HomeMy WebLinkAbout07. 12-413
AUGUST 28, 2012 12-413 RESOLUTION
(CARRIED___6-0___ LOST _______ LAID OVER _______ WITHDRAWN _______)
PURPOSE: ACCEPT DONATIONS AND APPROVE AGREEMENT WITH
OSHKOSH AREA COMMUNITY FOUNDATION / NEUMAN POOLS,
INC., FOR RIVER OTTER EXHIBIT AT MENOMINEE PARK ZOO
INITIATED BY: PARKS DEPARTMENT
ADVISORY PARKS BOARD RECOMMENDATION: Recommend Approval
WHEREAS, a River Otter Exhibit has been identified in the existing Menominee
Park Zoo Master Plan; and
WHEREAS, various donations have been made by the community for the
construction of a River Otter Exhibit at Menominee Park Zoo; and
WHEREAS, the Oshkosh Area Community Foundation has coordinated the effort to
raise money for the construction of the River Otter exhibit and has established funds for
the payment of design services and construction costs, including the donation of all labor
costs through an agreement between the Foundation and Neuman Pools, Inc., for the
construction of a River Otter Exhibit; and
WHEREAS, it is appropriate for the Common Council to acknowledge and accept
such donations and all future contributions to this project;
WHEREAS, the necessary funding level has been reached to go forward with the
project from a combination of previously budgeted funds and donated funds; and
WHEREAS, §62.15 of the Wisconsin Statutes allows municipalities to accept the
donation of materials and/or labor for public construction as an exception to the
requirements of the public bidding statute; and
WHEREAS, the Oshkosh Area Community Foundation is donating all labor for the
public construction; and
WHEREAS, the gift of the River Otter exhibit is consistent with the following
guidelines established by City of Oshkosh Gifts and Donations policy, in that this donation:
is consistent with the mission, policies and master plans governing the City
of Oshkosh and the Parks Department
AUGUST 28, 2012 12-413 RESOLUTION
CONT'D
helps to promote conservation, preservation and protection of the natural
environment
provides a new or different experience for the public
is suitable for the purpose proposed
is compatible with the proposed location
is harmonious in quality, scale and character with existing improvements and
features in the area
is a traditional park or municipal amenity
is suitable to the environmental conditions of public display
is suitable to the technical requirements or design standards for installation
of improvements in public places
complies with all applicable codes including building codes
Whereas, the City of Oshkosh Gifts and Donation Policy allows the City to take on
future maintenance costs related to a gift upon consideration of:
The community's need or desire for the donation or improvement;
Whether, and to what extent, the proposed gift/donation provides new or
diverse experiences for community members and visitors; and
Ease of maintenance and repair
WHEREAS, the Advisory Parks Board has evaluated the proposed donation and
has found that the proposed donation would enhance visitors experience at the Zoo; that
the proposed donation is in harmony with the current exhibits and master plan for the
Menominee Park Zoo; that the proposed donation is in furtherance of a planned exhibit and
relieves the burden upon the taxpayers to otherwise pay the entire cost of the planned
amenity; that the proposed donation is of good quality; that there exists a current plan for
funding the anticipated maintenance costs; and that the donation is otherwise consistent
with the City of Oshkosh Gifts and Donation Policy
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 River
Otter Exhibit project at the Menominee Park Zoo and that the proper City officials are
authorized and directed to take all appropriate actions to accept and utilize these donations
and acknowledge these philanthropic activities.
BE IT FURTHER RESOLVED that an Agreement with the Oshkosh Area
Community Foundation and Neuman Pools, Inc., for design and construction of a River
Otter Exhibit at the Menominee Park Zoo is hereby approved and the proper City officials
are authorized to execute and deliver the Agreement in substantially the same form as
attached hereto, and with any changes in the final copy being deemed approved upon their
AUGUST 28, 2012 12-413 RESOLUTION
CONT'D
respective signatures, and said City officials are authorized and directed to take those
steps necessary to implement the terms and conditions of the Agreement.
BE IT FURTHER RESOLVED that the appropriate City staff is hereby authorized
and directed to transfer eighty-six thousand seven hundred seventy-eight dollars($86,778)
from Account Number 255-0610-7206-0000 Parks Revenue Facilities Fund — Capital
Construction to the Oshkosh Area Community Foundation for the purpose of paying for
materials for the River Otter Exhibit pursuant to the Agreement approved by the Common
Council.
BE IT FURTHER RESOLVED that upon completion of the River Otter Exhibit in
substantial conformity with the plans and specifications approved by the City, as
determined by the City Manager at his discretion, the appropriate City officials are hereby
authorized to acknowledge and accept the completed project on behalf of the City without
further action by the Common Council.
City of Oshkosh
1 _ , Parks Department Ray Maurer
805 Witzel Ave.,PO Box 1130
Oshkosh,WI 54903-1130 Director
OJHKOIH (920)236-5080 (920)232-5316 FAX
ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Ray Maurer, Parks Director
DATE: August 23, 2012
RE: Accept Donations and Approve Agreement with Oshkosh Area Community Foundation
and Neuman Pools, Inc. for River Otter Exhibit at Menominee Park Zoo
BACKGROUND
Since 2007,Parks Department staff has been working with the Zoological Society/Friends of the Zoo and
the Oshkosh Area Community Foundation on plans and fund raising for a river otter exhibit at Menominee
Park Zoo. An otter exhibit is included in the existing Menominee Park Zoo Master Plan.
In November 2007,the Jim Ryan Menominee Zoo Fund was established at the Oshkosh Area Community
Foundation in the amount of$140,000, of which,an amount not to exceed 50%of the fund was to establish
an otter exhibit at the zoo.
Fund raising and planning continued and in 2010, the City of Oshkosh included $75,000 (an estimated
$35,000 from the Harenburg Zoo Fund,$5,800 from the Jim Ryan Zoo Fund and$34,200 from fund balance
in the account)in the Parks Revenue Facilities budget to contribute toward the otter exhibit. In October
2010,the Zoological Society discussed the project with the Advisory Parks Board and the Board supported
the Society moving forward with continued fund raising for the project.
Since then,the Society and the Oshkosh Area Foundation have secured the necessary funding for the project
which includes the 2010 budgeted funds from the Parks Revenue Facilities and other donations received for
the otter exhibit. In addition,city staff has been working with the Oshkosh Area Community Foundation on
an agreement for the construction of the otter exhibit. Similar to the process that was followed when the
Pollock Community Water Park was constructed,the Foundation has established a fund for this project and
will contract with Neuman Pools, Inc. to design and construct the exhibit and donate it to the city upon.
completion.
At the August 13, 2012 Advisory Parks Board meeting, the Board unanimously recommended acceptance
of the donations.
ANALYSIS
The Oshkosh Area Community Foundation, working with Parks Department staff and the Zoological
Society, has been coordinating this project since at least 2007. Similar to when the Pollock Community
Water Park was constructed,the Foundation and city staff have drafted an agreement with a firm,Neuman
Pools, Inc.,that the Foundation believes is a good value and will construct a great exhibit. The agreement
allows the Foundation to take advantage of an exemption to state bidding requirements by having the
materials or labor donated for the project and it also satisfies the city's statutory requirements for a Public
Construction project.
As this resolution approves the agreement between the parties and officially accepts the donations,city staff
has reviewed the Criteria For Evaluating Gift and Donations from the Gifts and Donations Policy. We
believe this donation meets the following criteria:
• Consistency with the mission, policies and master plans governing the City of Oshkosh
and/or the particular department or division
• Whether the proposed gift/donation has an educational component
• Whether the proposed donation/gift helps to promote conservation, preservation and
protection of the natural environment
• Whether the proposed gift/donation provides a new or different experience for the public
• Whether the proposed gift/donation is suitable for the purpose proposed
• Whether the proposed gift/donation is compatible with the proposed location, if one has
been identified, and other users of the public space
• Whether the proposed gift/donation compliments or is harmonious in quality, scale and
character with existing improvements and features in the area
• Whether the proposed public gift/donation is a traditional park or municipal amenity
• Suitability of the gift/donation to the environmental conditions of public display
• Susceptibility of the gift/donation to wear and vandalism
• Suitability of the gift/donation to the technical requirements or design standards for
installation of improvements in public places
• Whether the proposed gift/donation complies with all applicable codes including building
codes and ADA requirements
FISCAL IMPACT
The fiscal impact of accepting this donation would be the future maintenance and animal care associated
with the exhibit. These costs would be absorbed by the Parks Revenue Facilities operating budget. The
initial city contribution of$86,778 to the fund established at the Foundation will come from the remaining
2010 budgeted funds specified earlier in this memo and donations received since 2008 designated for the
exhibit.
RECOMMENDATION
Staff recommends the Common Council accept the donations and approve the agreement.
Respectfully Submitted, Approved:
�� -�— 4!. ?S
Ray Maurer
Parks Director City Manager
AGREEMENT TO CONSTRUCT RIVER OTTER EXHIBIT
This Agreement is between the City of Oshkosh ("City"), the Oshkosh Area Community
Foundation ("Foundation"), and Neuman Pools, Inc. ("Neuman Pools"). The purpose of this
Agreement is to effectuate the Foundation's gift of a river otter exhibit to be constructed at the
City's Menominee Park Zoo, the City's acceptance of such gift subject to the conditions
described in this Agreement, and the hiring of Neuman Pools to design and build the river otter
exhibit.
RECITALS
A. The City has identified an area at the Menominee Park Zoo that is available and suitable
for construction of a river otter exhibit in the City of Oshkosh.
B. The Foundation, City, and Neuman Pools have discussed various options for the
construction of a river otter exhibit, and have concluded that an appropriate and
desirable exhibit will cost approximately$264,510.00.
C. The Foundation has received substantial donations for the purpose of constructing a
river otter exhibit at the Menominee Park Zoo.
D. The City has identified certain, limited, funds that are available to contribute to the
Foundation for this project.
E. The Foundation seeks to undertake the construction of the river otter exhibit on the
identified City property and to provide the resulting product as a gift to the City.
F. The Foundation and its underlying donors are desirous of contracting with Neuman
Pools for the design and construction of the river otter exhibit, and Neuman Pools is
wishes to provide the requested design and construction services for this project.
G. The construction of the river otter exhibit is considered a public works project by
Wisconsin Statutes. However, §62.15 of the Wisconsin Statutes allows municipalities to
accept donations of materials and/or labor for public construction as an exception to the
requirements of the public bidding statute.
H. All parties seek to fully comply with the state public bidding requirements. In order to
comply, all of the City's limited resources will be transferred to the Foundation for the
sole purpose of contributing toward the cost of material for this project. The remaining
labor costs and all of the material and other costs will constitute 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 FOLLOWS]
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Draft Date: July 23, 2012
AGREEMENT
Article 1 —Contract
1.1 The parties'Agreement is, and shall continue to, be in writing, and includes:
1.1.1 this document, and all attachments including, without limitation, Neuman Pools' proposal
which is attached as Exhibit A, excepting the section titled "Terms and Conditions;"and
1.1.2 any written addenda to the Proposal as agreed upon by all parties; and
1.1.3 any construction documents approved by City and Foundation.
1.2 The parties' Agreement may be modified through written amendment of this Agreement.
Amendments include change orders or other methods provided they are in writing and
agreed to by all parties. A series of documents, such as emails, may constitute
approved changes without signatures to the extent these writings clearly reflect an
Agreement of the parties.
1.3 Any conflict in terms between this document and the Neuman Pools proposal attached
as Exhibit A shall be resolved in favor of the terms of this document.
Article 2—Contract Amount and Protect Funding
2.1 The Foundation agrees to pay Neuman Pools an amount not to exceed Two Hundred
Sixty Four Thousand Five Hundred Ten and NO/100 Dollars ($264,510.00)for the
design and construction of the river otter exhibit at the City's Menominee Park Zoo as
generally described in their proposal attached hereto as Exhibit A. Neuman Pools
agrees to design and construct this river otter exhibit for this amount. The City, as the
recipient of the Foundation's river otter exhibit gift, constructed on City property, is an
interested party in the Agreement between the Foundation and Neuman Pools.
2.2 All parties agree that bills, invoices, and requests for payment will be submitted by
Neuman Pools 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 Neuman Pools for the costs associated with this project.
2.3 Neuman Pools 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 for the purpose of defraying material
costs. The City shall provide the Foundation with a lump sum contribution of Eighty Six
Thousand Seven Hundred Seventy Eight and NO/100 Dollars ($86,778.00) to be used
solely for material costs associated with the project. The City's contribution shall occur
at the commencement of this project.
2.5 The Foundation and Neuman Pools agree to create and maintain records which will
identify, track, and verify that the City's contribution to this project is allocated solely to
material costs. These accounting and verification activities shall be at the expense of
the Foundation and Neuman Pools and shall not be an additional expense to the City.
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Draft Date: July 23, 2012
2.6 The Foundation and Neuman Pools agree to provide the City with all documentation
requested for the purpose of verifying that all of the City's contributions to this project
have been attributed to material costs on this project. The Foundation and Neuman
Pools 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.
Article 3—Foundation's Res onsibilities
3.1 Coordinate donations received for the purpose of constructing the river otter exhibit on
the site identified in the Menominee Park Zoo.
3.2 Receive and review bills, statements, and requests for payment from Neuman Pools.
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 request by the City.
3.5 Provide, or assist in providing, all documents necessary to finalize the river otter exhibit
gift to the City.
Article 4—Neuman Pools' Res onsibilities
4.1 Designate a representative with full and complete authority to act on Neuman Pool's
behalf for both the design and construction stages of this project.
4.2 Provide to the City and Foundation in writing the names of the persons or entities
Neuman Pools will engage as contractors for the project.
4.3 Visit the site, become familiar with local conditions, and correlate observable conditions
with the requirements of the City's site plans, schedule, and the anticipated budget for
the project.
4.4 Review alternative approaches to design and construction of the project with the
Foundation and the City and coordinate the design of the river otter exhibit.
4.5 Review the laws applicable to design and construction of the project and advise the City
of any known conflicts between legal requirements and the proposed project plans.
4.6 Prepare and submit all design documents, design and construction budgets, and other
documents necessary for the completion of the river otter exhibit.
4.7 Make revisions to the preliminary design documents, design and construction budgets,
or other documents as directed by the Foundation and the City.
4.8 Submit to the City and the Foundation completed design documents consistent with
Neuman Pools' proposal attached as Exhibit A, a statement of the proposed contract
sum, and a proposed schedule for completion of the project, for review and approval.
Design documents shall consist of preliminary and final design drawings, outline
specifications, or other documents sufficient to establish the size, quantity and character
of the river otter exhibit, its architectural, structural, mechanical and electrical systems,
and the materials and such other elements of the project as may be appropriate.
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Draft Date: July 23, 2012
4.9 Submit construction documents to the City and the Foundation for review and approval.
Construction documents shall include drawings, specifications, and other documents
and electronic data setting forth in detail the requirements for construction of the work
and shall be consistent with the intent of the project, provide information for the use of
those in the building trades; and include documents customarily required for regulatory
agency approvals.
4.10 File applications, requests, and other documents required to obtain necessary approvals
of governmental authorities having jurisdiction over the project.
4.11 Obtain all permits and approvals required from the City. City fees will be waived.
4.12 Promptly notify the City when all permits have been obtained to enable the project to
proceed.
4.13 Provide and pay for all design services, labor, materials, equipment, tools, construction
equipment and machinery, transportation and other facilities and services necessary for
proper execution and completion of the work, whether temporary or permanent and
whether or not incorporated or to be incorporated in the work.
4.14 Keep the City and the Foundation informed of the progress and quality of the work.
4.15 Correct work that does not conform to the contract documents.
4.16 Pay all sales, consumer, use, and similar taxes and shall secure and pay for all building
and other permits and governmental fees, except permits issued by the City, licenses
and inspections necessary for the proper execution and completion of the work.
4.17 Comply with and give notices required by laws, ordinances, rules, regulations, and lawful
orders of public authorities relating to the project.
4.18 Pay all royalties and license fees for patented designs, processes or products and shall
defend all suits or claims for infringement of intellectual property rights and shall hold the
City and Foundation harmless from loss on account thereof.
4.19 Coordinate with the City the space used for construction and temporary construction •
storage to minimize construction impact on surrounding area and to allow Menominee
Park and the Menominee Park Zoo to continue operating during the project.
4.20 Keep the premises and surrounding area free from the accumulation of waste materials
or rubbish caused by work related to this project. At the completion of the work, all
waste materials, rubbish, tools, construction equipment, machinery, and surplus
materials shall be removed from the site.
4.21 Notify the City and Foundation when Neuman Pools believes that the work or an agreed
upon portion thereof is substantially completed. If the City and Foundation concur,
Neuman Pools shall issue a certificate of substantial completion which shall establish
the date. The Certificate shall include a list of items to be completed or corrected and
shall fix the time within which Neuman Pools shall complete items listed therein.
4.22 Maintain one record copy of the as-built drawings, specifications, product data, samples,
product warranties, shop drawings, change orders, and other modifications at Neuman
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Draft Date: July 23, 2012
Pools' local offices and in good order and regularly updated to record the completed
construction. One copy of all of these shall be delivered to the City of Oshkosh Parks
Department upon completion of construction and prior to the authorization for final
payment. In addition, Neuman Pools shall provide individual lien waivers from all
subcontractors upon completion of the project and of the final project and prior to final
payment.
4.23 Coordinate with the City, its employees, contractors, and agents in coordination of
construction performed by the City or its contractors or agents.
Article 5— City's Responsibilities
5.1 Designate the Director of Parks to coordinate the project, provide guidance, and make
decisions on the City's behalf.
5.2 Make sufficient space available for Neuman Pools' and their subcontractors to construct
the river otter exhibit, including construction storage and staging areas. The general
location of the river otter exhibit is attached as Exhibit B.
5.2 Provide Neuman Pools with full information in a timely manner regarding the
requirements for the project, including the City's objectives, schedule, and constraints
relating to the project.
5.3 Render decisions in a timely manner pertaining to documents submitted by Neuman
Pools to avoid unreasonable delay in the orderly and sequential progress of the project.
5.4 Furnish surveys or other documentation describing physical characteristics, legal
limitations and utility locations for the site of the project. The surveys shall include, as
applicable, grades and lines of streets, pavements, and adjoining property and
structures, adjacent drainage, rights-of-way restrictions, easements, encroachments,
zoning, deed restrictions, boundaries and contours of the site, locations, dimensions and
necessary data pertaining to existing structures, other improvements and trees, and
information concerning available utility services and lines, both public and private, above
and below grade.
5.5 Make available to Neuman Pools all results and reports of prior tests, inspections, or
investigations conducted relative to the project site involving environmental conditions
and remediation at the project site which are in the City's possession.
5.6 Assist Neuman Pools in securing building and other permits, licenses and other
necessary approvals of governmental authorities, and inspections. Any costs or fees,
other than those payable to the City of Oshkosh, shall be the responsibility of Neuman
Pools and are expected to be included in their Proposal.
5.7 Prompt notify Neuman Pools in writing of any fault or defect in the work or nonconformity
with the proposal of construction documents which the City observes or otherwise
becomes aware of.
5.8 Communicate with persons or entities employed or retained by Neuman Pools in
connection with this project through Neuman Pools.
5.9 Provide Neuman Pools with a Notice to Proceed when the project is ready to begin.
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Draft Date: July 23, 2012
Article 6— Project Timing
6.1 Neuman Pools shall prepare a schedule for the performance of the services under this
Agreement which shall take into consideration the needs of the City and Foundation and
coordination with the normal functioning of the Menominee Park Zoo and with other
public projects proposed for the surrounding area. This schedule shall include
allowances for periods of time required for the City's and Foundation's review and for
approval of submissions by authorities having jurisdiction over the project.
6.2 Time limits stated in the contract documents are of the essence. The work to be
performed shall commence upon receipt of a notice to proceed unless otherwise agreed.
6.3 Unless otherwise indicated, the parties shall perform their respective obligations as
expeditiously as is consistent with reasonable skill and care and the orderly progress of
the project.
6.4 Substantial completion is the stage in the progress of the work when the work or
designated portion thereof is sufficiently complete in accordance with the contract
documents that the City may occupy and utilize the work for its intended use.
6.5 Based upon the proposal submitted by Neuman Pools, a construction schedule shall be
submitted and, subject to authorized modifications, substantial completion of the entire
project shall be achieved on or before May 1, 2013.
6.6 If Neuman Pools 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 Neuman Pools, or by delay authorized
by the City or Foundation, or by other causes which the City, Foundation, and Neuman
Pools agree may justify delay, then the contract time shall be reasonably extended
through written agreement.
Article 7—Protection of Persons and Property
7.1 Neuman Pools 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 Neuman Pools 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 Neuman Pools or Neuman Pools' contractors; and (3) other
property at or adjacent thereto, such as trees, shrubs, lawns, walks, pavements,
roadways, structures, and utilities not designated for removal, relocation, or replacement
in the course of construction.
7.3 Neuman Pools 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.
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Draft Date: July 23, 2012
. ............ .
7.4 Neuman Pools 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 Neuman Pools, its contractors, or
anyone directly or indirectly employed by them, or by anyone for whose acts they may
be liable.
Article 8—Correction of Work
8.1 Neuman Pools shall promptly correct work rejected by the City or Foundation or known
by Neuman Pools 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. Neuman Pools shall bear the costs of correcting such
rejected work, including any additional testing or inspections required thereby.
8.2 if within one (1) year after the date of substantial completion of the work, or after the
date for commencement of any warranties established or agreed upon, any of the work
is found to be not in accordance with the requirements of the contract documents,
Neuman Pools 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 Neuman Pools may have under this Agreement. The one year
time period established in Section 13.2 relates only to the specific obligation of Neuman
Pools 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 Neuman Pools liability with
respect to its' obligations other than the obligation to specifically correct the work.
8.4 If Neuman Pools 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 Neuman Pools or other persons
of entities.
8.5 If Neuman Pools 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 Neuman Pools and seven (7)
days following receipt by Neuman Pools 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 Neuman Pools, 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 Neuman Pools and
Neuman Pools shall pay the difference to the City within thirty(30)days of such invoice.
Article 9—Termination of Agreement
9.1 This Agreement may be terminated by any party upon seven (7) days written notice to
the other parties hereto should any party fail to substantially perform in accordance with
the terms of this Agreement through no fault of the party initiating the termination.
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Draft Date: July 23, 2012
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 Neuman Pools, Neuman Pools shall be
compensated for services performed to the termination date, together with reimbursable
expenses then due.
9.4 Once construction of this project has commenced, this Agreement may be terminated by
the City or Foundation upon fourteen (14) days written notice to the other parties in the
event that the project is abandoned. If such termination occurs, Neuman Pools shall be
compensated for work completed to the termination date, together with reimbursable
expenses then due.
9.5 If Neuman Pools 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 Neuman Pools 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 Neuman Pools and take possession of the site and of all
materials, and finish the work by whatever method deemed most expedient. If the
unpaid balance of the contract sum exceeds the expense of finishing the work and all
damages incurred by the Foundation and City, such excess shall be paid to Neuman
Pools. If the expense of completing the work and all damages incurred by the
Foundation and City exceed the unpaid balance, the City shall invoice Neuman Pools for
the difference and Neuman Pools shall pay the difference within 30 days of receipt of
invoice. This obligation for payment shall survive termination of this Agreement.
9.6 If the Foundation fails to make payment when due, Neuman Pools may give written
notice of Neuman Pools 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, Neuman Pools may
give a second written notice and, seven (7) days after receipt after such second written
notice by the Foundation, Neuman Pools may terminate this Agreement. If such
termination occurs, Neuman Pools shall be compensated for work completed to the
termination date, together with reimbursement expenses then due.
Article 10—Ownership and Use of Documents, Designs, and Electronic Data
10.1 Copies and other tangible embodiments of all design and construction materials,
regardless of whether such materials are subject to intellectual property protection, shall
be and remain the property of the City whether or not the project is commenced or
completed, provided, however, that Neuman Pools has been paid for such materials.
10.2 The intellectual property rights, if any, to the contents and concepts embodied in the
design and construction materials, shall belong to Neuman Pools or its design or
construction subcontractors in accordance with their contractual relationship and may be
copyrighted by them in the United States or any other country, or be subject to any other
intellectual property protection.
10.3 As to those design and construction materials subject copyright, patent, trademark, or
any other form of intellectual property protection, Neuman Pools grants to the City and
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Draft Date: July 23, 2012
the Foundation as of the date that the design and construction materials are delivered to
the City and Foundation, a world-wide, paid up, nonexclusive, nontransferable (except
as provided) license for the 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 construction materials without
further compensation to Neuman Pools 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 Neuman
Pools and/or any third party holding such rights. Those holding such rights may use any
detail, part, concept, or system on any other project and to retain copies of the design
and construction materials for their future use except as provided in section 7.3.
10.3.2 The City and Foundation shall not use the design and construction materials for the
construction of any other project without the prior written approval of the entity holding
such intellectual property rights.
10.3.3 Any reproduction of the protected design and construction materials, or part of them,
shall be faithful and accurate to the original and of good quality.
10.3.4 The City and Foundation shall not remove or alter, and shall reproduce and prominently
display on all copies made by the City and Foundation the copyright notice and any
other proprietary legends.
10.4 It is understood that the City and Foundation consider the river otter exhibit's aggregate
design expression and any distinctive individual features to be unique and of commercial
value. Therefore, Neuman Pools and its design subcontractors agree not to design or
build, or allow other third parties the use of the materials to design or build another
exhibit having a substantially similar aggregate design expression so that the average
person would relate the other exhibit to the City's exhibit. However, individual features
or combinations of features may be used in other projects as long as an average person
would not relate the new structure to this river other exhibit.
10.5 Neuman Pools shall turn over to the City and Foundation all design and construction
materials including, but not limited to, as-built drawings to the City within thirty (30) days
from the completion of the project. Failure to do so will be considered a breach and
subject to damages by the City and/or the Foundation.
Article 11 — Insurance and Bonds
Neuman Pools and its subcontractors must hold insurance required by the City during
the course of this project. Neuman Pools shall not commence work under this Agreement until
it has obtained all required insurance required and such insurance has been approved by the
City. Neuman Pools must provide proof of insurance for any subcontractors upon request of the
City and/or Foundation. A copy of the insurance required is attached hereto as Exhibit C.
Article 12—Indemnification
12.1 To the fullest extent permitted by law, Neuman Pools 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
9
Draft Date: July 23, 2012
limited to attorneys' fees, arising out of or resulting from performance of Neuman Pools'
involvement in the river otter exhibit. This indemnification and hold harmless includes,
without limitation, such claim, damage, loss or expense that is attributable to bodily
injury, sickness, disease or death, or injury to or destruction of tangible property (other
than the work itself), but only to the extent caused in whole or in part by negligent act of
omissions of Neuman Pools, anyone directly or indirectly employed by Neuman Pools or
anyone for whose acts Neuman Pools 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
Neuman Pools, anyone directly or indirectly employed by Neuman Pools or anyone for
whose acts Neuman Pools 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 Neuman Pools under workers' compensation acts, disability
benefit acts or other employee benefit acts.
Article 13—Open Records
13.1 The City is subject to the State's open records laws regarding making certain records
available to those requesting the same. Current open records laws includes not only
governmental entities such as the City, but also 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 Neuman Pools agree to make documents available to the City for
review and potentially release to those requesting public records. The Foundation,
Neuman Pools, 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 Neuman Pools are public records, the City shall notify the Foundation and
Neuman Pools of this conclusion and will allow five (5) business days for the Foundation
and/or Neuman Pools the opportunity to initiate any proceeding deemed necessary to
protect their interests.
13.4 The failure of the Foundation and/or Neuman Pools to cooperate with public open
records requests will be considered a material breach of this Agreement.
13.5 Neuman Pools open records responsibilities are limited to this project only. (or similar
language)
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.
10
Draft Date: July 23, 2012
. . . .. ..-._........_..
14.3 This Agreement represents the entire Agreement between the parties and supersedes
any and all prior negotiations, representations, or agreements, either written or oral.
This Agreement may only be amended by written instrument signed by all parties,
except in those circumstances described in this document where a signature is not
required.
14.4 Neuman Pools 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 Neuman Pool's
obligations pursuant to this Agreement.
14.5 Neuman Pools shall be responsible for all -construction means, methods, techniques,
sequences, and procedures, and for coordinating all portions of the work subject to this
Agreement.
14.6 Neuman Pools warrants that all materials and equipment furnished under the contract by
it or by its subcontractors will be of good quality and new unless otherwise approved by
the City and Foundation; that the construction will be free from faults and defects; and
that the construction will conform to the requirements of the contract documents.
Construction not conforming to these requirements shall be corrected by Neuman Pools
at Neuman Pools' expense.
14.7 If Neuman Pools 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 Neuman Pools, or by delay authorized by the City, or by other causes that
the City and Neuman Pools agree may justify delay then the contract time shall be
reasonably extended by change order to this Agreement.
14.8 The City may obtain independent review of the documents by a separate architect,
engineer, contractor, or cost estimator. Such independent review shall be undertaken at
the City's expense and in a timely manner and shall not delay the orderly progress of the
Design/Builder's services.
Article 15— Notices
Notices required to be given under this Agreement shall be given as follows:
To the City of Oshkosh:
Ray Maurer
Director of Parks
805 Witzel Avenue
PO Box 1130
Oshkosh, WI 54903-1130
11
Draft Date: July 23, 2012
To the Oshkosh Community Foundation:
Eileen Connolly-Keesler
Oshkosh Area Community Foundation
230 Ohio Street
Oshkosh, WI 54902
To Neuman Pools, Inc.
Randal S. Neuman
W9684 Beaverland Parkway
P.O. Box 413
Beaver Dam, WI 53916
[SIGNATURE PAGE FOLLOWS]
12
Draft Date: July 23, 2012
This Agreement entered in this day of , 2012.
CITY OF OSHKOSH
Mark A. Rohloff
City Manager
Pamela R. Ubrig
City Clerk
APPROVED:
Lynn A. Lorenson
City Attorney
NEUMAN POOLS, INC.
By:
Randal S. Neuman, President
OSHKOSH COMMUNITY FOUNDATION
By:
Eileen Connolly-Keesler, President and CEO
13
Draft Date: July 23, 2012
neuman pools inc.
WE CARE ENOUGH BUILDERS OF RESIDENTIAL,COMMERCIAL,MUNICIPAL SWIMMING POOLS
TO BUILD IT BETTER. AND RECREATIONAL WATER AMUSEMENTS
Proposal For Professional Design Build Services
July 23, 2012
Client/Owner
City Of Oshkosh
C/O Oshkosh Area Community Foundation
230 Ohio Street, Suite 100
Oshkosh, WI 54902
Mobile #920.426.3993
Neuman Pools Contacts
Peter Simon—Project Development
psimon @neumanpools.com
Tel: 920.885.3366
Project: New Otter Exhibit—Menominee Park Zoo, Oshkosh, WI.
Neuman Pools is pleased to present the following proposal for professional design build
services. Neuman Pools utilizes the services of Water Technology, Inc. for the design portion of
these services. The following proposal provides concept, budget and development information
for a proposed otter exhibit. This proposal is in response to our discussions, preliminary
concept drawings and a site visit.
PROJECT TEAM:
As leaders in aquatic construction and construction management, Neuman Pools has assembled
a project team consisting of specialty aquatic and architectural designers, engineers and
contractors. Together we will provide design build services for the completion of a New Otter
Exhibit, delivered on time and within original agreed upon budget.
NEUMAN POOLS PROJECT APPROACH:
This proposal will outline steps necessary for design and construction services for the
development of the new otter exhibit. Neuman Pools' scope is defined as the design and
construction of the support building, M.E.P, aquatics and site development. To refine the scope
of the work, The Neuman Pools Team will work collaboratively with the owner, other
consultants and construction team, sharing input, project experience, budgeting, and pricing
expertise. The result will advance the current Aquatic Conceptual Design dated April 4, 2012
through Design Development and ultimately to working Construction Documents.
W9684 BEAVERLAND PARKWAY,POST OFFICE BOX 413,BEAVER DAM,WISCONSIN 53916
TELEPHONE:920-885-3366/800-4724214/FAX 920-885-3371
www.neumanpools.com/Email:info @neumanpools.com
DESCRIPTION OF SERVICES:
Neuman Pools will prepare drawings and specifications to describe and fix the nature and scope
of the work. These drawings will be suitable for State/Local approvals, building permits and
construction. Once the drawings are complete we will provide construction services to
complete the project.The project and drawings will include the following:
OTTER HUSBANDRY BUILDING
General Construction
1. Final dimensioned floor plans, building sections, elevations and wall sections including
pool equipment room(s)/areas, chemical storage areas, and other support areas.
2. Excavation and backfill as needed for work.
3. 48" deep footings and frost wall.
4. Poured concrete floors, entire to pitch to drains.
5. Block constructed perimeter walls, potentially split face on exterior.
6. Block interior full height partition walls and block 4 foot tall otter pen walls.
7. All interior block surfaces shall have epoxy paint finish.
8. Cores of block shall have bead foam insulation.
9. Roof is wood framed/trusses at 4/12 pitch in gable or shed configuration. Plywood or
OSB sheathing and fiberglass/asphalt shingles.
10. Aluminum facia and ventilated soffit on 12" to 18" overhangs.
11. Ceiling shall be FRP (milk house panel) or MR drywall with epoxy paint finish.
12. Ceiling insulation shall be 6" of fiberglass batts with 6 mil vapor barrier.
13. Exterior doors are insulated steel with paint finish and deadbolt locks.
Interior Specialties
1. Pen raceway, gates and upper half of pen walls shall be fine mesh chain link.
2. Exterior openings to pens shall have sliding guillotine doors.
3. Laminated kitchen base cabinets with stainless steel countertop.
4. Laminated upper wall cabinets.
5. Stainless steel sink in countertop.
6. Residential grade chest freezer and upright refrigerator/freezer.
7. Fire extinguisher cabinet.
Electrical
1. Electrical design to be provided from point within 5'-0" of all buildings and structures.
2. Electrical design work including power panels, breakers, disconnects,
3. Disconnects and motor starters and wiring of otter life support equipment.
4. Approx. four interior general outlets, gfci.
5. Refrigerator and freezer outlets.
6. Wiring of electric building heater and electric domestic hot water heater
2
W9684 BEAVERLAND PARKWAY,POST OFFICE BOX 413,BEAVER DAM,WISCONSIN 53916
TELEPHONE:920-885-3366/800-472-1214/FAX 920-885-3371
www.neumanpools.com/Email:info @neumanpools.com
7. Moisture resistant florescent light fixtures on ceiling.
8. Two countertop wall outlets, gfci.
9. Three exterior wall outlets, gfci.
10. Two small exterior wall light fixtures at doors.
11. One exterior security light.
12. Bonding and grounding for otter pool reinforcing steel and metallic components and
equipment as required by Local and National Electrical and Building Codes.
Plumbing and Heating
1. Connections to site sanitary sewer piping.
2. Approximately eight floor drains with strainers to catch large bedding solids.
3. Sink drain.
4. Filter backwash stand pipe receiver(100 gpm).
5. Electric heater for temper heating of building.
6. 20 gallon electric instantaneous hot water heater.
7. Hot and cold water lines to sink facet.
8. Two interior and two exterior hose bibs.
9. Water line to otter pool automatic fill.
OTTER YARD AND PERIMETER ENCLOSURE
Yard Enclosure
1. Prepare plans showing footing and foundation wall details, wall heights and finishes,
window and door openings and details.
2. Excavation and backfill as needed for work.
3. 48" deep footings and frost wall under all yard walls.
4. Concrete walls to a height of 7 feet above yard interior grade.
5. Safety glass panels in hand framed cedar openings. Vertical cedar 6x6's are bolted to
concrete wall. Glass panels fit between 6x6's.
6. Provide and install 6 foot wide lockable double steel gate, painted.
7. Stone look on exterior of yard walls with form liner.
Viewing Shelter and Walks
1. Rough sawn cedar corner posts.
2. Exposed wood rafters with exposed plank sheathing and asphalt shingles.
3. Rafter mounted security light.
4. Viewing window safety glass in hand framed openings.
5. Under water window.
6. Note that the underwater viewing shelter is lowered approx 3 feet.
7. Poured concrete walkways on two sides of the exhibit and a walk to building doorway.
8. Provide kiosk/signage for the exhibit.
3
W9684 BEAVERLAND PARKWAY,POST OFFICE BOX 413,BEAVER DAM,WISCONSIN 53916
TELEPHONE:920-885-3366/800-472-1214/FAX 920-885-3371
www.neumanpools.com/Email:info @neumanpools.com
Landscape
1. Prepare landscaping plan.
2. Fine grading of yard interior and 5 to 10 feet away from building and yard walls.
3. Placement of limestone slabs (provided by city) for otter pool coping and retaining walls
with in yard.
4. Two transplanted conifers approximately 8 to 10 foot tall.
5. Stock pile and re-spread existing top soils.
6. Planting grass in disturbed areas surrounding the exhibit and building.
7. Install pockets of sand, gravel and mulch as digging and latrine sites within yard.
OTTER POOLS AND LIFE SUPPORT
Otter Pools
8. Prepare drawings for the steel reinforced shotcrete pool structure, underwater viewing
window, waterfall and upper pool basin.
9. Main basin shall be approximately 300 to 325 sq. ft. Upper basin shall be approximately
50 to 75 sq. ft.
10. Pool basin interiors shall have step like structures, ramps, swim-out ledges etc... to
provide an interesting habitat for the otters.
11. Limestone coping with city provided stone.
12. Pool interior shall be a smooth, medium gray cementicious finish.
13. Installation of an 8'wide by 3'-6" tall underwater viewing window.
Life Support System
14. Design of circulation and filtration system including PVC piping, skimmers, bottom
drain/outlets, filter connections and filter by pass piping, and filtered water return
fittings. Circulation system is based on a one hour turnover rate and water velocities as
recommended by AZA.
15. Install water treatment system including sand filtration, full stream UV treatment and
low level chlorination.
16. Dual circulation pumps for redundancy.
17. Automatic fill system.
18. Provide operation manuals and operator training.
Design and Construction Budget $260,000.00
Builders Risk Insurance $650.00
Performance Bond $3,860.00
Total Project Budget $264,510.00
DELIVERABLES:
1. Neuman Pools will provide Client with a progress set of drawings at the end of
Schematic Design and at 95%completion of construction drawings and final drawings.
2. Neuman Pools will provide Client with two (2) complete sets of documents as described
above, for Client's reference purposes.
4
W9684 BEAVERLAND PARKWAY,POST OFFICE BOX 413,BEAVER DAM,WISCONSIN 53916
TELEPHONE:920-885-3366/800-472-1214/FAX 920-885-3371
www.neumanpools.com/Email:info @neumanpools.com
CLIENT RESPONSIBILITIES:
1. Provide site for the exhibit.
2. Provide municipal utilities including water, sewer and electricity to building.
3. Building permits, plan review and inspection services at no cost to Design Builder.
4. Written review and acceptance of contract documents and drawings of each stage and
final construction drawings.
Start-Up and Warranty
1. Neuman Pools' warranty includes a one-year manufacturer's warranty on all parts and
labor, and a one-year warranty on the otter house and concrete pool shells.
2. Neuman Pools will be responsible for providing chemically balanced water, using owner-
supplied chemicals and fill water.
3. Provide assistance in hydraulic balancing and start-up of all systems.
4. Neuman Pools will furnish the owner with instructions, both written and verbal, as to the
operations of the systems and equipment.
5. System training will include instruction for system operation and proper system
maintenance. All training will correspond with the operations manual.
6. Neuman Pools provides ongoing consultation to the owner on all aquatic related
systems.
TERMS AND CONDITIONS
Project Billing:
Neuman Pools will invoice for professional fees and construction services monthly on work
completed to date basis.
A down payment of 13,000.00 shall be due upon signing the contract.
Additional Project Related Costs:
The following costs are not included in our proposal and should be anticipated in the owner's
budgeting.
1. Geotechnical services and reports
2. Topographic and boundary surveys
3. Testing
4. Project related insurance and legal services
5. Permits and fees
6. Marketing and operations development
5
W9684 BEAVERLAND PARKWAY,POST OFFICE BOX 413,BEAVER DAM,WISCONSIN 53916
TELEPHONE:920-885-3366/800-4721214/FAX 920-885-3371
www.neumanpools.com/Email:info@neumanpools.com
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