HomeMy WebLinkAbout40. 15-94
FEBRUARY 24, 2015 15-94 RESOLUTION
(CARRIED___7-0____ LOST _______ LAID OVER _______ WITHDRAWN _______)
PURPOSE: ACCEPT DONATIONS AND APPROVE AGREEMENT WITH
OSHKOSH AREA COMMUNITY FOUNDATION AND GERBER
LEISURE PRODUCTS, INC., FOR INCLUSIVE PLAYGROUND AT
SOUTH PARK
INITIATED BY: PARKS DEPARTMENT
ADVISORY PARKS BOARD RECOMMENDATION: Recommend Approval
WHEREAS, an inclusive playground is included in the existing South Park Master
Plan; and
WHEREAS, the Oshkosh Area Community Foundation has coordinated the effort to
raise money for the construction of an inclusive playground at South Park; and
WHEREAS, the Oshkosh Inclusive Park Project Committee and the Oshkosh Area
Community Foundation have secured funds for the inclusive playground project; and
WHEREAS, it is appropriate for the Common Council to acknowledge and accept
such donations and all future contributions to this project; and
WHEREAS, the necessary funding level has been reached to go forward with the
project from 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 inclusive playground 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
has an educational component
helps to promote conservation, preservation and protection of the
natural environment
FEBRUARY 24, 2015 15-94 RESOLUTION
CONT'D
➢ 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 and ADA
requirements
Whereas, the City of Oshkosh Gifts and Donation Policy allows the City to take on
future maintenance costs related to a gift 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 South Park;
that the proposed donation is in harmony with the master plan for South Park; that the
proposed donation is in furtherance of an inclusive playground 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 inclusive
playground 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 Gerber Leisure Products, Inc., for design and construction of
an inclusive playground at South Park 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
respective signatures, and said City officials are authorized and directed to take those
steps necessary to implement the terms and conditions of the Agreement.
FEBRUARY 24, 2015 15-94 RESOLUTION
CONT'D
BE IT FURTHER RESOLVED that the appropriate City staff is hereby authorized
and directed to transfer one hundred forty thousand dollars ($140,000) from Account
Number 325-0610-7204-07304 Parks Improvement Fund -- Equipment to the Oshkosh
Area Community Foundation for the purpose of paying for materials for the inclusive
playground pursuant to the Agreement approved by the Common Council.
BE IT FURTHER RESOLVED that upon completion of the Inclusive Playground
Project 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
� Parks Department Ra Maurer
805 Witzel Ave.,PO Box 1130 Y
Oshkosh,WI 54903-1130 Director
OIHKQIH (920)236-5080 (920)232-5316 FAX
ON THE WATER
TO: Honarable Mayor and Members of the Common Council
FROM: Ray Maurer, Parks Director
DATE: February 19, 2015
RE: Accept Donations and Approve Agreement with Oshkosh Area Community Foundation
and Gerber Leisure Products, Inc. far Inclusive Playground at South Park
BACKGROUND
Since 2011,Parks Department staff has been working with the Oshkosh Inclusive Park Project Committee
and the Oshkosh Area Community Foundation on plans and fund raising for an inclusive playground. This
project was initially proposed for Abe Rochlin Park. However,due to potential contaminated soil concerns
at the park, it was determined that South Park was the preferred location for this project. An inclusive
playground is included in the existing South Park Master Plan.
In November 2011,the Common Council approved funding$100,000 for this Capital Improvement Proj ect
with the stipulation that the project could not begin until the Oshkosh Inclusive Park Project Committee
raised at least $100,000 in matching funds.
Since then,the estimated project cost has increased due to equipment and materials cost increases,location
change to South Park and a slightly expanded project scope to include shade canopy's, etc. The current
estimated project cost is $275,000.
We are pleased to announce that the Oshkosh Inclusive Park Project Committee and the Oshkosh Area
Community Foundation have secured $140,000 for the project. City staff is recommending that the City
match the $140,000 that has been raised. The additional $40,000 in City funds would come from Parks
Department capital projects that have been completed under budget since 2011 - renovations to Lake Fly
Cafe restrooms,renovations to Abe Rochlin restrooms and the South Park Master Plan. As these funds from
previous years were borrowed for park improvement projects,best practice would be to utilize these funds
for capital projects in the parks.
City staff has also been working with the Oshkosh Area Community Foundation on an agreement for the
construction of the inclusive playground. Similar to the process that was followed when the Pollock
Community Water Park and the River Otter Exhibit was constructed,the Foundation has established a fund
for this project and will contract with Gerber Leisure Products,Inc.to design and construct the playground
and donate it to the city upon completion. The agreement between the Foundation and Gerber Leisure
Products, Inc. details the responsibilities of Gerber Leisure Products such as site excavation, supply and
install all components, drain tile installation, rubber surfacing installation and concrete work. This
agreement is included as part of this packet as well.
Per the agreement between the city,the Foundation and Gerber Leisure Products,Inc.,the city contribution
will be paid to the Foundation in a lump sum payment at the commencement of the proj ect for the purpose of
defraying material/component costs. The Foundation will be responsible for paying all invoices for the
project from the fund they have established for this project.
At the February 9,2015 Advisory Parks Board meeting,the Board unanimously recommended acceptance
of the donations as well as the additional $40,000 in city funding.
ANALYSIS
The Oshkosh Area Community Foundation,working with Parks Department staffand the Oshkosh Inclusive
Park Project Committee, has been coordinating this project since 2011. Similar to when the Pollock
Community Water Park and the River Otter Exhibit was constructed, the Foundation and city staff have
drafted an agreement with a firm,Gerber Leisure Products,Inc.,that the Foundation believes is a good value
and will construct a great inclusive playground. 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 Gifts 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 to the city of accepting this donation is$140,000. Of which,$100,000 has been borrowed
for this project and$40,000 from Parks Department capital projects that have been completed under budget
since 2011 —renovations to Lake Fly Cafe restrooms,renovations to Abe Rochlin restrooms and the South
Park Master Plan. The proposal from Gerber Leisure Products,Inc.is for$275,000. The total fund balance
at the Community Foundation will be $280,000 to allow for a small contingency fund.
RECOMMENDATION
Staff recommends the Common Council accept the donations and approve the agreement.
Respectfully Submitted, Approved:
��� �� � G�
Ray Maurer Mark Rohloff
Parks Director City Manager
Attachment 15-94
AGREEMENT TO CONSTRUCT INC�USIVE PLAYGROUND AT SOUTH PARK
This Agreement is between the City of Oshkosh ("City"), the Oshkosh Area Community
Foundation ("Foundation°), and Gerber Leisure Prvducts, Inc. ("Gerber"). The purpose of this
Agreement is to effectuate the Foundation's gift of an inclusive playground to be constructed at
the City's South Park, the City's acceptance of such gift sub}ect to the conditions described in
this Agreement, and the hiring of Gerber to design and build the inclusive playground.
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RECITALS
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A. The City has identified an area at South Park that is available and suitable for
construction of an inclusive playground in the City of Oshkosh.
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! B. 7he Foundation, City, and Gerber have discussed various options for the construction of
an inclusive playground, and have concluded that an appropriate and desirable inclusive
' playground will cost approximately$275,000.00.
C. The Foundation has received substantial donations for the purpose of constructing an
inclusive playground at the South Park.
' D. The Cify has identified certain, limited, funds that are available to contribute to the
' Foundation for this project.
E. The Foundation seeks #o undertake the canstruction of the inclusive playground on the
identified City property and to provide the resulting produc# as a gift to the City.
, F. The Foundation and its underlying donors are desirous of contracting with Gerber for the
design and construction of the inclusive playground, and Gerber wishes to provide the
requested design and cons#ruction services for this project.
G. The construction of the inclusive playground 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 fo the
requiremenfs 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 labor costs
and the remaining material and other costs wifl 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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January 20, 2095
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, Gerber's proposal which
;
is attached as Exhibit A; and
� 1.12 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 Gerber proposal attached as
Exhibit A shall be resolved in favor of the terms of this document.
; Article 2--Contract Amount and Project Fundina
; ,
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2.1 The Foundation agrees to pay Gerber an amount not to exceed Two Hundred Seventy
Five Thousand and N0/100 Dollars ($275,000.00)for the design and construction of the
inclusive playground at the City's South Park as generally described in their proposal
attached hereto as Exhibit A. Gerber agress to design and construct this inc(usive
playground for this amount. The City, as the recipient of the �oundation's inclusive
playground gift, constructed on City property, is an interested party in the Agreement
between the Foundation and Gerber.
2.2 All parties agree that bills, invoices, and requests for payment will be submitted by
Gerber to the Fpundation. Subject to other terms wi#hin this Agreement regarding
review and approval of requests for payment, the Foundation shatl have the sole
obligation to Gerber for the costs associated with this project.
2.3 Gerber shall submit weekly invoices for progress payments to the Foundation with
copies to the City. The Foundation will review the invoices and pay those approved
within fourteen (14} days of receiving the invoice.
2.4 The City's only contribution. to this project shall be far the purpose of defraying material
costs. The City shall provide the Foundation with a lump sum contribution of One
Hundred Forty Thousand and N0/100 Dollars ($140,000.00} to be used solely for
material costs associated with tt�e project. The City's contribution shall occur at the
commencement of this project.
2.5 The Foundation and Gerber 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 Gerber and shall not be an additional expense to the City.
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January 20, 2015
2.6 The Foundation and Gerber agree to p�ovide 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 Gerber shall provide this
documentation upan request to the City, its employees, agents, or representatives, or its
accountants or auditors, or anyone otherwise legally enfitled to review such documents.
! Article 3— Foundation's Responsibiiities
3.1 Coordinate donations received for the purpose of constructing the inclusive playground
i on the site identified in the City's South Park.
3.2 Receive and review bills, statements, and requests for payment from Gerber.
� 3.3 Make payments to Gerber for all work completed and approved on the project.
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; 3.4 Provide accountings and other project-related information upon the request by the City.
3.5 Provide, or assist in providing, afl dacuments necessary to finalize the inclusive
playground gif#to the City.
Article 4—Gerber's Responsibilities
4.1 Designate a representative with full and complete authority to act on Gerber'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 Gerber
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 Revisw alternative approaches to design and construction of the project with the
Foundation and the City and coordinate the design of the inclusive playground,
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 inclusive playground.
4.7 Make revisions to the preiiminary design documents, design and construction budgets,
ar other documents as directed by the Foundation and the City.
4.8 Submit to the City and the Foundation completed design documents consistent with
Gerber's proposal attached as Exhibit A, a statement of the proposed contract sum, and
a proposed schedule for completion of the project, for review and apprvval. Design
documents shall consisf of prel{minary and final design drawings, outline specifications,
or other documents sufficient to establish the size, quantity and character of the
inclusive playground, and the materials and such other elements of the project as may
be appropriate.
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January 20, 2095
4.9 Submit construction documents to the City and the Foundation for review and approval.
Construction dacuments shall include drawings, specifications, and other documents
and electronic data setting forth in detail the requirements for construction of the work
and shall be cansistent with the intent of the project, provide information for the use of
those in the building trades; and include documents customari(y required for regulatory
agency approvals.
i 4.10 File applications, requests, and other documents required to obtain necessary approvals
of governmental authorities having jurisdiction over the project.
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! 4.11 Obtain alI permits and approvals required from the City. City fees will be waived.
4.12 Pramptly notify the City when all permits have been obtained to enable the project to
� proceed.
' 4.93 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 Kesp the City and the Founda#ion informed of the progress and quality af the work.
4.15 Correct work that does not conform to the contract documents.
I 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 wark.
; 4.17 Comply with and give notices required by laws, ordinances, rules, regulations, and lawful
j orders of public authorities relating to the project.
' 4.18 Pay all royalties and (icense fees for pafented designs, processes or praducts and shall
defend all suits or claims for infringement of inteliectual property rights and shall hold the
City and Foundation harmless from loss on account thereof.
4.19 Coordinate with the Cify the space used for construction and temporary construction
storage to minimize construction impact on surrounding area and to allow South Park 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 wark related to this project. A# the completion of the work, al!
waste materials, rubbish, tools, construction equipment, machinery, and surplus
rnaterials shall be removed from the site.
4.21 Notify the City and Foundation when Gerber befieves that the work or an agreed upon
� partion thereof is substantially campleted. If the City and Foundatian concur, Gerber
shall issue a certificate of substantial completion which shall establish the date. The
Ce�tificate shall include a list of items to be completed or corrected and shall fix the time
within which Gerber shall complete items listed therein.
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January 20, 2095
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 Gerber's
• local offices and in gaod order and regularly updated to record the completed
construction, One copy of al! of these shall be delivered to the City af C?shkosh Parks
'' Department upon completion of construction and prior to the authorization for final
payment. In addition, Gerber.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.
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� 4.24 Supply, erect, and remove plastic construction fencing.
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A�ticle 5—City's Responsibilities
8.1 Designate the Director of Parks to coordinate the project, provide guidance, and make
decisions on the City's behaff.
5.2 Make sufficient space available for Gerber and their subcontractors to construct the
inclusive playground, incfuding construction storage and staging areas. The generai
location of the inc}usive playground is attached as Exhibit B.
5.2 Provide Gerber with full information in a timely manner regarding the requirements for
� the projecf, including the City's objectives, schedule, and constraints relating to the
� project.
' S.3 Render decisions in a timely manner pertaining #o documents submitted by Gerber to
avoid unreasonable delay in the orderly and sequential progress of the projecf.
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' S.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 resfrictions, 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 avai(able to Gerber 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 Gerber 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 Gerber and are
expected to be included in their Proposal.
5.7 Prompt notify Gerber in writing of any fault or defect in the work or nonconformity with
the proposa! of construction documents which the City abserves or otherwise becomes
aware of.
5.8 Communicate with persons or entities employed or retained by Gerber in connection
with this project through Gerber.
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January 20, 2015
5.9 Provide Gerber with a Notice to Proceed when the project is ready to begin.
5.10 Complete al! tasks required before, during, and after the completion of the project related
to initial preparation and restoration of the site and surrounding area which not part of
the project, but only to the extent they are specifically identified below or elsewhere
; within this document:
' 5.10.1 Add topsoil, grade, and seed the disturbed area around the perimeter of the inclusive
playground;
; 5,10.2 Provide site security through personal monitoring for a minimum of eighteen (18} hours
after the final course of rubber surfacing is poured.
6.10.3 Haul excavated material from the project site,
' 5.10.4 Install and connect storm water d�ainage features to the City's public storm sewer drain
tile beyond the project's perimeter sidewalk.
5.10.5 Remove trees in the project area to ground level.
5.10,6 Remove and relocate park lighting in the construction area.
Article 6--Proiect Timinq
6.1 Gerber shall prepare a sche�ule 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 South Park 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 approvaf of submissions by
authorities having jurisdiction over the project.
6.2 Time limits stated in the contrac# 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 sha(I perform fheir respective obligations as
expeditiously as is consisfent 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 u#ilize the work for its intended use.
6.5 Based upon the proposal submitted by Gerber, a construction schedule shail be
submitted and, subject to authorized modifications, substantial completion of the entire
project shall be achieved on or before June 12, 2015.
6.6 If Gerber 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 Gerber, or by delay authorized by the
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January 20, 2015
: City or Foundation, or by other causes which the City, Foundation, and Gerber agree
may justify delay, then the contract time shall be reasonably extended through written
! agreement.
' Article 7—Protection of Persons and Propertv
7.1 Gerber shall be responsible for initiating, maintaining, and providing supervision of all
safety precaufions and programs in connection with the performance of this Agreement.
7.2 Gerber shall take reasonable precautions for the safety of, and shall provide reasonable
protection to prevent damage, injury, or Ioss 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 Gerber or Gerber' contractors; and (3} o#her praperty at or adjacent thereto, such as
trees, shrubs, lawns, walks, pavements, roadways, structures, and u#ilities not
' designated for removal, relocation, or replacement in the course of construction.
7.3 Gerber shall give notices and . comply with applicable laws, ordinances, rules,
' regulations, and lawful orders of public authorities bearing on the safety of persons or
property or their protection from damage, injury, or loss.
7.4 Gerber shall promptly remedy ciamage 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 Gerber, its contractors, or anyone directly or
indirectfy employed by them, or by anyone for whose acts they may be liabie.
Article 8—Correction of Work
8,1 Gerber shall promptly correct work rejected by the City or Foundation or known by
Gerber to be defec#ive 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. Gerber 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 upfln, any of fhe work
is found to be not in accordance with the requirements of the contract documents,
Gerber shall promptly correct the work after receipt of written nofice from the City to do
: so.
8.3 Nothing in this article shall be construed to establish a pe�iod of limitation with respect to
other obligations that Gerber may have under this Agreement. The one year time period
established in Section 13.2 relates only to the specific obligation of Gerber 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 Gerber liability with respect to its'
obligations other than the obligation to specifically correct the work.
8.4 If Gerber fails to correct nonconforming work as required or fails to carry out work in
accorclance 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 orde� 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 Gerber or other persons of entities.
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January 20, 2015
8.5 If Gerber 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 Gerber and seven (7) days
following receipt by Gerber of such second notice, the City may, withaut prejudice to any
� other remedies that it may have at law or equity, correct such deficiencies. In such case
ian appropriate change order shall be issued deducting from the payrnents then or
; thereafter due to Gerber, the costs of correcting such deficiencies. If the payments then
i or thereafter due are not sufficient to cover the amount of the deduction, the Cify shall
� invoice the difference to Gerber and Gerber shall pay the difference to the City within
thirty(34) days of such invoice.
; Article 9—Termination of Aareement
! 9.1 This Agreement may be terminated by any parfy 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 pa�ty initiating the termination.
9.2 This Agreement may be terminated by the City or Foundation without cause upon at
least seven (7} days written notice to the other parties.
9.3 In the event of termination not the fau�t of Gerber, Gerber shall be compensated for
services performed to the termination date, togefher with �eimbursable expenses then
' due.
9.4 Once construction of this project has comrnenced, 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, Gerber shall be
compensated for work completed to the termination date, together with reimbursable
expenses then due.
9.5 If Gerber defauEts ar persistentfy fails or negfects to carry out the work in accordance
with this Agreement, the City and/or Foundation may give written notice, with copies
provided to aIl parties to this Agreement that the party giving notice intends to terminate
the Agreement. If Gerber 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
af Gerber and take possession of the si#e and of all materials, and finish the work by
whatever method deemed most expedient. If the unpaid balance of the contract sum
exceads the expense of�nishing the work and aIl damages incurred by the Foundation
and City, such excess sha11 be paid to Gerber. If the expense of completing the work
and all damages incurred by the Foundation and City exceed the unpaid balance, the
! � City shall invoice Gerber for the difference and Gerber 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 �oundation fails to make payment when due, Gerber may give written notice of
Gerber intention to terminate this Agreement. Notice shall be given to the Foundation
with a copy of such notice to be given to the City. lf the Foundation fails to make
payment within seven (7} days after receipt of such notice, Gerber may give a second
written notice and, seven (7} days after receipt after such second written notice by the
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January 20, 2015
Foundation, Gerber may terminate this Agreement. If such termination occurs, Gerber
shall be compensatad for work completed to the termination date, together with
reimbursement expenses then due.
Article 10—Ownership and Use of Documents, Desians, 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 �emain the property of the City whether or not the project is cornmenced or
completed, provided, however, thak Gerber has been paid for such materials.
; 10.2 The intellectual property rights, if any, to the contents and concepts embodied in the
I design and construction ma#erials, shalE belang to Gerber or its design or construction
' subcontractors in accordance with their contractual relationship and may be capyrighted
' by them in the United States or any other country, or be subjec#to any other intellectual
�
property protection,
i 10.3 As to those design and construction rnaterials subject copyright, patent, trademark, or
any other form of intellectual property protection, Gerber grants to the City and the
Foundation as of the date that the design and consfruction materials are delivered to the
City and Foundation, a world-wide, paid up, nonexclusive, nontransferable (except as
� provided) license for the term of in#ellectual property protection, for the City and
Foundation to use, reproduce and have reproduced, dispiay 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 Gerber or any third party holding such intellectual property
interests. The foregoing rights of the City and the Foundation are subject to fhe
following restrictions: ,
10.3.1 All copyright and other intellectual property rights shall remain the property of Gerber
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 ma#eriafs for their future use except as provided in this section 10.3,
including sub-paragraphs.
10.3.2 The City and Foundation shall not use the design and construction materials for the
consfruction 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 pa�f of them,
shaN be faithful and accurate to the original and of good quality.
10.3.4 The City and Foundation shall not remove or alter, and sha11 reproduce and prominently
display on all copies made by the City and Foundation, the copyright notice and any
other proprietary legends.
10.4 Gerber shall turn over to the City and Foundation alI 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. �ailure to do so will be considered a breach and subject to
damages by the City and/or the Foundation.
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January 20, 2095
Article 11 --Insurance and Bonds �
Gerber and its subcontractors must hold insurance required by the City during the
� course of this project. Gerber shalt not commence work under this Agreement until it has
obtained aB required insurance required and such insurance has been approved by the City.
Gerber 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 —Indemnificafion
' 12.1 To the fullest extent permitted by law, Gerber shall indemnify and hold harmless the City
' and the Foundation, their employees, elected officials, board members, and consultants .
' from and against claims, damages, losses, and expenses, including but not limited to
' attorneys' fees, arising out of or resulting from performance of Gerber' involvement in the
inclusive playground. 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#angible property (other than the
work itselfl, but anly to the extent caused in whole or in part by neg(igent ac# of
omissions of Gerber, anyone directly or indirectly employed by Gerber or anyone for
� whose acts Gerber may be liabfe. Such obligation shall not be construed to negate,
abridge, or reduce other rights or obligations of indemnity whict►would otherwise exist as
to a party or person described in this paragraph.
'l2.2 ln claims against any person or entity indemnified under this article by an employee flf
, Gerber, anyone directly or indirectly employed by Gerber or anyone for whose acts
Gerber 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 Gerber under workers' compensation acts, disability benefit acts or other employee
' benefit acts.
A�ticle 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 oniy
governmental entities such as the City, but also contractor and others with whom the
City has a relationship. Ali parties to this Agreernent understand this public context in
which this project will proceed and agree to abide by prevailing open records laws.
13.2 The Foundation and Gerber agree to make documents avai(able to the City for review
and potentially release to those requesting public records. The Foundation, Gerber, and
the City understand and agree that the act of making records available to the City for
review will not constifute 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 dacument.
' 13.3 7o the extent that the City determines that dvcuments provided by the Foundation
and/or Gerber are public records, the City shall notify the Foundation and Gerber of this
conclusion and will allow five (5) business days for the Foundation and/or Gerber the
opportunity to initiate any proceading deemed necessary to protect their interests.
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January 20, 2095
13.4 The failure of the Foundation and/or Gerber to cooperate with public open records
requests will be considered a material breach af this Agreement.
' 43.5 Gerber open records responsibilities are limited to this project only.
Article '14—Miscellaneous Provisions
' 14.1 This Agreement shall be governed by the laws of the Sfate 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 pa�ties.
' 14.3 This Agreement represents the en#ire Agreement between the pa�ties and supersedes
' any and all prior nego#iations, representations, ar 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 Gerber shall be responsible to the City for acts and omissions of any employees,
subcontractors, and their agents and emp(oyees and other persons including the
architect and other design professionals performing any portion of Gerber's obligations
pursuant to this Agreement.
' 14.5 Gerber 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 Gerber 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. Labor and
material that does not conform #o these requirements shall be corrected by Gerber at
Gerber' expense.
14.7 If Gerber is delayed af 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
CiEy, or by internal labor disputes, fire, unusual delay in deliveries, adverse wea#her
conditions rtat reasonably anticipated, unavaidable casualties or other causes beyond
the control of Gerber, or by delay authorized by the City, or by other causes that the City
and Gerber agree may justify delay then the contract time shall be reasonabfy 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.
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January 20, 2095
' 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
i To the 4shkosh Community Foundation:
Diane Abraham
� Oshkosh Area Community Foundation
230 Ohio Street, Suite 100
' Oshkosh,WI 54902
To Gerber Leisure Products, Inc.
Ann Szalkowski
Gerber Leisure Products, Inc.
P.O. Box 42
Mount Horeb, WI 53572
(SIGNATURE PAGE FOLLOWS]
92
January 20, 2095
This Agreement entered in this day of , 2015.
CITY OF OSHKOSH
' Mark A. Rohloff
� City Manager
i
�
�
l Pamela R. Ubrig
City Clerk
APPROVED:
Lynn A. �.orenson
City Attorney
GERBER LEISURE PRODUCTS, INC.
Bx
Ann SzalkQwski, President
OSHKOSH COMMUNiTY FOUNDATION
By:
Diane Abraham, President and CEO
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January 20, 2015