bear the
costs of correcting such rejected work, including any additional testing or
inspections required thereby.
8.2 If within one (1) year after the date of substantial completion of the work, or after
the date for commencement of any warranties established or agreed upon, any of
the work is found to be not in accordance with the requirements of the contract
documents, CR Meyer shall promptly correct the work after receipt of written
notice from the City to do so. Such corrections and repairs shall be at CR Meyer’s
expense.
8.3 Nothing in this article shall be construed to establish a period of limitation with
respect to other obligations that CR Meyer may have under this Agreement. The
one year time period established in Section 13.2 relates only to the specific
obligation of CR Meyer to correct the work and has no relationship to the time
within which the obligation to comply with the contract documents may be sought
to be enforced, nor to the time within which proceedings may be commenced to
establish CR Meyer liability with respect to its’ obligations other than the
obligation to specifically correct the work.
8.4 If CR Meyer fails to correct nonconforming work as required or fails to carry out
work in accordance with this Agreement, the City may, by written order signed
by the City Manager, stop the work, or any portion thereof, until the cause for such
order has been eliminated; however, the City’s right to stop the work shall not give
rise to a duty on the part of the City to exercise this right for the benefit of CR
Meyer or other persons of entities.
8.5 If CR Meyer defaults or neglects to carry out the work in accordance with the
contract documents and fails within seven (7) days after receipt of written notice
from the City to commence and continue correction of such default or neglect with
diligence and promptness, the City may give a second written notice to CR Meyer
and seven (7) days following receipt by CR Meyer of such second notice, the City
may, without prejudice to any other remedies that it may have at law or equity,
correct such deficiencies. In such case an appropriate change order shall be issued
deducting from the payments then or thereafter due to CR Meyer, the costs of
correcting such deficiencies. If the payments then or thereafter due are not
sufficient to cover the amount of the deduction, the City shall invoice the
difference to CR Meyer and CR Meyer shall pay the difference to the City within
thirty (30) days of such invoice.
Article 9 – Termination of Agreement
9.1 This Agreement may be terminated by any party upon seven (7) days written
notice to the other parties hereto should any party fail to substantially perform in
accordance with the terms of this Agreement through no fault of the party
initiating the termination.
9.2 This Agreement may be terminated by the City or Foundation without cause upon
at least seven (7) days written notice to the other parties.
9.3 In the event of termination not the fault of CR Meyer, CR Meyer shall be
compensated for services performed to the termination date, together with
reimbursable expenses then due.
9.4 Once construction of this project has commenced, this Agreement may be
terminated by the City or Foundation upon fourteen (14) days written notice to
the other parties in the event that the project is abandoned. If such termination
occurs, CR Meyer shall be compensated for work completed to the termination
date, together with reimbursable expenses then due.
9.5 If CR Meyer defaults or persistently fails or neglects to carry out the work in
accordance with this Agreement, the City and/or Foundation may give written
notice, with copies provided to all parties to this Agreement that the party giving
notice intends to terminate the Agreement. If CR Meyer fails to correct the
defaults, failure or neglect within seven (7) days after being given notice, the party
seeking to correct the default, failure or neglect may then give a second written
notice and, after an additional seven (7) days, the City and/or Foundation may
without prejudice to any other remedy terminate the employment of CR Meyer
and take possession of the site and of all materials, and finish the work by
whatever method deemed most expedient. If the unpaid balance of the contract
sum exceeds the expense of finishing the work and all damages incurred by the
Foundation and City, such excess shall be paid to CR Meyer. If the expense of
completing the work and all damages incurred by the Foundation and City exceed
the unpaid balance, the City shall invoice CR Meyer for the difference and CR
Meyer shall pay the difference within 30 days of receipt of invoice. This obligation
for payment shall survive termination of this Agreement.
9.6 If the Foundation fails to make payment when due, CR Meyer may give written
notice of CR Meyer’s intention to terminate this Agreement. Notice shall be given
to the Foundation with a copy of such notice to be given to the City. If the
Foundation fails to make payment within seven (7) days after receipt of such
notice, CR Meyer may give a second written notice and, seven (7) days after receipt
after such second written notice by the Foundation, CR Meyer may terminate this
Agreement. If such termination occurs, CR Meyer shall be compensated for work
completed to the termination date, together with reimbursement expenses then
due.
Article 10 – Ownership and Use of Documents, Designs, and Electronic Data
10.1 Copies and other tangible embodiments of all design and construction materials,
regardless of whether such materials are subject to intellectual property
protection, shall be and remain the property of the City whether or not the project
is commenced or completed, provided, however, that CR Meyer has been paid for
such materials.
10.2 The intellectual property rights, if any, to the contents and concepts embodied in
the design and construction materials, shall belong to CR Meyer or its design or
construction subcontractors in accordance with their contractual relationship and
may be copyrighted by them in the United States or any other country, or be
subject to any other intellectual property protection.
10.3 As to those design and construction materials subject copyright, patent,
trademark, or any other form of intellectual property protection, CR Meyer grants
to the City and the Foundation beginning on the date that the design and
construction materials are delivered to the City and Foundation, a world-wide,
paid up, nonexclusive, nontransferable (except as provided) license for the entire
term of intellectual property protection. The License shall allow the City and
Foundation to use, reproduce and have reproduced, display and allow others to
display, and publish and allow others to publish, in any manner, at any time and
as often as it desires, with or without compensation, the design and construction
materials without further compensation to CR Meyer or any third party holding
such intellectual property interests. The foregoing rights of the City and the
Foundation are subject to the following restrictions:
10.3.1 All copyright and other intellectual property rights shall remain the property of
CR Meyer and/or any third party holding such rights. Those holding such rights
may use any detail, part, concept, or system on any other project and to retain
copies of the design and construction materials for their future use except as
provided in Section 10.3.
10.3.2 The City and Foundation shall not use the design and construction materials for
the construction of any other project without the prior written approval of the
entity holding such intellectual property rights. Such approval shall not be
unreasonably withheld.
10.3.3 Any reproduction of the protected design and construction materials, or part of
them, shall be faithful and accurate to the original and of good quality.
10.3.4 The City and Foundation shall not remove or alter, and shall reproduce and
prominently display on all copies made by the City and Foundation the copyright
notice and any other proprietary legends.
10.4 It is understood that the City and Foundation consider the bear/fox exhibit’s
aggregate design expression and any distinctive individual features to be unique
and of commercial value. Therefore, CR Meyer and its design subcontractors
agree not to design or build, or allow other third parties the use of the materials to
design or build another exhibit having a substantially similar aggregate design
expression so that the average person would relate the other exhibit to the City’s
exhibit. However, individual features or combinations of features may be used in
other projects as long as an average person would not relate the new structure to
this bear/fox exhibit.
10.5 CR Meyer shall turn over to the City and Foundation all design and construction
materials including, but not limited to, as-built drawings to the City within thirty
(30) days from the completion of the project. Failure to do so will be considered a
breach and subject to damages by the City and/or the Foundation.
Article 11 – Insurance and Bonds
CR Meyer and its subcontractors must hold insurance required by the City during
the course of this project. CR Meyer shall not commence work under this Agreement
until it has obtained all required insurance required and such insurance has been
approved by the City. CR Meyer must provide proof of insurance for any subcontractors
upon request of the City and/or Foundation. A copy of the insurance required is attached
hereto as Exhibit C.
Article 12 – Indemnification
12.1 To the fullest extent permitted by law, CR Meyer shall indemnify and hold
harmless the City and the Foundation, their employees, elected officials, board
members, and consultants from and against claims, damages, losses, and
expenses, including but not limited to attorneys’ fees, arising out of or resulting
from performance of CR Meyer’s involvement in the bear/fox exhibit. This
indemnification and hold harmless includes, without limitation, such claim,
damage, loss or expense that is attributable to bodily injury, sickness, disease or
death, or injury to or destruction of tangible property (other than the work itself),
but only to the extent caused in whole or in part by negligent act of omissions of
CR Meyer, anyone directly or indirectly employed by CR Meyer or anyone for
whose acts CR Meyer may be liable. Such obligation shall not be construed to
negate, abridge, or reduce other rights or obligations of indemnity which would
otherwise exist as to a party or person described in this paragraph.
12.2 In claims against any person or entity indemnified under this article by an
employee of CR Meyer, anyone directly or indirectly employed by CR Meyer or
anyone for whose acts CR Meyer may be liable, the indemnification obligation
under this article shall not be limited by a limitation on amount or type of
damages, compensation, or benefits payable by or for CR Meyer under workers’
compensation acts, disability benefit acts or other employee benefit acts.
Article 13 – Open Records
13.1 The City is subject to the State’s open records laws regarding making certain
records available to those requesting the same. Current open records laws
includes not only governmental entities such as the City, but also contractors and
others with whom the City has a relationship. All parties to this Agreement
understand this public context in which this project will proceed and agree to
abide by prevailing public records laws.
13.2 The Foundation and CR Meyer agree to make documents available to the City for
review and potentially release to those requesting public records. The Foundation,
CR Meyer, and the City understand and agree that the act of making records
available to the City for review will not constitute that party’s consent to release
any particular document to the public or a waiver of any rights or protections. The
act of providing a document to the City to review for applicability to public
records law is not intended to turn an otherwise private document into a public
document.
13.3 To the extent that the City determines that documents provided by the Foundation
and/or CR Meyer are public records, the City shall notify the Foundation and CR
Meyer of this conclusion and will allow five (5) business days for the Foundation
and/or CR Meyer the opportunity to initiate any proceeding deemed necessary to
protect their interests.
13.4 The failure of the Foundation and/or CR Meyer to cooperate with public open
records requests will be considered a material breach of this Agreement.
13.5 CR Meyer public records responsibilities described in this document are limited
to documents related to this project only.
Article 14 – Miscellaneous Provisions
14.1 This Agreement shall be governed by the laws of the State of Wisconsin. Disputes
shall be resolved in the venue of Winnebago County, Wisconsin.
14.2 This Agreement shall be binding upon the parties identified in this Agreement, as
well has their heirs, successors, and assigns. No party shall assign this Agreement
without the written consent of all other parties.
14.3 This Agreement represents the entire Agreement between the parties and
supersedes any and all prior negotiations, representations, or agreements, either
written or oral. This Agreement may only be amended by written instrument
signed by all parties, except in those circumstances described in this document
where a signature is not required.
14.4 CR Meyer shall be responsible to the City for acts and omissions of any employees,
subcontractors, and their agents and employees and other persons including the
architect and other design professionals performing any portion of CR Meyer’s
obligations pursuant to this Agreement.
14.5 CR Meyer shall be responsible for all construction means, methods, techniques,
sequences, and procedures, and for coordinating all portions of the work subject
to this Agreement.
14.6 CR Meyer warrants that all materials and equipment furnished under the contract
by it or by its subcontractors will be of good quality and new unless otherwise
approved by the City and Foundation; that the construction will be free from faults
and defects; and that the construction will conform to the requirements of the
contract documents. Construction not conforming to these requirements shall be
corrected by CR Meyer at CR Meyer’s expense.
14.7 If CR Meyer is delayed at any time in the progress of the work by an act or neglect
of the City, Foundation, or the employees of either, or separate contractors
employed by the City, or by internal labor disputes, fire, unusual delay in
deliveries, adverse weather conditions not reasonably anticipated, unavoidable
casualties or other causes beyond the control of CR Meyer, or by delay authorized
by the City, or by other causes that the City and CR Meyer agree may justify delay
then the contract time shall be reasonably extended by change order to this
Agreement.
14.8 The City may obtain independent review of the documents by a separate architect,
engineer, contractor, or cost estimator. Such independent review shall be
undertaken at the City’s expense and in a timely manner and shall not delay the
orderly progress of the Design/Builder’s services.
Article 15 – Notices
Notices required to be given under this Agreement shall be given as follows:
To the City of Oshkosh:
Ray Maurer
Director of Parks
805 Witzel Avenue
PO Box 1130
Oshkosh, WI 54903-1130
To the Oshkosh Community Foundation:
Bill Wyman
Oshkosh Area Community Foundation
230 Ohio Street
Oshkosh, WI 54902
To CR Meyer, Inc.
Kevin Fores, Vice President
895 W. 20th Avenue
Oshkosh, WI 54903
[SIGNATURE PAGE FOLLOWS]
This Agreement entered in this day of , 2022.
CITY OF OSHKOSH
Mark A. Rohloff
City Manager
Jessi Balcom
City Clerk
APPROVED:
Lynn A. Lorenson
City Attorney
CR MEYER, INC.
By:
Kevin Fores, Vice President
OSHKOSH COMMUNITY FOUNDATION
By:
Bill Wyman, President and CEO