HomeMy WebLinkAboutCR Meyer & Sons
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Agreement Between
the City of Oshkosh,
The Oshkosh Area Community Foundation
and CR Meyer and Sons Company
This agreement is between the City of Oshkosh ("City"); The Oshkosh Area
Community Foundation ("Foundation") and CR Meyer and Sons Company ("CR
Meyer").
WHEREAS, the City has acquired property for an addition to Riverside Park in
the City of Oshkosh; and
WHEREAS, the City has identified the expansion area of Riverside Park as a site
for public improvements in its downtown improvement plan including the construction of
outdoor concert facilities comprised of a band shell structure and surrounding
amphitheater; and
WHEREAS, S62.15 of the Wisconsin Statutes allows municipalities to accept
donation of materials and/or labor for public construction as an exception to the
requirements of the public bidding statute; and
WHEREAS, the Foundation has received donations for the construction of a
band shell structure as part of the Riverside Park expansion; and
WHEREAS, the Foundation and the underlying donors are desirous of
contracting with CR Meyer for construction of the improvements; and
WHEREAS, CR Meyer has assisted with the coordination of donations for the
site improvements and wishes to provide design and construction services relative to
the construction of the band shell; and
WHEREAS, the band shell structure will become the property of the City of
Oshkosh upon its completion.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties do hereby agree to the following terms and conditions of this agreement:
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Part One - Design Services
Article I. Responsibilities of CR Meyer
CR Meyer shall :
1.1 Assign qualified architects and other design professionals to perform the
design services required under this contract.
1.2 visit the site, become familiar with local conditions, and correlate observable
conditions with the requirements of the City of Oshkosh's site plans,
schedule and the anticipated budget for the project.
1,3 Review the alternative approaches to design and construction of the project
and coordinate with the Foundation, the staff of the City of Oshkosh, and the
steering committee in the design of the band shell and amphitheater project.
1.4 Review the laws applicable to design and construction of the project and
advise the City of Oshkosh and the steering committee of any conflicts
between legal requirements and the proposed project plans.
1.5 Make revisions to the preliminary design documents, budget or other
documents as directed by the Foundation and City of Oshkosh,
1.6 Submit to the City of Oshkosh and the Foundation a proposal, including the
completed preliminary design documents, a statement of the proposed
contract sum, and a proposed schedule for completion of the project.
Preliminary design documents shall consist of preliminary design drawings,
outline specifications or other documents sufficient to establish the size,
quality and character of the band shell project, its architectural, structural,
mechanical and electrical systems, and the materials and such other
elements of the project as may be appropriate.
1.7 Have construction budgets prepared by qualified professionals, cost
estimators or contractors.
Article II -- City Obligations
The City shall:
2.1 provide full information in a timely manner regarding the requirements for the
project, including the city's objectives, schedule and constraints relating to
the project.
2,2 develop an overall plan for the site, including plans and budgets for those
portions of the site development of which are not included within this
agreement.
2.3 designate the Director of Community Development to coordinate the project
on the City's behalf. The City through the Director of Community
Development shall render decisions in a timely manner pertaining to
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documents submitted by the Design/Builder in order to avoid unreasonable
delay in the orderly and sequential progress of the Design/Builder's services.
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.
2.4 furnish surveys or other documentation describing physical characteristics,
legal limitations and utility locations for the site of the project, and a written
legal description of the site. The surveys and legal information shall include,
as applicable, grades and lines of streets, alleys, 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, including inverts and depths.
2.5 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.
2.6 furnish the services of geotechnical engineers when such services are
deemed necessary to assist CR Meyer in the preparation of design plans
for the site. Such services may include, but not limited to test borings, test
pits, determinations of soil bearing values, evaluations of hazardous
materials, ground corrosion and resistivity tests and necessary operations
for anticipating subsoil conditions. The services of geotechnical engineers
or other consultants shall include preparation and submission of all
appropriate reports and professional recommendations.
Article III - Foundation Obligations
The Foundation shall:
3.1 Coordinate donations received for the purpose of constructing the bandshell
facility on the site.
3.2 Participate on the Steering Committee.
3.3 Make payments of amounts due in accordance with Article VI of this
agreement.
Article IV - Ownership and Use of Documents and Electronic Data
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4.1 Drawings, specifications and other documents and electronic data are
furnished for use solely with respect to this project. The City shall be
permitted to retain copies, including reproducible copies of the drawings,
specifications and other documents and electronic data furnished by CR
Meyer for information and reference in connection with the project subject to
the provisions contained in 4.2 and 4.3 below.
4.2 If CR Meyer is not retained to complete the Construction of the project under
Part II of this agreement, the Foundation and City shall not use the drawings,
specifications, and other documents and electronic data furnished by CR
Meyer without the written permission of CR Meyer. Drawings, specifications,
and other documents and electronic data shall not be used by the City or
Foundation on other projects, for additions to this project or for completion of
this project by others except by agreement in writing by CR Meyer. Except if
CR Meyer defaults upon its obligations in regard to this agreement,
drawings, specifications and other documents and electronic data may be
used to complete the project.
4.3 IF CR Meyer defaults in its obligations to the Foundation or City, CR Meyer
shall grant a license to the City and Foundation to use the drawings,
specifications, and other documents and electronic data for the completion of
the project.
Article V - Time
5.1 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 other public projects proposed for
the overall park site. 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.
5.2 If CR Meyer is delayed in the performance of services through no fault of CR
Meyer such schedule shall be equitably adjusted.
Article VI - Payments
6.1 An initial payment of Three Hundred Thousand Dollars ($300,000.00) shall
be made upon execution of this contract and credited to the project account.
6.2 Subsequent payments shall be made as follows:
Three Hundred Thousand Dollars ($300,000.00) to be paid on or before
December 31, 2004.
Two Hundred Eighty-eight Thousand Eight Hundred Fifty Dollars
($288,850.00) to be paid on or before March 31,2005.
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6.3 Interest for late payments. The rate of interest for late payments shall be:
Prime plus three percent (3%)
Part Seven - Dispute Resolution - Mediation and Arbitration
7.1 Claims, disputes or other matters in question between the parties to this
agreement arising out of or relating to the agreement or breach thereof shall
be subject to and decided by mediation or arbitration. Such
Mediation/Arbitration shall be conducted pursuant to Chapter 788 of the
Wisconsin Statutes.
7.2 In addition to and prior to arbitration, the parties shall endeavor to settle
disputes by mediation. Demand for mediation shall be filed in writing with the
other parties. A demand for mediation shall be made within a reasonable
time after the claim, dispute or other matter in question has arisen. In no
event shall the demand for mediation be made after the date when institution
of a legal or equitable proceeding based on such claim, dispute or other
matter in question would be barred by the applicable statute of limitations.
The parties shall mutually agree upon a mediator to assist the parties in the
mediation process.
7.3 Demand for arbitration shall be filed in writing with the other parties. A
demand for arbitration shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen. In no event shall the
demand for arbitration be made after the date when institution of a legal or
equitable proceeding based on such claim, dispute or other matter in
question would be barred by the applicable statute of limitations.
7.4 An arbitration pursuant to this paragraph shall be heard by an arbitrator
mutually agreed upon by all parties to the arbitration or by a panel of
arbitrators comprised of one arbitrator selected by each party to this
agreement.
7.5 The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with the applicable law in
any court having jurisdiction thereof.
Article 8 -- Miscellaneous Provisions
8.1 This agreement shall be governed by the laws of the State of Wisconsin.
8.2 This agreement shall be binding upon the parties hereto, their heirs,
successors and assigns. No party shall assign this agreement without the
written consent of all other parties.
8.3 This agreement represents the entire agreement between the parties and
supercedes any and all prior negotiations, representations or agreements,
either written or oral. This agreement may only be amended by written
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instrument signed by all parties.
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.
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Part 2 Agreement - Construction
Article I - Basic Definitions
1.1 The contract documents consist of the Part 1 Agreement to the extent not
modified by this Part 2 Agreement, this Part 2 Agreement, CR Meyer's
proposal and written addenda to the Proposal, the Construction documents
approved by City and Foundation, and modifications issues after execution of
this Part 2 Agreement. A modification is a Change Order signed by all
parties.
1 .2 The term "work" shall mean the construction and services provided by CR
Meyer to fulfill its obligations under this Agreement.
Article II - Ownership and Use of Documents and Electronic Data
2.1 Drawings, specifications and other documents and electronic data are
furnished for use solely with respect to this project. The City shall be
permitted to retain copies, including reproducible copies of the drawings,
specifications and other documents and electronic data furnished by CR
Meyer for information and reference in connection with the project subject to
the provisions contained in 2.2 and 2.3 below.
2.2 If CR Meyer is not retained to complete the Construction of the project under
Part II of this agreement, the Foundation and City shall not use the drawings,
specifications, and other documents and electronic data furnished by CR
Meyer without the written permission of CR Meyer. Drawings, specifications,
and other documents and electronic data shall not be used by the City or
Foundation on other projects, for additions to this project or for completion of
this project by others except by agreement in writing by CR Meyer. Except if
CR Meyer defaults upon its obligations in regard to this agreement,
drawings, specifications and other documents and electronic data may be
used to complete the project.
2.3 If CR Meyer defaults in its obligations to the Foundation or City, CR Meyer
shall grant a license to the City and Foundation to use the drawings,
specifications, and other documents and electronic data for the completion of
the project.
Article III -- Responsibilities of the City of Oshkosh
The City shall:
3.1 cooperate with the Design/Builder in securing building and other permits,
licenses and inspections. Any costs or fees, other than those payable to the
City of Oshkosh, shall be included in the proposal.
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3.2 furnish services of engineers and environmental consultants when necessary
to properly carry out the responsibilities of this agreement
3.3 disclose, all information known to the city regarding the presence of
pollutants, hazardous materials or other environmental conditions at the
project site.
3.4 Give prompt written notice to Peter La Compte of CR Meyer through the
Director of Community Development of any fault or defect in the work or
nonconformity with the proposal or construction documents which the City
observes or otherwise becomes aware of.
3.5 communicate with persons or entities employed or retained by CR Meyer
in connection with this project through CR Meyer unless otherwise
directed by CR Meyer.
3.6 Give CR Meyer Notice to Proceed.
Article IV -- CR Meyer Services and Responsibilities
4.1 Design services required by this Part 2 agreement shall be performed by
qualified architects and other design professionals.
4.2 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 under this Part 2 agreement
4.3 CR Meyer shall designate a representative authorized to act on CR Meyer's
behalf with respect to this project
4.4 CR Meyer shall submit construction documents for review and approval by
the City and Foundation. 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.
4.5 CR Meyer, with the assistance of the City of Oshkosh, shall file documents
required to obtain necessary approvals of governmental authorities having
jurisdiction over the project
4.6 CR Meyer shall promptly notify the City of Oshkosh when all permits have
been obtained to enable the project to proceed.
4.7 CR Meyer shall provide or cause to be provided and shall pay for all design
services, labor, materials, equipment, tools, construction equipment and
machinery, water, heat, temporary utilities, 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.
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4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
4.16
4.17
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CR Meyer shall be responsible for all construction means, methods,
techniques, sequences and procedures, and for coordinating all portions of
the work under this part 2 agreement
CR Meyer shall keep the City of Oshkosh and the Foundation informed of
the progress and quality of the work.
CR Meyer shall be responsible for correcting work which does not conform to
the contract documents.
CR Meyer warrants that all materials and equipment furnished under the
contract 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 with the requirements of the
contract documents. Construction not conforming to these requirements
shall be corrected.
CR Meyer shall 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 of Oshkosh, licenses and inspections
necessary for the proper execution and completion of the work.
CR Meyer shall comply with and give notices required by laws, ordinances,
rules, regulations and lawful orders of public authorities relating to the
project
CR Meyer shall pay all royalties and license fees for patented designs,
processes or products and shall defend all suits or claims for infringement of
patent rights and shall hold the City and Foundation harmless from loss on
account thereof.
CR Meyer shall keep the premises and surrounding area free from the
accumulation of waste materials or rubbish caused by operations under this
Part 2 agreement At the completion of the work, CR Meyer shall remove
from the site waste materials, rubbish, tools, construction equipment,
machinery and surplus materials.
CR Meyer shall 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 of Substantial completion, shall
state the responsibility of each party for security, maintenance, heat, utilities,
damage to the work and insurance. 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.
CR Meyer shall maintain one record copy of the drawings, specifications,
product data, samples, product warranties, shop drawings, change orders
and other modifications at CR Meyer's offices and in good order and
regularly updated to record the completed construction. These shall be
delivered to the City of Oshkosh Public Works Department upon completion
of construction and prior to final payment In addition, CR Meyer shall
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provide either a blanket lien waiver covering all subcontractors for the project
or individual lien waivers from all subcontractors upon completion of the
project and prior to final payment.
4.18 CR Meyer shall coordinate with the City of Oshkosh, its employees,
contractors and agents in coordination of construction performed by the City
of Oshkosh or its contractors or agents.
4.19 If CR Meyer is delayed at any time in the progress of the work by an act or
neglect of the City of Oshkosh, Foundation, or the employees of either, or
separate contractors employed by the City of Oshkosh, or by 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.
Article V.
Health and Safety
The services to be performed under this agreement may be on and/or
adjacent to a site, which contains hazardous substances on the surface
and/or subsurface. Therefore, in performance of the services, CR Meyer
shall itself satisfy and cause all subcontractors to satisfy, as a minimum, all
federal, state, and local statutes, regulations, ordinances, and lawful orders
by public authorities regarding health and safety, including, but not limited to,
Title 29 CFR 1910.120 Hazardous Waste Operations and Emergency
Response, U.S. Department of Labor, Occupational Safety and Health
Administration (OSHA).
Where required by the Wisconsin Department of Natural Resources or by the
City of Oshkosh, CR Meyer shall also develop and implement a Health and
Safety Plan for the site, which shall be approved by a designated
representative of CR Meyer and provided to the City of Oshkosh upon
request. CR Meyer shall remain liable for compliance by its employees,
agents, and lower tier subcontractors with the Health and Safety Plan and
procedures for the site and shall indemnify and hold the City harmless from
all claims, damages, suits, losses and expenses in any way arising from non-
compliance with the Health and Safety Plan.
Current regulations promulgated by OSHA require that a "competent person"
conduct inspections of excavations and review any supporting system, if
workers are to enter the excavations. See Title 29 CFR Part 1926 (Subpart
Pl. In the event that services to be performed by CR Meyer under this
Agreement include entry into an excavation by CR Meyer's employees or
employees of its lower tier subcontractors, CR Meyer shall furnish a properly
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qualified "competent person" and shall be responsible for the duties of
inspection and/or monitoring of excavations required of the "competent
person" under Title 29 CFR Part 1926 (Subpart Pl.
CR Meyer shall provide to the City of Oshkosh Material Safety Data Sheet
(MSDS) upon request for any chemical products to be used by CR Meyer on
the project site premises. In providing notifications and MSDS, CR Meyer
shall comply with the standards set forth in Title 29 CFR 1910.1200.
Article VI
Contaminated Material
Except as expressly set forth for an assignment, CR Meyer is not, and has
no authority to act as, a handler, generator, operator, treater or storer,
transporter, or disposer of hazardous or toxic substances found or identified
at the site, and the City of Oshkosh shall undertake all such functions.
In the event that CR Meyer undertakes or assumes any of the activities
enumerated in the preceding paragraph without written authorization of the
City, CR Meyer assumes the risk of, and shall indemnify, defend and hold
harmless the City from any and all claims, damages, suits, losses and
expenses in any way arising from such activities.
Article VII - Foundation Responsibilities
7.1 The Foundation shall make payments for work completed in accordance with
Article VI of the Part 1 Agreement
Article VIII - Payments
8.1 Payment shall be made as provided in Article VI of the Part 1 Agreement
Article IX - Protection of Persons and Property
9.1 CR Meyer shall be responsible for initiating, maintaining and providing
supervision of all safety precautions and programs in connection with the
performance of this Part 2 Agreement
9.2 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
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designated for removal, relocation or replacement in the course of
construction.
9.3 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.
9.4 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 X -- Insurance and Bonds
CR Meyer shall not commence work under this contract until it has obtained all insurance
required under this paragraph and such insurance has been approved by the City, nor
shall CR Meyer allow any Subcontractor to commence work on subcontract until all similar
insurance required of the Subcontractor has been obtained and approved.
10.1 INSURANCE REQUIRFMENTS FOR CONTRACTOR-liABILITY RONnS &
PROPFRTY
A. Commercial General Liability coverage at least as broad as Insurance Services
Office Forms #CG 00 01 07 98 and #CG 25 03 11 85, including coverage for
Products Liability, Completed Operations, Contractual Liability, and Explosion,
Collapse, Underground coverage with the following minimum limits:
1. General aggregate limit (other than
Products-Completed Operations) per project $2,000,000
2. Products-Completed Operations aggregate 2,000,000
3. Personal and Advertising Injury limit 1,000,000
4. Each Occurrence limit 1,000,000
5. Fire Damage limit - anyone fire 50,000
6. Medical Expense limit - anyone 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 one
year after completion of work.
B. Automobile Liability coverage at least as broad as Insurance Services Office Form
#CA 0001 0797, 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
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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 $1 0,000.
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. Professional Liability. Each Claim -- $500,000.00; annual aggregate -- $1,000,000.00.
coverage must continue for 2 years after final payment for services.
10.2 INSURANCE REOIJlREMENTS FOR SIJRCONTRACTOR
. 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 contained in Section I. above.
10.3 APPIICABI F TO CONTRACTORS/SlJRCONTRACTORS/SlJB-SUB
CONTRACTORS
A Acceptability of Insurers. Insurance is to be placed with insurers who have a Best's
Insurance Reports 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. The City of Oshkosh, the City of Oshkosh's elected or appointed officials, and
employees shall be named as additional insureds on all Liahility policies for liability
arising out of project work, except for Professional Liability policy.
C. Certificates of Insurance acceptable to the City of Oshkosh shall be submitted prior
to commencement of the work to City Clerk - City of Oshkosh. 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 of Oshkosh.
10.4 City Responsihilities
The City of Oshkosh shall provide Property Coverage (Builder's Risk) on a
replacement cost basis which shall cover property on the project work sites and
property in transit Any additional coverage desired by the contractor shall be
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provided by CR Meyer.
Article XI --Indemnification
11.1 To the fullest extent permitted by law, CR Meyer shall indemnify and hold harmless
the City of Oshkosh 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 the work, provided that such claim, damage, loss or expense
is attributable to bodily injury, sickness, disease or death, or injury to or destruction
of tangible property (other than the work itself) including loss of use resulting
therefrom, but only to the extent caused in whole or in part by negligent acts or
omissions of CR Meyer, anyone directly or indirectly employed by CR Meyer or
anyone for whose acts CR Meyer may be liable, regardless of whether or not such
claim, damage, loss or expense is caused in part by a party indemnified hereunder.
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.
11.2 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 XII -- Changes in the Work
12.1 Changes in the Work may be accomplished after execution of this Part 2
Agreement without invalidating this Part 2 Agreement by Change Order,
Article XI - Correction of Work
13.1 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.
13.2 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, unless the City has previously
given notice to CR Meyer of acceptance of such condition.
13.3 Nothing in this article shall be construed to establish a period of limitation
with respect to other obligations that CR Meyer may have under the contract
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documents. The one year time period established in section 11.2 relates
only to the specific obligation of CR Meyer to correct the work ~nd 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 Meyers liability with
respect to its' obligations other than the obligation to specifically correct the
work.
13.4 If CR Meyer fails to correct nonconforming work as required or fails to carry
out work in accordance with the contract documents, 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 or entities.
13.5 If CR Meyer defaults or neglects to carry out the work in accordance with the
contract documetns 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 XIV _ Work by the City of Oshkosh I Public Construction Contractors
14.1 The City of Oshkosh reserves the right to perform construction or operations
related to the park project with the City's own employees and to award
separate contracts in connection with other portions of the Project or other
construction or operations on the site under conditions of insurance identical
to the provisions of this Part 2 Agreement. If CR Meyer claims that delay is
involved because of such action by the City, CR Meyer shall notify the City
and Foundation of such claims and the parties may adjust the contract time
pursuant to Article XIII below. If CR Meyer claims that additional cost is
involved bec~use of such a?tion by the City, CR Meyer shall notify the City
and Foundation of such claims and the parties may enter into a change order
If necessary to account for such additional cost.
14.2 CR Meyer shall afford the City's employees or separate contractors
rea~onable opportunity for introduction and storage of their materials and
equipment and performance of their activities and shall connect and
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coordinate CR Meyer's construction and operations with theirs as required.
Article XV - Time
15.1 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.
15.2 Time limits stated in the contract documents are of the essence. The work to
be performed under this Part 2 Agreement shall commence upon receipt of a
notice to proceed unless otherwise agreed.
15.3 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 of Oshkosh may occupy and utilize the
work for its intended use.
15.4 Based upon the proposal submitted by CR Meyer, a construction schedule
shall be submitted and, subject to authorized modifications, substantial
completion shall be achieved on or before One Hundred Fifty (150) days
after the date of the Notice to Proceed.
15.5 If CR Meyer is delayed at any time in the progress of the work by an act 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 of Oshkosh 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
by Change Order.
Article XVI - Dispute Resolution - Mediation and Arbitration
16.1 Claims, disputes or other matters in question between the parties to this
agreement arising out of or relating to the agreement or breach thereof shall
be subject to and decided by mediation or arbitration. Such
Mediation/Arbitration shall be conducted pursuant to Chapter 788 of the
Wisconsin Statutes.
16.2 In addition to and prior to arbitration, the parties shall endeavor to settle
disputes by mediation. Demand for mediation shall be filed in writing with the
other parties. A demand for mediation shall be made within a reasonable
time after the claim, dispute or other matter in question has arisen. In no
event shall the demand for mediation be made after the date when institution
of a legal or equitable proceeding based on such claim, dispute or other
matter in question would be barred by the applicable statute of limitations.
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The parties shall mutually agree upon a mediator to assist the parties in the
mediation process.
16.3 Demand for arbitration shall be filed in writing with the other parties. A
demand for arbitration shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen. In no event shall the
demand for arbitration be made after the date when institution of a legal or
equitable proceeding based on such claim, dispute or other matter in
question would be barred by the applicable statute of limitations.
16.4 An arbitration pursuant to this paragraph shall be heard by an arbitrator
mutually agreed upon by all parties to the arbitration or by a panel of
arbitrators comprised of one arbitrator selected by each party to this
agreement.
16.5 The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with the applicable law in
any court having jurisdiction thereof.
Article XVII -- Miscellaneous Provisions
17.1 This agreement shall be govemed by the laws of the State of Wisconsin.
17.2 This agreement shall be binding upon the parties hereto, their heirs,
successors and assigns. No party shall assign this agreement without the
written consent of all other parties.
17.3 CR Meyer shall as soon as practicable after the execution of this Part 2
Agreement provide to the City and Foundation in writing the names of the
persons or entities CR Meyer will engage as contractors for the project.
17.4 This agreement represents the entire agreement between the parties and
supercedes 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.
Article XVIII -- Termination of Agreement
18.1 This Part 2 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.
18.2 If CR Meyer defaults or persistently fails or neglects to carry out the work in
accordance with the Contract Documents or fails to perform the provisions of
this Part 2 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
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To the Oshkosh Community Foundation:
Ms. Eileen Connolly-Keesler
Oshkosh Area Community Foundation
404 W. Main
Oshkosh, WI 54901
To CR Meyer:
Mr. Peter La Compte
CR Meyer and Sons Company
895 West 20th Avenue
P.O. Box 2157
Oshkosh, WI 54903-2157
This Agreement entered into this /?-daYOf April, 2004.
CITY OF OSHKOSH
'7/11~
Richard A. Wollangk
City Manager
,
Pamela R. Ubrig
City Clerk
()
By: . (~Ji7 b. ~&isv""""'/
Its': S~
OSHKOSH COMMUNITY FOUNDATION
2kh On'\Y\o~~~<,.,(~~
By: . ,/
Its': -zj - 13. 0 l
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