Loading...
HomeMy WebLinkAbout05- 284.doc SEPTEMBER 16, 2005 05-284 RESOLUTION (CARRIED LOST 3-3 LAID OVER WITHDRAWN PURPOSE: ACCEPT DONATIONS AND APPROVE AGREEMENT WITH OSHKOSH FOUNDATION / CR MEYER FOR WATER PARK AT POLLOCK POOL SITE INITIATED BY: CITY ADMINISTRATION WHEREAS, various donations have been made by the community for the construction of a water park at the Pollock Pool Site; and WHEREAS, it is appropriate for the Common Council to acknowledge and accept such donations and all future contributions to this project; WHEREAS, the Oshkosh Foundation has coordinated the efforts to raise money for the construction of the water park and has established funds for the payment of design services and construction costs for the construction of a community water park; and WHEREAS, §62.15 of the Wisconsin Statutes allows municipalities to accept the donation of materials and/or labor for public construction as an exception to the requirements of the public bidding statute; and WHEREAS, the Oshkosh Foundation and the underlying donors are desirous of contracting with CR Meyer for the construction of the water park facility. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that, on behalf of the residents of this community, the City acknowledges with deep gratitude and appreciation the generous donations of all contributors to the water park project at the Pollock Pool site and that the proper City officials are authorized and directed to take those steps necessary to accept these donations and acknowledge these philanthropic activities. BE IT FURTHER RESOLVED that the attached agreement with the Oshkosh Area Community Foundation and CR Meyer for design and construction of a water park facility at the Pollack Pool site is hereby approved and the proper City officials are hereby authorized to execute and deliver the agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Agreement. 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 property for REPLACEMENT OF Pollock Pool in the City of Oshkosh; and WHEREAS, the City has identified the expansion area of Pollock Water Park as a site for public improvements; and WHEREAS, §62.15 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 Pollock Water Park; 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 Water Park; and WHEREAS, the Water Park 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: Part One - Design Services Article I. Responsibilities of CR Meyer CR Meyer shall : 1.1 1.2 Assign qualified architects and other design professionals to perform the design services required under this contract. 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 1.3 1.4 1.5 1.6 1.7 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 water park. 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. Make revisions to the preliminary design documents, budget or other documents as directed by the Foundation and City of Oshkosh. 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 water park, its architectural, structural, mechanical and electrical systems, and the materials and such other elements of the project as may be appropriate. Have construction budgets prepared by qualified professionals, cost estimators or contractors. Article II -- City Obligations The City shall: 2.1 2.2 2.3 2.4 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. 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. designate the Director of Parks to coordinate the project on the City's behalf. The City through the Director of Parks shall render decisions in a timely manner pertaining to 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. 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, 2 2.5 2.6 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. 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. furnish evaluations of hazardous materials. Article III - Foundation Obligations The Foundation shall: 3.1 3.2 3.3 Coordinate donations received for the purpose of constructing the pool facility on the site. Participate on the Steering Committee. Make payments of amounts due in accordance with Article VI of this agreement. Article IV - Ownership and Use of Documents and Electronic Data 4.1 4.2 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. 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. 3 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 Payment shall be made to CR Meyer upon receipt of funds by Foundation within three business days of such receipt of funds until the entire balance of $5,975,000.00 is paid. Part Seven - Dispute Resolution - Mediation and Arbitration 7.1 7.2 7.3 7.4 7.5 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. 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. 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. 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. 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 8.2 This agreement shall be governed by the laws of the State of Wisconsin. This agreement shall be binding upon the parties hereto, their heirs, 4 8.3 successors and assigns. No party shall assign this agreement without the written consent of all other parties. This agreement represents the entire agreement between the parties and supersedes any and all prior negotiations, representations or agreements, either written or oral. This agreement may only be amended by written instrument signed by all parties. Article 9 -- Termination of Agreement 9.1 9.2 9.3 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. This agreement may be terminated by the City or Foundation without cause upon at least seven (7) days written notice to the other parties. 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. Part 2 Agreement - Construction Article I -- Basic Definitions 1.1 1.2 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. 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 2.2 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. 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, 5 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 3.2 3.3 3.4 3.5 3.6 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. furnish services of engineers and environmental consultants when necessary to properly carry out the responsibilities of this agreement. disclose, all information known to the city regarding the presence of pollutants, hazardous materials or other environmental conditions at the project site. Give prompt written notice to Peter LeCompte of CR Meyer through the Director of Parks 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. 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. Give CR Meyer Notice to Proceed. Article IV .- CR Meyer Services and Responsibilities 4.1 4.2 4.3 4.4 4.5 Design services required by this Part 2 agreement shall be performed by qualified architects and other design professionals. 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. CR Meyer shall designate a representative authorized to act on CR Meyer's behalf with respect to this project. 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. CR Meyer, with the assistance of the City of Oshkosh, shall file documents required to obtain necessary approvals of governmental authorities having 6 4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 jurisdiction over the project. CR Meyer shall promptly notify the City of Oshkosh when all permits have been obtained to enable the project to proceed. 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. 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 7 4.17 4.18 4.19 Article V. 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 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. 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. 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. 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. 8 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 P). 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 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 P). 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. I n 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 aii safety precautions and programs in connection with the performance of this Part 2 Agreement. 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, 9.2 9 9.3 (2) the work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of CR Meyer or CR Meyer's contractors; and (3) other property at or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 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. 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. 9.4 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 REQUIREMENTS FOR CONTRACTOR-LIABILITY. BONDS & PROPERTY 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. 2. 3. 4. 5. 6. 7. B. General aggregate limit (other than Products-Completed Operations) Products-Completed Operations aggregate Personal and Advertising Injury limit Each Occurrence limit Fire Damage limit - anyone fire Medical Expense limit - anyone person 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. Products - Completed Operations coverage must be carried for one year after completion of work. per project $2,000,000 2,000,000 1,000,000 1,000,000 50,000 5,000 Automobile Liability coverage at least as broad as Insurance Services 10 . A. 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 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. 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 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 contained in Section I. above. 10.3 APPLICABLE TO CONTRACTORS/SUBCONTRACTORS/SUB-SUB CONTRACTORS 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. 11 B. C. 10.4 The City of Oshkosh, the City of Oshkosh's elected or appointed officials, and employees shall be named as additional insureds on all Liability policies for liability arising out of project work, except for Professional Liability policy. 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. City Responsibilities. 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 provided by CR Meyer. Article XI - Indemnification 11.1 11.2 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. 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. 12 Article XI - Correction of Work 13.1 13.2 13.3 13.4 13.5 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 hear the costs of correcting such rejected work, including any additional testing or inspections required thereby. 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. 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 documents. The one year time period established in section 11.2 relates only to the specific obligation of CR Meyer to correct the work and has no relationship to the time within which the obligation to comply with the contract documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish CR Meyers liability with respect to its' obligations other than the obligation to specifically correct the work. 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. If CR Meyer defaults or neglects to carry out the work in accordance with the contract documents and fails within seven (7) days after receipt of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness, the City may give a second written notice to CR Meyer and seven (7) days following receipt by CR Meyer of such second notice, the City may, without prejudice to any other remedies that it may have at law or equity, correct such deficiencies. In such case an appropriate change order shall be issued deducting from the payments then or thereafter due to CR Meyer, the costs of correcting such deficiencies. If the payments then or thereafter due are not sufficient to cover the amount of the deduction, the City shall invoice the difference to CR Meyer and CR Meyer shall pay the difference to the City within thirty (30) days of such invoice. 13 Article XIV - Work by the City of Oshkosh I Public Construction Contractors 14.1 14.2 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 because of such action 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. CR Meyer shall afford the City's employees or separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities and shall connect and coordinate CR Meyer's construction and operations with theirs as required. Article XV - Time 15.1 15.2 15.3 15.4 15.5 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. 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. 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. 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 May 31,2006. 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. 14 Article XVI - Dispute Resolution - Mediation and Arbitration 16.1 16.2 16.3 16.4 16.5 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. 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. 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. 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. 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 17.2 17.3 17.4 This agreement shall be governed by the laws of the State of Wisconsin. 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. 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. This agreement represents the entire agreement between the parties and supersedes any and all prior negotiations, representations or agreements, either written or oral. This agreement may only be amended by written instrument signed by all parties. 15 Article XVIII -- Termination of Agreement 18.1 18.2 18.3 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. 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 party seeking to correct the default, failure or neglect may then give a second written notice and, after an additional seven (7) days, the City and/or Foundation may without prejudice to any other remedy terminate the employment of CR Meyer and take possession of the site and of all materials, equipment, tools and construction equipment and machinery thereon owned by CR Meyer and finish the work by whatever method deemed most expedient. If the unpaid balance of the contract sum exceeds the expense of finishing the work and all damages incurred by the Foundation and City, such excess shall be paid to CR Meyer. If the expense of completing the work and all damages incurred by the Foundation and City exceed the unpaid balance, the City shall invoice CR Meyer for the difference and CR Meyer shall pay the difference within 30 days of receipt of invoice. This obligation for payment shall survive termination of this Part 2 Agreement. If the Foundation fails to make payment when due, CR Meyer may give written notice of CR Meyer's intention to terminate this Part 2 Agreement. Notice Shall be given to the Foundation with a copy of such notice to be given to the City of Oshkosh. If CR Meyer fails to make payment within seven (7) days after receipt of such notice, CR Meyer may give a second written notice and, seven (7) days after receipt of such second written notice by the Foundation, CR Meyer may terminate this Part 2 Agreement. If such termination occurs, CR Meyer shall be compensated for work completed to the termination date, together with reimbursable expenses then due. Article XIX -- Notices 19.1 Notices required to be given under this Agreement shall be given as follows: 16 To the City of Oshkosh: Mr. Tom Stephany Director of Parks 215 Church Avenue P.O. Box 1130 Oshkosh,VVI54903-1130 To the Oshkosh Community Foundation: Ms. Eileen Connolly-Keesler Oshkosh Area Community Foundation 404 W. Main Oshkosh,VVl54901 To CR Meyer: Mr. Peter LeCompte CR Meyer and Sons Company 895 West 20th Avenue P.O. Box 2157 Oshkosh,VVI54903-2157 This Agreement entered in this day of CITY OF OSHKOSH Richard A. Wollangk City Manager Pamela R. Ubrig City Clerk APPROVED: Lynn A. Lorenson Assistant City Attorney ,2005. 17