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Round About Renovation Landscape improvements 2024
AGREEMENT FOR ROUNDABOUT AND MEDIAN LANDSCAPE IMPROVEMENTS This Agreement is between the City of Oshkosh (City), the Oshkosh Area Community Foundation (Foundation), and Zillges Materials, Inc., (Zillges). The purpose of this Agreement is to implement the Foundation's gift of landscape improvements at roundabouts and select medians in the City, the hiring of Zillges to design and install landscaping in the selected locations, and the City's acceptance of such gift subject to the conditions described in this Agreement. RECITALS A. The City has identified roundabouts and certain street medians within public right-of-way in the City of Oshkosh that would benefit from landscape improvements. B. The Foundation, City, and Zillges have discussed various options for the design and installation of landscape improvements at the selected locations. The parties have concluded that the design and installation of landscape improvements for the Project will cost $203,411.00. C. The Foundation has received donations for the purpose of designing and installing landscaping improvements at roundabouts and select street medians within the City. D. The City has identified public funds that are available and will be given to the Foundation to assist in completing this Project. E. The Foundation will undertake responsibility for the cost of designing and installing the landscape improvements at the selected locations in the City, and to provide the resulting product as a gift to the City. F. The Foundation and its underlying donors offer to contract with Zillges for the design and installation of the landscape improvements for the Project cost identified above, and Zillges accepts the offer and will provide the requested design and installation of landscape improvements at this agreed upon price. G. The installation of the landscape improvements within the City's public right-of- way is considered a public works project by Wisconsin Statutes. However, §62.15 of the Wisconsin Statutes allows municipalities to accept donations of materials 1 April 12, 2024 and/or labor for public construction as an exception to the requirements of the public bidding statute. H. All parties will fully comply with public bidding requirements. In order to comply, all of the City's public resources will be transferred to the Foundation for the sole purpose of contributing toward the cost of labor for this Project. The remaining labor costs and all of the material costs, as well as all other Project costs, will be the responsibility of the Foundation and its donors and will be the Foundation's gift to the City. 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' complete Agreement shall be comprised of more than one document. The parties' Agreement includes: 1.1.1 this document, and all attachments including, without limitation, Zillges' Proposal which is attached as Exhibit A; and 1.1.2 all agreed upon written amendments to this document, to the Zillges Proposal, to attachments, and to Project specifications, whether in the form of a change order or other explicitly approved change that is in writing; and 1.1.3 all Project documents approved by City and Foundation. 1.2 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 Zillges Proposal attached as Exhibit A, and any amendments to the Proposal, 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 Zillges an amount not to exceed Two Hundred Three Thousand Four Hundred Eleven and NO/100 Dollars ($203,411.00) for the 2 April 12, 2024 design and installation of landscape improvements in roundabouts and selected medians in the City's public right-of-way. The Project is generally described in the Zillges proposal attached hereto as Exhibit A. Zillges agrees to design and install the landscaping for this amount. The City, as the recipient of the Foundation's landscape improvements gift, is an interested party in the agreement between the Foundation and Zillges. 2.2 Billing for the Project will be submitted by Zillges to the Foundation. Subject to other terms within this Agreement regarding review and approval of requests for payment, the Foundation shall have the sole obligation to Zillges for all costs and expenses associated with this Project. 2.3 Zillges 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's only contribution to this Project shall be financial contributions to be used towards defraying costs of labor. The City shall provide the Foundation with a lump sum contribution of One Hundred Fifty Thousand and NO/100 Dollars ($150,000.00) to be used solely for labor costs associated with the Project. The City's contribution shall occur at the commencement of this Project. 2.5 The Foundation and Zillges will create and maintain records which will clearly identify, track, and verify that the City's contribution to this Project is allocated solely to labor costs. These creation, accounting, and verification activities shall be at the expense of the Foundation and Zillges and shall not be an additional expense to the City. 2.6 The Foundation and Zillges agree to provide the City with all documentation necessary for the purpose of verifying that all of the City's contributions to this Project have been attributed to labor costs on this Project. The City will have the sole discretion to determine what documentation is necessary to comply with its statutory obligations. The Foundation and Zillges shall provide this documentation upon request to the City, its employees, agents, or representatives, or its accountants or auditors, or anyone otherwise legally entitled to review such documents. 3 April 12, 2024 Article 3 — Foundation's Responsibilities 3.1 Coordinate donations received for the purpose of designing and installing landscape improvements in roundabouts and certain street medians within City public rights -of -way where the City has maintenance obligations. 3.2 Receive and review bills, statements, and requests for payment from Zillges. 3.3 Make payments to for all work completed and approved on the Project. 3.4 Provide accountings and other Project -related information upon the City's request. 3.5 Provide, or assist in providing, all documents necessary to finalize the landscape improvements as a gift to the City. Article 4 — Zillges' Responsibilities 4.1 Designate a representative with full and complete authority to act on Zillges' behalf for both the landscape design and installation stages of this Project. 4.2 Provide the City and Foundation with the names and contact information of the persons or entities Zillges will engage as subcontractors 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 landscape design and installation of the Project with the Foundation and the City. Coordinate the final design and installation of the landscape improvements. 4.5 Review the laws applicable to the Project's landscape design and installation and advise the City of any known conflicts between legal requirements and the proposed Project plans. 4.6 Prepare and submit to the City and Foundation all design documents, design and installation budgets, and other documents necessary for the completion of the roundabout and median landscape improvement Project. 4 April 12, 2024 4.7 Make revisions to the preliminary design documents, design and installation 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 Zillges' 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 include, when applicable, preliminary and final design drawings, outline specifications, or other documents sufficient to establish the size, quantity and character of the landscape improvements, materials, and such other elements of the Project as may be appropriate. 4.9 Commence work only when all necessary permits, licenses, and approvals have been obtained. The City will assist with applications and approvals. Fees for City approvals will be waived. Fees for other governmental approvals will be the responsibility of Zillges. 4.10 Upon request, submit installation documents to the City and the Foundation for review and approval. Installation documents may include drawings, specifications, and other documents and electronic data setting forth in detail the requirements for installation of the work and shall be consistent with the intent of the Project, and include documents customarily required for regulatory agency approvals, if any. 4.11 Provide and pay for all design services, labor, materials, equipment, tools, installation 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. 4.12 Keep the City and the Foundation informed of the progress and quality of the work. 4.13 Correct work that does not conform to City standards or the parties Agreement. 4.14 Comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of public authorities relating to the Project. 4.15 Coordinate and comply with the City, County, and State Department of Transportation, as necessary, with any traffic lane closures, temporary parking, debris removal, and street cleaning in all areas of the Project. 5 April 12, 2024 4.16 Minimize impact of lane closures, traffic flow disruptions, and traffic diversions related to the Project. 4.17 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 against the City and Foundation, and shall hold the City and Foundation harmless from loss on account thereof. 4.18 Minimize impact of the Project on surrounding area and to allow City streets, and County and State Highways, to remain open and continue operating during the Project. 4.19 Keep the Project sites, and adjoining public and private areas, free from tools and equipment, and 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, installation equipment, machinery, and surplus materials shall be removed from the Project site. The Project sites and these surrounding areas shall be cleaned at the completion of the Project. 4.20 Notify the City and Foundation when the Project or an agreed upon part of the Project is substantially completed. If the City and Foundation agree, the City shall issue a certificate of substantial completion for the applicable part of the Project, which shall establish the date for warranty and other purposes. The Certificate shall include a list of items to be completed or corrected and shall fix the time within which Zillges shall complete items listed therein. 4.21 Maintain one record copy of the as -built drawings, specifications, product data, samples, product warranties, shop drawings, change orders, and other modifications at Zillges' local offices and in good order and regularly updated to record the completed installation. One copy of all of these shall be delivered to the City of Oshkosh Parks Department upon completion of installation and prior to the authorization for final payment. In addition, Zillges shall provide individual lien waivers from all subcontractors upon completion of the Project and of the final Project and prior to final payment. 4.22 Pay all sales, consumer, use, and similar taxes and fees. Article 5 — City's Responsibilities 5.1 Designate the Director of Parks, or a designee, to coordinate the Project, provide guidance, and make decisions on the City's behalf. 6 April 12, 2024 5.2 Provide Zillges with complete information that is available to the City in a timely mariner 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 maimer pertaining to documents submitted by Zillges to avoid unreasonable delay in the orderly and sequential progress of the Project. 5.4 Furnish surveys or other documentation, if necessary, describing physical characteristics, legal limitations and utility locations for the Project sites. 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 Zillges all results and reports of prior tests, inspections, or investigations conducted relative to the Project sites involving environmental conditions and remediation at the Project sites which are in the City's possession. 5.6 Assist in obtaining building and other permits, licenses and other necessary approvals of governmental authorities, and inspections. City permit costs will be waived. Any costs or fees, other than those charged or assessed by the City of Oshkosh, shall be the responsibility of Zillges and are expected to be included in their Proposal. 5.7 File applications, requests, and other documents required to obtain necessary approvals of governmental authorities, including but not limited to the City, having jurisdiction over the Project. 5.8 Promptly notify Zillges when all City permits have been issued. Keep Zillges and the Foundation informed of the status of approvals from other governmental entities. 5.9 Prompt notify Zillges in writing of any fault or defect in the work or nonconformity with the proposal of Project documents which the City observes or otherwise becomes aware of. 7 April 12, 2024 5.10 Communicate with persons or entities employed or retained by Zillges in cormection with this Project through the Zillges contact identified herein. 5.11 Provide Zillges with a Notice to Proceed when the Project is ready to begin. Article 6 — Project Timing. 6.1 Zillges shall prepare a schedule for the performance of the services under this Agreement and submit to the City for approval. Scheduling shall take into consideration the needs of the City and Foundation, construction traffic patterns for other City projects in the vicinity of the Project, and coordination with the normal functioning of the Project sites. The Project sites include City of Oshkosh rights -of -way and State and County rights -of -way. 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 activities that are part of the Project. 6.2 Lane closures, traffic flow disruptions, and traffic diversions shall occur only between the hours of 9:00 am and 3:00 pm, Monday through Friday. Requests to work outside these hours may occur only upon approval of the City. Work may be performed on Saturdays upon approval by the City. . 6.3 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 by all parties. 6.4 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. 6.5 A landscape installation schedule shall be submitted. Work shall commence by June 1, 2024, or earlier upon approval by the City. Seventy-five percent (75%) of the Project shall be completed by October 15, 2024. Subject to authorized modifications, substantial completion of the entire Project shall be achieved on or before December 01, 2024. 6.7 If Zillges 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 Zillges, 8 April 12, 2024 or by delay authorized by the City or Foundation, or by other causes which the City, Foundation, and Zillges agree may justify delay, then the contract time shall be reasonably extended through written agreement. Article 7 — Protection of Persons and Property 7.1 Zillges 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 Zillges 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) members of the public that are lawfully using the public right-of-way; (3) the work and materials and equipment to be incorporated therein that are under care, custody, or control of Zillges or Zillges' contractors; and (4) 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 installation. 7.3 Zillges 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 Zillges 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 Zillges, its contractors, or anyone directly or indirectly employed by them, or by anyone for whose acts they may be liable. Article 8 — Correction of Wor 8.1 Zillges shall promptly correct work rejected by the City or Foundation or known by Zillges 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. Zillges 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 0 April 12, 2024 documents, Zillges shall promptly correct the work after receipt of written notice from the City to do so. 8.3 Nothing in this article shall be construed to establish a period of limitation with respect to other obligations that Zillges may have under this Agreement. The one- year time period established in Section 8.2 relates only to the specific obligation of Zillges 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 Zillges liability with respect to its' obligations other than the obligation to specifically correct the work. 8.4 If Zillges 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 Zillges or other persons of entities. 8.5 If Zillges 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 Zillges and seven (7) days following receipt by Zillges 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 Zillges, the costs of correcting such deficiencies. If the payments then or thereafter due are not sufficient to cover the amount of the deduction, the Foundation shall invoice the difference to Zillges and Zillges shall pay the difference to the Foundation 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. 10 April 12, 2024 9.3 In the event of termination not the fault of Zillges, Zillges shall be compensated for services performed to the termination date, together with reimbursable expenses then due. 9.4 Once the installation of landscape improvements for 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, Zillges shall be compensated for work completed to the termination date, together with reimbursable expenses then due. 9.5 If Zillges 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 Zillges 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 remove Zillges from the Project and take possession of all materials at the site 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 Zillges. If the expense of completing the work and all damages incurred by the Foundation and City exceed the unpaid balance, the Foundation shall invoice Zillges for the difference and Zillges 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 a progress payment when due, Zillges may give written notice of Zillges' 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, Zillges may give a second written notice and, seven (7) days after receipt after such second written notice by the Foundation, Zillges may terminate this Agreement. If such termination occurs, Zillges shall be compensated for work completed to the termination date, together with reimbursement expenses then due. 11 April 12, 2024 Article 10 — Ownership and Use of Documents, Designs, and Electronic Data 10.1 Copies and other tangible embodiments of all design and installation 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 Zillges has been paid for such materials. 10.2 The intellectual property rights, if any, to the contents and concepts embodied in the design and installation materials, shall belong to Zillges or its design or installation 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 installation materials subject copyright, patent, trademark, or any other form of intellectual property protection, Zillges grants to the City and the Foundation as of the date that the design and installation materials are delivered to the City and Foundation, a world-wide, paid up, nonexclusive, nontransferable (except as provided) license for the term of intellectual property protection, for 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 installation materials without further compensation to Zillges 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 Zillges 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 installation 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 installation materials for the installation of any other Project without the prior written approval of the entity holding such intellectual property rights. 10.3.3 Any reproduction of the protected design and installation materials, or part of them, shall be faithful and accurate to the original and of good quality. 12 April 12, 2024 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 Zillges shall turn over to the City and Foundation all design and installation 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 Zillges and its subcontractors must hold insurance required by the City during the course of this Project. Zillges shall not commence work under this Agreement until it has obtained all required insurance required and such insurance has been approved by the City. Zillges 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 B. Article 12 - Indemnification 12.1 To the fullest extent permitted by law, Zillges 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 Zillges' involvement in the roundabout and median landscape improvement Project. 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 Zillges, anyone directly or indirectly employed by Zillges or anyone for whose acts Zillges 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 Zillges, anyone directly or indirectly employed by Zillges or anyone for whose acts Zillges 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 Zillges under workers' compensation acts, disability benefit acts or other employee benefit acts. 13 April 12, 2024 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 law includes not only governmental entities such as the City, but also contractor 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 open records laws. 13.2 The Foundation and Zillges agree to make documents available to the City for review and potentially release to those requesting public records. The Foundation, Zillges, 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 document to the public or a waiver of any rights or protections. The act of providing a document to the City to review is not intended to turn a private document into a public document. 13.3 To the extent that the City determines that documents provided by the Foundation and/or Zillges are public records, the City shall notify the Foundation and Zillges of this conclusion and will allow five (5) business days for the Foundation and/or Zillges the opportunity to initiate any proceeding deemed necessary to protect their interests. 13.4 The failure of the Foundation and/or Zillges to cooperate with public open records requests will be considered a material breach of this Agreement. 13.5 Zillges' open records responsibilities described in this Agreement are limited 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 14 April 12, 2024 signed by all parties, except in those circumstances described in this document where a signature is not required. 14.4 Zillges shall be responsible to the City for acts and omissions of any employees, subcontractors, and their agents and employees and other persons including design professionals performing any portion of Zillges' obligations pursuant to this Agreement. 14.5 Zillges shall be responsible for all installation means, methods, tecluliques, sequences, and procedures, and for coordinating all portions of the work subject to this Agreement. 14.6 Zillges warrants that all plants, landscape 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 installation will be free from faults and defects; and that the landscape materials and installation will conform to the requirements of the contract documents. Installation not conforming to these requirements shall be corrected by Zillges at Zillges' expense. 14.7 If Zillges 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 Zillges, or by delay authorized by the City, or by other causes that the City and Zillges 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 landscape 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 Zillges' 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 15 April 12, 2024 To the Oshkosh Community Foundation: Bill Wyman Oshkosh Area Community Foundation 230 Ohio Street, Suite 100 Oshkosh, WI 54902 To Zillges Materials, Inc., Timothy Zillges Zillges Materials, Inc. 1990 W. Snell Road Oshkosh, WI 53904-1004 [SIGNATURE PAGE FOLLOWS] 16 April 12, 2024 ISA This Agreement entered in this — day of 'Jorl 2024. CITY OF OSHKOSH Mark A. Rohloff City Manager Diane M. Bartlett City Clerk LijN Lynn. Lorej City Attorney ZILLGES MATERIALS, INC., Bv: Timothy Zillges, PreWent OSHKOSH CO NITYY FOUNDATION B64��'Z14-!� Bill Wyman, President nd CEO 17 April 12, 2024 'X 100-is. 1990 W SNELL ROAD Oshkosh, WI 54904 Phone 920.231,1994 Fax 920.231.0017 PROPOSAL. SUBMITTED TO,, DATE; 3/11/2024 City of Oshkosh Attn: Travis Derl<s STREET: CITY, STATE tic ZIP CODE: PHONE: JOB NUMBER/LOCATION: Oshi<osh Roundabout's 1) 21 (Omro Rd & N Washburn St $13, 650 2) 21 (Omro Rd & Southbound 41 On/Off ramps $13,650 3) 21 (Omro Rd & Northbound 41 On/Off ramps $9, 607 4) song Island on 21 between 41 & N Koeller $38,535 5) 21 (Omro Rd/Oshkosh Ave and Koeller St $6, 930 6) Small Island on 21 (Oshkosh Ave east of Koeller $6, 615 7) Witzel Ave & Koeller St $9, 817 8) Witzel Ave & Washburn St $9, 617 9) 91h Ave & N Washburn St $10,263 10) 91h Ave & Southbound 41 On/Off ramps $10, 263 11) 91h Ave & Northbound 41 On/Off ramps $10,185 12) 9+h Ave & Koeller St $10, 500 13) Murdock Ave and Jackson St $ 8, 421 14)Algoma & Lake ,butte Des Marts Dr/ Furnau $10,158 15)Hwy 44 Island $35,000 Notes: All permits and road closer procedures to be provided by City of Oshkosh Total: $203,411 WE PROPOSE HEREBY TO FURNISH MATERIAL, AND LABOR FOR THE ABOVE SPECIFICATIONS, SALES TERMS ARE STRICTLY NET 30 DAYS FROM DATE OF INVOICE, SUBJECT TO LATE PAYMENT CHARGES OF 1 '/z% PER MONTH (18% ANNUAL), THIS PROPOSAL MAY BE WITHDRAWN BY US IF NOT ACCEPTED WITHIN 45 DAYS. SIGNATURE: Insurance Requirements for th City of Oshkosh i Revised: April 26, 2022 Revised: April 11, 20222 Revised: February 1, 2022 Revised: December 20, 2018 Revised: May 12, 2014 Revised: April 14, 2014 Revised: October 23, 2013 Revised: July 16, 2012 Revised: May 25, 2012 Revised: May 9, 2012 Revised: December 21, 2011 Revised: March 31, 2011 Original: January 14, 2011 4/26/22 City of Oshkosh • • The City's Insurance Requirements describe the insurance required, some of which identify the risks to be covered and allow the Contractor and its Insurer some flexibility in covering those risks. The City will not be reviewing each and every detail of the Contractor's policy, but expects that the required coverage exists. The City's action, or inaction, of allowing the contract to proceed does not act as a waiver of any insurance requirement or an alteration of any required term of the contract. To the contrary, the City relies on the affirmations of the Contractor and to the extent that such affirmations are false, misleading, or in error, the City reserves the right to, in addition to enforcement of contract requirements, the ability to pursue any false, misleading, or erroneous affirmations. It is important that the City of Oshkosh is adequately protected from loss due to the negligence of others (contractors, suppliers, vendors, etc.) who are working for, with, or on behalf of the City of Oshkosh. To help achieve this goal, the City of Oshkosh requires that other parties carry a certain level of insurance that will protect, defend and indemnify the City from losses arising out of their activities or from their products. The following standards have been established to help provide direction and consistency for City of Oshkosh Departments. Until the appropriate certificate of insurance verifying the required coverage is obtained, the City of Oshkosh will NOT be issuing a license, permit or entering into a contract. Insurance requirements for jobs or activities such as asbestos abatement, pollution clean up, oil recycling, hazardous waste removal, or any new contract or activity where it is not clear what level of insurance should be required will be determined by the City Attorney and the Safety & Risk Management Officer. The City Attorney and/or the Safety & Risk Management Officer are responsible for the review of all certificates of insurance to determine if they meet the insurance requirements. There may be times when an organization or Contractor can not meet the insurance requirements. Any significant variance from the standards must be authorized by the City Attorney and/or the Safety & Risk Management Officer. 4/11 /22 CITY OF OSHKOSH INSURANCE REQUIREMENTS II. CONTRACTOR'S INSURANCE WITHOUT CONSTRUCTION INSURANCE REQUIREMENTS The Contractor shall not commence work on contract until proof of insurance required has been provided to the applicable City department before the contract or purchase order is considered for approval by the City. It is hereby agreed and understood that the insurance required by the City of Oshkosh is Primary coverage and that any insurance or self insurance maintained by the City of Oshkosh, its officers, council members, agents, employees or authorized volunteers will not contribute to a loss. All insurance shall be in full force prior to commencing work and remain in force until the entire job is completed and the length of time that is specified, if any, in the contract or listed below whichever is longer. 1. INSURANCE REQUIREMENTS FOR CONTRACTOR —LIABILITY & BONDS A. Commercial General Liability coverage at least as broad as Insurance Services Office Commercial General Liability Form, including coverage for Products Liability, Completed Operations, Contractual Liability, and Explosion, Collapse, Underground coverage with the following minimum limits and coverage: 1. Each Occurrence limit $1,000,000 2. Personal and Advertising Injury limit $1,000,000 3. General aggregate limit (other than Products —Completed Operations) per project $2,000,000 4. Products —Completed Operations aggregate $2,000,000 5. Fire Damage limit — any one fire $50,000 6. Medical Expense limit — any one person $5,000 7. Watercraft Liability, (Protection & Indemnity coverage)"if" the project work includes the use of, or operation of any watercraft, then Watercraft Liability insurance must be in force with a limit of $1,000,000 per occurrence for Bodily Injury and Property Damage. 8. Products — Completed Operations coverage must be carried for two years after acceptance of completed work. B. Automobile Liability coverage at least as broad as Insurance Services Office Business Automobile Form, with minimum limits of $1,000,000 combined single limit per accident for Bodily Injury and Property Damage, provided on a Symbol #1— "Any Auto" basis. C. Workers' Compensation as required by the State of Wisconsin, and Employers Liability insurance with sufficient limits to meet underlying Umbrella Liability insurance requirements. If applicable for the work coverage must include Maritime (Jones Act) or Longshoremen's and Harbor Workers Act coverage. D. Umbrella Liability providing coverage at least as broad as the underlying Commercial General Liability, Watercraft Liability (if required), Automobile Liability and Employers Liability, with a minimum limit of $2,000,000 each occurrence and $2,000,000 aggregate, and a maximum self -insured retention of $10,000. 4/11 /22 E. Aircraft Liability, "if" the project work includes the use of, or operation of any aircraft or helicopter, then Aircraft Liability insurance must be in force with a limit of $3,000,000 per occurrence for Bodily Injury and Property Damage including Passenger liability and including liability for any slung cargo. F. The contractor is responsible for loss and coverage for Builder's Risk, Installation Floater, Contractor's Equipment and Property exposures. City of Oshkosh will not assume responsibility for loss, including loss of use, for damage to property, materials, tools, equipment, and items of a similar nature which are being either used in the work being performed by the contractor or its subcontractors or are to be built, installed, or erected by the contractor or its subcontractors. G. Also, see requirements under Section 3. H. Bond Requirements Bond forms acceptable by the City of Oshkosh are found on the last 6 pages of this document. Bid Bond. Bids that are $25,000 or greater will require the contractor to provide to the owner a Bid Bond, which will accompany the bid for the project. The Bid Bond shall be equal to 5 percent of the contract bid. The City may, at its discretion, require bonds for certain contracts with amounts less than $25,000. 2. Payment and Performance Bond. If awarded the contract, bids that are $25,000 or greater will require the contractor to provide to the owner a Payment and Performance Bond in the amount of the contract price, covering faithful performance of the contract and payment of obligations arising thereunder, as stipulated in bidding requirements, or specifically required in the contract documents on the date of the contract's execution. The City may, at its discretion, require bonds for certain contracts with amounts less than $25,000. 3. Acceptability of Bonding Company. The Bid, Payment and Performance Bonds shall be placed with a bonding company with an A.M. Best rating of no less than A- and a Financial Size Category of no less than Class VI. 2. INSURANCE REQUIREMENTS FOR SUBCONTRACTOR All subcontractors shall be required to obtain Commercial General Liability (if applicable Watercraft liability), Automobile Liability, Workers' Compensation and Employers Liability, (if applicable Aircraft liability) insurance. This insurance shall be as broad and with the same limits as those required per Contractor requirements, excluding Umbrella Liability, contained in Section 1 above. Hm 4/11 /22 3. APPLICABLE TO CONTRACTORS / SUBCONTRACTORS / SUB -SUB CONTRACTORS A. Acceptability of Insurers - Insurance is to be placed with insurers who have an A.M. Best rating of no less than A- and a Financial Size Category of no less than Class VI, and who are authorized as an admitted insurance company in the state of Wisconsin. B. Additional Insured Requirements — The following must be named as additional insureds on all Liability Policies for liability arising out of project work - City of Oshkosh, and its officers, council members, agents, employees and authorized volunteers. On the Commercial General Liability Policy, the additional insured coverage must be ISO form CG 20 10 07 04 or its equivalent and also include Products — Completed Operations ISO form CG 20 37 07 04 or its equivalent for a minimum of 2 years after acceptance of work. This does not apply to Workers Compensation Policies. C. Certificates of Insurance acceptable to the City of Oshkosh shall be submitted prior to commencement of the work to the applicable City department. These certificates shall contain a provision that coverage afforded under the policies will not be canceled or non renewed until at least 30 days' prior written notice has been given to the City Clerk — City of Oshkosh. II-3 CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYY) F THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Insurance Agency contact CONTACT NAME: Information, Including street PHONE - — Insurance Agent's - FA information. address and PO Box if contact I A/C. No. : (AIC. No): t Exl applicable. —) — ----- -- _ . -- -- - --- E-MAIL ADDRESS: INSURER() AFFORDING COVERAGE NAIC # INSURER A: ABC Insurance Company NAIC # INSURED Insured's contact information, INSURER B: XYZ Insurance Company NAIC # Including name, address and - - phone number. INSURERC: LMN Insurance Company - NAIC# INSURER D: Insurer(s) must have a minimum A.M. Best rating of A- - and a Financial Performance Rating of Vl or better. INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE AMY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER MM/DDIYYY MM/DD/YYY LIMITS GENERAL LIABILITY EACH OCCURRENCE J $ 1,000,000 ® COMMERCIAL GENERAL LIABILITY ® ❑ General Liability Policy Number Policy effective and expate, iration d DAMAGE TO TE PREMISES (Ea ocicur ence) $ 50,000 A ❑ CLAIMS -MADE OCCUR MED EXP (Any one person) $ 5 000 ISO FORM CG 20 37 OR EQUIVALENT ®) — PERSONAL & AD INJURY $ 1 000,000 GENERAL AGGREGATE $ 2,000,000 ❑ PRODUCTS - COMP/OP AGG $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: ❑ POLICY ® PRO-JECT ❑ LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) ---__---_---_____ $ 1,000,000_-- ® ANY AUTO ® ❑ INJURY_(Per person) $ Auto Liability Policy Number 1Poficy effective and expiration datO.1 B ❑ALL OWNED ❑ SCHEDULED AUTOS AUTOS _BODILY BODILY INJURY (Per accident) $ ❑HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE (Per accident) $ ❑ ❑ $ ® UMBRELLA LIAB ® OCCUR ® ElEACH OCCURRENCE $ 2 000,000 A ❑EXCESS LIAR ❑ CLAIMS -MADE AGGREGATE $ 2 000,000 Umbrella Liability Policy Number Policy effective and expiration date 10, - - - -- $ DED ® RETENTION $10,000 C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY El ❑ ® WC STATU- ❑ OTH- TORY LIMITS ER ANY PROPRIETOR/PARTNER/EXECUTIVE - ---- — -- - --- - OFFICE/MEMBER EXCLUDED? Y / N (Mandatory in NH) N If yes, describe under DESCRIPTION OF OPERATIONS below E.L.EACH ACCIDENT E_.L_. DISEASE_ EA EM__P__LOYEEI E.L. DISEASE POLICY LIMIT $ 100,000 $ 100,000 1 $ 500,000 Workers Compensation Policy Number Policy effective and expiration date. DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space is required) Additional Insureds per attached endorsements. Certificates of Insurance acceptable to the City of Oshkosh shall be submitted prior to commencement of the work to the applicable City department. These certificates shall contain a provision that coverage afforded under the policies will not be canceled or non renewed until at least 30 days' prior written notice has been given to the City Clerk — City of Oshkosh. CERTIFICATE HOLDER CANCELLATION City of Oshkosh, Attn: City Clerk Insurance Standard 11 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 215 Church Avenue SAMPLE CERTIFICATE THE EXPIRATION DATE, THEREOF, NOTICE WILL BE DELIVERED IN PO Box 1130 ACCORDANCE WITH THE POLICY PROVISIONS. Oshkosh, WI 54903-1130 Please indicate somewhere on this AUTHORIZED REPRESENTATIVE certificate, the contract or project # this certificate is for. ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: Policy # COMMERCIAL GENERAL LIABILITY CG 20 10 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL OWNERS, LESSEES CONTRACTORS - SCHEDULED PERSON OR This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Oraanization(s): Location(s) Of Covered Ooerations As required by contract Any and all job sites Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury', "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; In the performance of your ongoing operations for the additional insured(s) at the location(s) design- nated above. Insurance Standard 11 SAMPLE CERTIFICATE Please indicate somewhere on this certificate, the contract or project # this certificate is for. B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equip- ment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its in- tended use by any person or organization other than another contractor or subcontractor en- gaged in performing operations for a principal as a part of the same project. CG 20 10 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 ❑ POLICY NUMBER: Policy# COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location And Description Of Completed Operations As required by contract Any and all job sites Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property dam- age" caused, in whole or in part, by "your work" at the location designated and described in the sched- ule of this endorsement performed for that additional insured and included in the "products -completed operations hazard". Insurance Standard II SAMPLE CERTIFICATE Please indicate somewhere on this certificate, the contract or project # this certificate is for. CG 20 37 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 ❑ CITY OF OSHKOSH Contract Number Bond Number Date Bond Executed (Date of Contract or Later) PRINCIPAL/CONTRACTOR (Legal Name and Business Address) SURETY(IES) (Legal Name(s) and Business Address(es)) OWNER (Legal Name and Business Address) CITY OF OSHKOSH 215 Church Avenue PO Box 1130 Oshkosh, Wisconsin 54903-1130 OBLIGATION Type of Organization ❑ Individual ❑ Partnership ❑ Corporation State of Incorporation Penal Sum of Bond The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the amount of the penal sum identified above if the Owner accepts the bid of this Contractor within the time specified in the bid documents or within such time period as may be agreed upon between the Owner and the Contractor, and the Contractor shall fail to execute the Contract within five (5) business days of written notice to the Contractor and Surety of Owner's intent to make a claim upon this Bond. The Surety hereby waives any notice of an agreement between the Owner and Contractor to extend the time in which the Owner may accept the bid. If the Contractor either enters into a contract with Owner in accordance with the terms of the bid and gives such bond(s) that may be specified in the bidding documents for the faithful performance of the Contract and for the prompt payment of labor, materials and supplies furnished for the purpose thereof; or pays to the Owner the difference between the amount specified in the bid and such larger amount for which the Owner may in good faith contract with another party to perform the work covered in such bid, then the Surety and the Contractor shall have no obligation under this Bond. Notice to the Contractor or Surety shall be deemed to have been given: (i) upon delivery to an officer or person entitled to such notice, if hand delivered; or (ii) upon delivery if delivered by priority, registered or certified mail through the United States Postal Service; (iii) upon delivery by a commercial carrier that will certify the date and time of delivery; or (iv) upon transmission if by facsimile, email or other form of electronic transmission. Notices shall be provided to the Owner, Surety and/or Contractor at their address as specified on this Bond or to a facsimile, email or other electronic address that has been provided in writing to the other party to be used for this purpose. The laws of the State of Wisconsin shall govern the interpretation and construction of this Bond. Winnebago County shall be the venue for all disputes arising under this Bond. Any provision in this Bond that may conflict with statutory or other legal requirement shall be deemed deleted herefrom and provisions conforming to the statutory or other legal requirement shall be deemed incorporated herein. Name of Principal/Contractor Name of Surety Title Title PAYMENT BOND CITY OF OSHKOSH Contract Number Bond Number Date Bond Executed (Date of Contract or Later) PRINCIPAUCONTRACTOR (Legal Name and Business Address) SURETY(IES) (Legal Name(s) and Business Address(es)) OWNER (Legal Name and Business Address) CITY OF OSHKOSH 215 Church Avenue PO Box 1130 Oshkosh, Wisconsin 54903-1130 OBLIGATION Type of Organization ❑ Individual ❑ Partnership ❑ Corporation State of Incorporation Penal Sum of Bond The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Contract identified above, which is incorporated herein by reference, subject to the following terms. If the Contractor promptly makes payment of all sums due to claimants, and defends, indemnifies and holds harmless the Owner from all claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Contract, then the Surety and the Contractor shall have no obligation under this Bond. If there is no Owner Default to pay the Contractor as required under the Contract for work performed or to perform or complete any material term of the Contract, then the Surety(ies) obligation under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety. Amounts owed by the Owner to Contractor under the Contract shall be used for performance of the Contract and to satisfy claims, if any, under any Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. Upon notice and tendering of claims as specified above, the Surety shall promptly and at Surety's expense defend, indemnify and hold harmless the Owner against such claim, demand, lien or suit. Surety shall answer claimants, with a copy to Owner, within sixty (60) days of the date of the claim, stating the amount that are disputed and the specific basis for challenging any amount that is disputed or pay or arrange for payment of any undisputed amount claimed. Surety shall not be obligated to the Owner, claimants or others for obligations of the Contractor under this Bond that are unrelated to the Contract. The Owner shall not be liable for the payment of any costs or expenses of any claimant under this Bond and shall have no obligation to make payments to, or give notice on behalf of claimants, or otherwise have any obligation to claimants under this Bond. Notice to the Contractor or Surety shall be deemed to have been given: (i) upon delivery to an officer or person entitled to such notice, if hand delivered; or (ii) upon delivery if delivered by priority, registered or certified mail through the United States Postal Service; (iii) upon delivery by a commercial carrier that will certify the date and time of delivery; or (iv) upon transmission if by facsimile, email or other form of electronic transmission. Notices shall be provided to the Owner, Surety and/or Contractor at their address as specified on this Bond or to a facsimile, email or other electronic address that has been provided in writing to the other party to be used for this purpose. The laws of the State of Wisconsin shall govern the interpretation and construction of this Bond. Winnebago County shall be the venue for all disputes arising under this Bond. Any provision in this Bond that may conflict with statutory or other legal requirement shall be deemed deleted herefrom and provisions conforming to the statutory or other legal requirement shall be deemed incorporated herein. Name of Principal/Contractor Name of Surety Title Title PERFORMANCE BOND CITY OF OSHKOSH Contract Number Bond Number Date Bond Executed (Date of Contract or Later) PRINCIPAL/CONTRACTOR (Legal Name and Business Address) SURETY(IES) (Legal Name(s) and Business Address(es)) OWNER (Legal Name and Business Address) CITY OF OSHKOSH 215 Church Avenue PO Box 1130 Oshkosh, Wisconsin 54903-1130 OBLIGATION Type of Organization ❑ Individual ❑ Partnership ❑ Corporation State of Incorporation Penal Sum of Bond The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for payment of the sum shown above or the performance of the Contract identified above, which is incorporated herein by reference. This Bond shall cover any work performed during initial construction and any warranty period required by the Contract. If there is no Owner Default to pay the Contractor as required under the Contract for work performed or to perform or complete any material term of the Contract, then the Surety(ies) obligation under this Bond shall arise after: 4. The Owner provides notice to the Contractor and Surety that the Owner is considering declaring the Contractor in default of the Contract. Within five (5) business days of the Owner's notice, either the Contractor or the Surety may request a conference with the Owner to discuss such default and the remedy therefor. If a conference is requested, the conference shall be scheduled to take place at Owner's principal place of business or another agreed upon location within five (5) business days of the request for conference. If the Owner, Contractor and Surety agree, the Contractor may be allowed a reasonable time to perform the Contract, but such agreement shall not waive the Owner's right, if any, to subsequently declare the Contractor in default; 5. The Owner declares the Contractor in default and notifies the Surety of the declaration of default; and 6. The Owner agrees to pay the balance of the Contract price in accordance with the terms of the Contract to the Surety or to a qualified Contractor selected to perform the Contract. Failure of the Owner to comply with the notice requirement specified above shall not release the Surety from its obligations. Upon notice from the Owner as provided above, the Surety shall promptly and at Surety's expense take one of the following actions: 6. Arrange for the Contractor, with consent of the Owner, to perform and complete the Contract; 7. Undertake to perform and complete the Contract itself, through qualified agents or independent contractors; 8. Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner to enter into a contract with the Owner for performance and completion of the Contract, to be secured with performance and payment bonds, and to pay to the Owner as damages any amount in excess of the original contract amount for the completion of the Contract; any additional legal, design professional, architect, or consultant fees resulting from any delay in the completion of the Contract; and any applicable liquidated damages specified within the Contract resulting from any delay in the completion of the Contract. 9. Make payment to the Owner, as soon as practicable after an amount is determined for completion of the Contract; or 10. Deny liability in whole or in part and notify the Owner, citing with specificity the reasons for such denial. If the Surety does not proceed with reasonable promptness, Owner may give notice to the Surety and the Surety shall be deemed in default on this Bond five (5) business days after notice by the Owner demanding the Surety perform its obligations under this Bond. Owner shall be entitled to enforce any remedy available to Owner upon default. Except for default of the Surety and Surety's election to perform or complete the Contract itself under Paragraph 2 above, Surety's liability shall be limited to the amount of this Bond. Notice to the Contractor or Surety shall be deemed to have been given: (i) upon delivery to an officer or person entitled to such notice, if hand delivered; or (ii) upon delivery if delivered by priority, registered or certified mail through the United States Postal Service; (iii) upon delivery by a commercial carrier that will certify the date and time of delivery; or (iv) upon transmission if by facsimile, email or other form of electronic transmission. Notices shall be provided to the Owner, Surety and/or Contractor at their address as specified on this Bond or to a facsimile, email or other electronic address that has been provided in writing to the other party to be used for this purpose. The laws of the State of Wisconsin shall govern the interpretation and construction of this Bond. Winnebago County shall be the venue for all disputes arising under this Bond. Any provision in this Bond that may conflict with statutory or other legal requirement shall be deemed deleted herefrom and provisions conforming to the statutory or other legal requirement shall be deemed incorporated herein. The above obligation is void if the Contractor performs and fulfills all the terms, conditions and agreements of the Contract and any authorized modifications during the term of the original Contract and any extensions thereof. Notice to the Surety is waived for any modifications agreed upon by Owner and Contractor. Name of Principal/Contractor Name of Surety Title Title