HomeMy WebLinkAboutConstruction Access Revocable License Agreement-Greenfire Management Services 2022 1Li agq ED
RECEIV
JAN 2 it 2021
CONSTRUCTION ACCESS REVOCABLE LICENSE AGREEIT CLERK'S OFFICE
This License Agreement ("Agreement") is between the City of Oshkosh, a Wisconsin
Municipal Corporation (City or Grantor) and Greenfire Management Services, LLC, a
Delaware limited liability company with a principal office at 1209 Orangc Strcct,
3215 W. State Street; Suite 200
(Greenfire or Grantee).
Milwaukee, WI 53208
RECITALS
A. City owns a property along the north bank of the Fox River beginning at Jackson
. The agreement.Street and extending westerly past the area relevant to this a gCity's
property contains a section of its public River Walk along with grass, trees and
other vegetation, lighting, and other public amenities. The City's property is
identified as Tax Parcel 90102210000, and is Outlot 1 of Certified Survey Map
5879, recorded with the Winnebago County Register of Deeds as Document
Number 1395702 (City Parcel). The City Parcel is described as follows:
Outlot No 1 of Certified Survey Map No. 5879 as recorded in the Register of Deeds
Office as Document Number 1395702 and being a part of the South 1/2 of the North '/2
of the Southeast 'A, Section 23,Township 18 N,Range 16 E, 1st Ward, City of
Oshkosh, Winnebago County, Wisconsin.
B. Greenfire is constructing improvements on redevelopment property adjoining the
City Parcel that is owned by Mackson Corners Waterfront,LLC. The
improvements will occur in two phases. Although it is anticipated that both
phases will require similar Temporary Construction Licenses,this particular
License will apply only to the first phase (Project). Greenfire will need to obtain
a separate Temporary Construction License for the second phase. The adjoining
redevelopment property is known as 417 Marion Road, is identified as tax parcel
number 90102220300, and is Lot 3 of Certified Survey Map 7068, recorded with
the Winnebago County Register of Deeds as Document Number 1709684
(Development Parcel).
C. City and Greenfire have determined that a Temporary Construction License over
part of City's Parcel, ("TCL Area") is necessary to facilitate construction of the
Project. The TCL area is shown and described in Exhibit A, attached hereto and
incorporated herein,
D. City and Greenfire herein describe their respective rights and obligations for the TCL
located on TCL Area within the City Parcel.
December 16, 2021
c,
•
AGREEMENT
1. LICENSE. The City grants, and Greenfire accepts, a revocable License to use the
TCL Area. Greenfire accepts the License pursuant to the conditions and obligations described in
this Agreement. More specifically, Greenfire agrees that:
a. The License is temporary and revocable at the City's discretion. While the City's ability
to revoke the License is not limited to allegations of the breach of a term of this
Agreement, or based on an alleged default, the City does agree to consult with Greenfire
and the Owner of the Development Parcel prior to revoking the License regardless of the
reason;
b. The License will allow:
a. additional surface space necessary to construct building walls having shortened
setbacks from the property line;
b. additional surface space for construction site circulation;
c. additional surface space to allow the installation of stepping stones, sidewalks, or
other agreed upon surfaces within the TCL Area allowing pedestrian traffic from
the Development Site to have direct access to the public River Walk. This
specific use is not allowed until the owner of the Development Parcel has entered
into an acceptable easement agreement with the City governing details of the
stepping stones, sidewalks,or other agreed upon surfaces.
c. The License allows surface access only. This License does not grant any permission to
dig, excavate, create ruts or other surface indentions, or store equipment or materials in
the TCL Area. The exception to the foregoing storage prohibition is that Greenfire may
leave materials in the TCL while they are being installed on the wall closest to the
property line. However, equipment must be removed each evening. The purpose of the
TCL is to provide extra space for construction, and is not to be considered a storage,
stockpile, or construction staging area. Greenfire may request that the City approve
additional uses upon request; and
d. The License applies to Greenfire' employees, officers, agents, suppliers, contractors, and
subcontractors. Greenfire is solely and directly responsible to the City for all
actions/inactions on the TCL Area by employees, officers, agents, suppliers, contractors,
and subcontractors; and
e. The TCL Area shall only be accessed from the Development Parcel. No ingress or egress
shall be from or to the City's River Walk adjoining the TCL Area's eastern property line,
or from Jackson Street along the eastern property line. This is a material condition and
any breach of this condition may result in the immediate revocation of this License with
or without notice;and
f. The TCL Area may be temporarily expanded onto the River Walk during the project at
the discretion of the City. It is anticipated that Greenfire will request this expansion at
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December 16, 2021
some point during the Project. Greenfire must notify the City well in advance of their
need to expand the TCL Area. Preferably at least 30 days in advance. Even if such
expansion is approved, it will be for a limited duration each day, at the City's discretion.
For example the City may require that the expansion onto the River Walk may occur only
from 7:00 am—4:00 pm each day. This City will require that all equipment and materials
expected to cross or use the River Walk be identified in advance. The City's
requirements may include specific advance notice and signage for the public, specific
erosion control measures, specific actions to protect the River Walk surface, and specific
safety features for the expanded area. Potential safety features required by the City may
include flag persons.
g. Greenfire shall comply with all construction erosion control measure requirements and
guidelines by the City and WisDNR on and adjacent to the TCL Area before any such
activities occur. All erosion control plans must be approved by the City's Department of
Public Works before they are implemented and use of the TCL Area and/or River Walk
begins. This is a material condition and any breach of this condition may result in the
immediate revocation of this License with or without notice; and
h. Greenfire shall fully cooperate and comply with the City's instruction, direction, and
requirements in establishing and maintaining the use of the TCL Area; and
i. Greenfire shall protect the City's TCL Area, including an expanded Area on to the River
Walk, and is responsible for ensuring that the condition is materially the same as was
before Greenfire's actions. Extra care must be taken to protect trees, lighting, River
Walk surface, River Walk curb, underground electrical duct conduits, electric manholes,
and communication vaults that are not rated for construction equipment. Greenfire's
plans to use of the TCL Area, including the expanded Area on to the River Walk, shall be
approved before use. Approval will be required by all City Departments with facilities
within the TCL Area, as may be expanded, including the Parks Department,
Transportation Department (electrical), and Department of Public Works (obstruction
permit).
j. Greenfire shall, at its expense, repair all damage and return the TCL Area, as may be
expanded, to its condition at the beginning of the License. There will be a two (2) year
warranty period to make sure damages caused by this License can be identified.
Although this applies to all City surfaces and facilities, it is particularly relevant to the
condition of the trees within the TCL Area; and
k. Greenfire shall comply with all relevant federal, state, and local laws and rules pertaining
to Greenfire's use of the TCL Area; and
1. In the event the City terminates or revokes the License Agreement after consultation with
Greenfire and the owner of the Development Parcel, all equipment, materials, and
property shall be removed from the TCL Area within seven (7) business days and the site
will be returned to its original condition within thirty (30) days, excepting days during
winter or inclement weather. Site repairs shall be completed as soon as practicable after
the inclement weather has passed,and Winter has ended; and
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December 16, 2021
m. All other terms within this Agreement are incorporated into the License.; and
n. All terms of this Agreement are material and the breach of any may result in the
revocation of this License. To the extent that particular conditions are identified as
material, such identification is for clarity and emphasis only.
2. TERM. The term of this License begins retroactively the date Greenfire began
construction at the Development Parcel, which was *wank r , 2021. This TCL shall
expire without further notice upon the completion of the south wall of the Project and the steps
and/or pavers connecting the Development Parcel to the River Walk. A separate License
Agreement shall be required before beginning Phase II. The City's Community Development
Department, or their designee, shall have the sole discretion in determining the date Greenfire's
License expires. The License will expire pursuant to any of the following events:
a. The License will expire on the date Greenfire no longer remains involved as the
contractor at the Development Parcel. Any subsequent controlling developer is
required to negotiate and enter into a new Construction Access License Agreement.
The City is under no obligation to enter into a new Construction Access Agreement
with another entity. If the City is unclear of Greenfire's association with the
construction project, it will provide Greenfire with written notice of License
expiration via first class mail and allow Greenfire seven (7) calendar days from the
date of mailing to show-cause why the License should not expire.
b. If Greenfire remains involved as the contractor developer of the Project through its
completion, then the License will expire twenty (20) days after the City determines at
its sole discretion that the construction at the Development Parcel is complete, or has
been interrupted for an extended period of time,or has been abandoned.
c. The License will expire if Greenfire materially breaches this Agreement, after the
City provides Greenfire with written notice of breach via first class mail and allow
Greenfire seven (7) calendar days from the date of mailing to show cause why the
License should not expire.
d. The License will expire if Greenfire fails to reasonably minimize the impact of its use
of the TCL Area on neighboring properties, provided the City gives Greenfire written
notice of breach via first class mail and allows Greenfire seven(7) calendar days from
the date of mailing to explain why it believes the License should not expire.
e. The License will expire for any reason based upon any material adverse effect upon
the City, the adjoining public River Walk, the City's trees, electrical, and other
infrastructure serving the River Walk, City right of way, neighboring properties,
public utilities, or surface water runoff, provided the City gives Greenfire written
notice of breach via first class mail and allows Greenfire seven(7) calendar days from
the date of mailing to show explain why it believes the License should not expire.
f. All responsibilities, obligations, and liabilities identified in this Agreement or
pursuant to any law shall survive the expiration of the License.
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December 16, 2021
3. USE OF TCL AREA: This Agreement allows/requires Greenfire to use the TCL Area as
follows:
a. A map of the boundaries within the TCL Area that Greenfire will be allowed to use is
attached as Exhibit A, with the attached map fully incorporated into this Agreement.
b. Greenfire shall provide the City with acceptable pre-construction and post-
construction maps and written description of uses of the TCL Area. ALTA surveys
are not required. However, surveys stamped by a professional engineer shall be
provided that show grades acceptable to the City and no areas reasonably susceptible
to ponding. The TCL Area shall be left in the same condition, including vegetation,
grading, drainage, and elevations, as existed at the beginning of the License period.
The post-construction surveys shall be used to ensure that the TCL Area remains in
the same condition. The City will inspect the TCL Area to ensure that it remains in
the same condition.
c. Greenfire shall take all reasonable and necessary actions to preserve the existing
condition of the surface of the TCL Area, as well as any vegetation on, surrounding,
and near the TCL Area.
d. Greenfire is responsible for fencing the TCL Area with free-standing construction
fencing without any bury supports or embedment below grade. Greenfire is also
responsible for posting all necessary signs as required by law and/or the City. Fencing
shall be installed with surface level posts only, and no digging or soil removal is
allowed. Except as otherwise described, no part of the fencing shall be on the River
Walk. While the City requires fencing and signage to prevent unauthorized persons
to enter the TCL Area, Greenfire is solely responsible for the means and methods of
carrying out this obligation, and is solely responsible for all liabilities associated with
fencing and signage issues, as well as all responsibilities associated with their use of
the TCL Area.
e. Greenfire shall obtain the approval from the City of a site plan for the TCL Area,
which may include fencing and access. Greenfire shall not permit any waste or
damage to the TCL Area.
f. Greenfire shall maintain the TCL Area and keep the area in good condition and repair
and free of any litter, construction debris, and shall not allow litter, debris, dust, or
materials to blow away from the site. Grass and weeds shall be mowed during
growing season.
g. Except as explicitly stated in paragraph 1.c., above, only materials and equipment
used for the adjoining Development Parcel shall be allowed on the TCL Area.
Materials and equipment are only allowed on the TCL Area temporarily and shall not
be left on the TCL Area overnight.
h. Greenfire shall take all reasonable measures to avoid adversely affecting public areas
near the TCL Area, such as the River Walk and Jackson Street sidewalk and traffic
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December 16, 2021
lanes, and shall cooperate with surrounding property owners in efforts to minimize
adverse effects of Greenfire's use of the TCL Area. Greenfire shall perform daily
checks of the construction site perimeter, including the TCL Area,to ensure that there
is no debris and/or runoff from the construction site to the River Walk or public
sidewalk.
i. Greenfire shall remove all equipment, fencing, materials, debris, property, and so
forth from the TCL Area at the expiration of the License. The City may take all
reasonable actions to remove any object or condition from the TCL Area related to
the License which Greenfire has failed to remove, and shall be fully reimbursed by
Greenfire for these actions.
4. RIVER WALK. During the course of the Project, Greenfire may need to expand the
TCL Area into the City's public River Walk. Because of the River Walk's popularity,the
City may allow the limited, temporary, partial or full blockage of the River Walk
provided stringent steps developed by the City are followed by Greenfire. These steps,
which will all be at Greenfire's expense, include:
a. The public must be notified of the closures no less than seven(7)days in advance,
with the exact time line and method of notification to be created by the City;
b. Closures shall be for only limited parts or hours of days, and no overnight
closures;
c. Greenfire is responsible for all signage as required by the City;
d. Greenfire is responsible for using tracking pads on the River Walk;
e. Greenfire must advise the City of all vehicles, equipment, and material that may
use or cross the River Walk to determine if weight loads are appropriate;
f. Any other requirement developed by the City, including potential flag person(s);
g. All requirements are subject to change by the City.
5. USE OF CITY PROPERTY: Greenfire will access the TCL Area only from the
Development Parcel. Greenfire is responsible for protecting nearby City facilities such as
the River Walk, landscaping including without limitation trees, lighting, streets, curb, and
gutter, right of way terrace, and public sidewalks. The City and Greenfire must fully
document the condition of the right of way surface and facilities at the beginning of the
License period, so that any damage identified by the City during or after the License
period may be compared to its original condition. Greenfire shall repair or replace all
damaged City property and facilities at the completion of the construction project. The
City shall have complete discretion to perform inspections and to determine if repair or
replacement is appropriate, along with the appropriate time frame for performing such
repairs and/or replacements. Except for emergency safety concerns, or as otherwise
allowed, Greenfire shall not block the River Walk, or any street or public sidewalk for
any reason without the explicit permission of the City. Greenfire shall be responsible for
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December 16, 2021
the cost of all signage or other expenses the City deems necessary as a result of any
closures of public sidewalk or street.
6. FEE. No fee shall be required. However, the promises contained in this Agreement
are material considerations received by the City that have resulted in this Agreement.
7. INDEMNIFICATION. Greenfire agrees to hold the City; its officers; officials;
employees, and agents harmless from any and all liability, including claims, demands,
losses, costs, damages, and expenses of every kind and description (including death), or
damages to person or property arising out of the terms of this Agreement where such
liability is founded upon or grows out of the acts or omission of any of Greenfire's
officers, employees, agents, suppliers, or subcontractors while acting within the scope of
their employment or service to Greenfire. Greenfire shall indemnify the City for any
costs or damages it incurs that are associated with or related to this License and the terms
of this Agreement, excepting those costs or damages the City incurs as a result of its own
negligence, or willful or malicious actions.
8. MUNICIPAL LIABILITY. Nothing in this Agreement is intended as a waiver of the
municipality's right or opportunity to rely upon the municipal limitations and immunities
contained within Wisconsin law. Municipal immunities and limitations include, but are
not limited to, Sections 345.05, 893.80, and 893.83, Wisconsin Statutes. Such damage
limits, caps and immunities are intended to be preserved and are incorporated into this
agreement and shall be applied to and govern all disputes, contractual or otherwise, as
they apply to the municipality and its agents, officers, and employees.
9. RISK OF DAMAGE OR LOSS. Greenfire assumes all risk of the damage to or loss
of any person or of anything it places on the TCL Area. Greenfire is responsible for any
injury to all persons and personal property related to this License. Greenfire accepts the
property "as-is," and releases the City and waives any recovery against the City for any
loss arising out of or incident to Greenfire's use of the TCL Area or City right of way.
10. HAZARDOUS MATERIALS. Greenfire shall not use, generate, manufacture,
store, transport, or dispose of any flammable liquids, radioactive materials, hazardous
materials, hazardous waste, or similar material (collectively, "Hazardous Materials") as
that or these terms may be defined under federal or state laws under, on, in, or above the
TCL Area. Excepted from the previous sentence are Hazardous Materials in the vehicles,
equipment, or materials that Greenfire will use for the adjoining construction project.
Any discharge, leakage, or spillage of hazardous materials of any type under, on or over
the TCL Area as a result of Greenfire's actions, regardless of whether the actions are
otherwise allowed, shall be reported to the City pursuant to this Agreement, and to others
as required by law. Greenfire, at its sole cost and expense, shall undertake all appropriate
remediation on the TCL Area affected by its discharge, leakage, or spillage of Hazardous
Materials, whether owned by the City or any third party, to the satisfaction of the City
and any government body having jurisdiction over such event. Greenfire shall not be
responsible for any Hazardous Materials on or under the TCL Area, whether known or
unknown,present at the beginning of this License.
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December 16, 2021
11. INSURANCE. Greenfire shall maintain during the term of the License, at
Greenfire's sole expense, a policy of comprehensive general liability insurance in an
amount no less than One Million and NO/100 Dollars ($1,000,000.00) along with other
terms and amounts satisfactory to the City. The City shall be included as an additional
insured for such policy using language provided by the City. A copy of Greenfire's
certificate of insurance that identifies the City as an additional insured shall be provided
to the City prior to any use of the TCL Area pursuant to this License.
12. DEFAULT. In the event of a breach by Greenfire of any of the terms of this License,
all rights of License hereunder shall expire when the City provides written notice of such
default, and in addition to all other rights that the City may have at law or in equity.
13. RULES AND REGULATIONS. The City shall have the sole right to establish and
enforce reasonable rules and regulations concerning the management, use, and operation
of the TCL Area and adjoining City right of way by Greenfire, including addressing
issues related to how Greenfire's use of the TCL Area and right of way affects nearby
properties. However, any decision of the City to not establish or enforce reasonable rules
and regulations shall not act as an acceptance, approval, or consent to any action or
inaction of Greenfire, or wavier of any right of the City. Greenfire requests that this
Agreement not list additional specific rules and regulations to maintain flexibility in its
use of the TCL Area and acknowledges that its best interests are served by this method.
Compliance with any subsequently created rules and regulations established by the City
for Greenfire, its officers, agents, employees, and subcontractors are expressly made
terms of this Agreement.
14. ASSIGNMENT AND SUBLETTING. This License and Agreement is personal to
Greenfire and cannot be sold, transferred, encumbered, or pledged to any other person or
entity without the specific written approval of the City. In the event the City approves
any delegation or assignment duties related to this License, any such assignment shall not
relieve Greenfire of its obligations under this Agreement.
15. GOVERNING LAW. This License Agreement shall be interpreted, enforced, and
governed by the laws of the State of Wisconsin, and any disputes shall be resolved in
Winnebago County, Wisconsin.
16. AMENDMENTS. No provision of this Agreement may be amended or modified
except by an agreement in writing executed by both parties.
17. THIRD PARTY BENEFICIARIES. The terms of this License shall benefit and burden
only the parties to this Agreement and are not intended to benefit any third party.
18. SEVERABILITY. The determination by a court of competent jurisdiction that any
term of this Agreement is invalid, illegal, or unenforceable shall not invalidate the
remainder of the Agreement.
19. AUTHORITY. The persons signing below affirmatively state that they have the
authority to sign this agreement and bind the respective entities that they represent.
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December 16, 2021
T
CITY OF OSHKOSH
Date:
By: _ "'Oti(A/2.)alaA,Ch Y1
Mark A. Rohloff, City Manager JtgN tigtomCity Clerk
Approved as to form:
Lynn . Lorenson, City Attorney
GREENFIRE MANAGEMENT SERVICES,LLC
Date: 1/4/2021
By: it;L-
Name:Kevin Hansen
Title:Senior Project Manager
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December 16, 2021
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