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HomeMy WebLinkAboutMaintenance AgreementDocusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB MAINTENANCE AGREEMENT 1. Parties: City of Oshkosh, Wisconsin Municipal Corporation with a principal address of 215 Church Avenue, Oshkosh, WI 54901 (City or Owner).and Mackson Corners Waterfront, LLC, with a principal address of 604 Clay Street, Cedar Falls, IA 50613 (Mackson or Obligor) 2. Effective Date: The 1st day of April, 2023. 3. Term: The initial term of this license shall be ten (10) years from the Effective Date. There shall thereafter be two (2), five (5) year renewal terms unless either party sends the other a notice of non -renewal no more than one hundred eighty (180) days and no less than ninety (90) days before the end of the initial term or the end of the first renewal term. If both renewal terms are in effect, then this License shall expire without further notice at the completion of the second renewal term. The parties may renegotiate at any time, although neither party is required to renegotiate any term or agreement. At the point of non -renewal or the expiration of this License, each party shall work with the other to ensure execution of all documents necessary to clear any property title or to otherwise ensure it is clear to 3r° parties that this Maintenance Agreement is no longer in effect. 4. Termination: Owner may terminate this Maintenance Agreement at any time for any breach of any material term of this Agreement provided, however, Owner gives Obligor written notice and allows sixty (60) days for Obligor to remedy the problem. If the problem is not remedied, then this Agreement shall terminate without further action at the end of the sixty (60) day period and Obligor shall as soon as practicable return the Maintenance Areas to a condition substantially similar to the condition before Obligor's use. The actions described in this Agreement are connected to the consideration for a separate Access Maintenance Agreement between these same parties. In the event that Access Maintenance Agreement terminates or expires, then notwithstanding any other term described herein, this Maintenance Agreement will terminate on that same date at the Access Maintenance Agreement terminates or expires. 5. Purpose: Mackson has developed a residential and commercial redevelopment near property the City owns and on which the City's public River Walk has been developed. Mackson through a separate agreement has obtained permission to install pedestrian connections between its property and the public River Walk. The connections cross the City's property that is mostly grass. As part of the consideration for installing the pedestrian connections, as well as the fact that the condition of the grass area on City property affects the aesthetics of Mackson's development, Mackson is obligated to undertake the lawn maintenance activities described in this Agreement. 6. Maintenance: Obligor will maintain that the part of Owner's Property between the public River Walk and Mackson's south property boundary, and between Mackson's west property boundary and Jackson Street. A legal description of the Maintenance Property is attached as Exhibit A. A map of the Maintenance Area is attached as Exhibit B. 1 February 15, 2023 Docusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB a. The Maintenance Area is and will continue to be a public park and may be lawfully used by the public and by Obligor's employees, contractors, tenants, invitees, and any other person authorized by Obligor provided all such uses consistent with all City park rules as well as all other local, state, and federal laws, regulations, and standards. b. For purposes of convenience, the east end of the Maintenance Area as shown includes both grass and landscaping areas, as well as the City's River Walk. Despite the River Walk's inclusion into part of the Maintenance Area, its maintenance remains the obligation of the City. All other aspects of the Maintenance area is included in Obligor's responsibilities. c. The Owner will maintain the trees (existing and future), lights, and park benches within the Maintenance Area. Obligor is responsible for other maintenance activities, including: i. The lawn shall be mowed on a scheduled basis so as to maintain a neat appearance and to promote healthy growth. Clippings shall be removed or mulched. ii.Trimming of lawn areas not accessible by mowers shall be trimmed with line trimmers at the time of each mowing. iii. All lawn clippings shall be removed from the River Walk, sidewalks, and all other hard surfaces after mowing and trimming. iv. All snow and ice removal from hard surfaces, which more specifically are the paths or steps connecting Obligor's development with the River Walk. No snow or ice are allowed to be placed on the River Walk or any other hard surface. v.No landscaping or landscape features except grass shall be allowed to be planted or placed in the Maintenance Area except grass. vi. Removing and disposing of all trash and debris found in the Maintenance Area. d. All actions and applications within the Maintenance Area shall be undertaken in an environmentally friendly way and shall not endanger or adversely affect the neighboring water body. e. Obligor shall notify Owner of any substantial hazards or obstructions within the Maintenance Area as soon as practicable after discovery. 2 February 15, 2023 Docusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB f. The Maintenance Area, and the Owner's larger property, is subject to Wisconsin Department of Natural Resources jurisdiction. Therefore, all DNR rules, regulations and requirements shall be followed. 7. Maintenance Fee/Consideration: Obligor shall be paid a fee of zero dollars ($0.00) to perform the obligations described in this Agreement. Each party agrees that it receives material benefits from the other based on the terms described in this Agreement. 8. Compliance. The Maintenance Areas are located in a designated City Park. Obligor will comply with all City park policies, along with all local, state, and federal laws and regulations now in force, or which may hereafter be in force, pertaining to the Maintenance Area and the use thereof by Obligor. 9. Limitations. This Agreement is not intended to confer upon Obligor any right, title, estate or interest in the Maintenance Area. Obligor, its employees, agents, guests, invitees or others shall have no priority of use of the Maintenance Area over the public, except those areas that may be covered by the pedestrian access areas as described in a separate Access License Agreement. To the extent Obligor or any of the aforementioned wish to use or utilize the River Walk Park area, they will be subject to all rules and regulations that apply to the public. 10. No Assignment. Although this Maintenance Agreement is related to Obligor's adjoining property as well as related to the parties' Access License Agreement, this Maintenance Agreement is not automatically assigned or transferred to a new owner of Obligor's Property and/or any assignment of the Access License. This Agreement may be assigned only with the consent of the Owner. . 11. Indemnification. Obligor shall defend, indemnify and save harmless the City of Oshkosh, and its officers, Council members, agents, employees, and authorized volunteers ("Indemnified Party") against and from all liabilities, obligations, damages, penalties, suits, actions, demands, fines, losses, claims, costs, charges and expenses, including, without limitation, reasonable attorney's fees, which may be imposed upon or incurred by or asserted against Owner and/or its Indemnified Parties by reason of (i) any accident or injury to any person (including death resulting therefrom), or damage to property occurring to Owner's property in any way related to Obligor's use, occupancy, access to or egress from the Maintenance Area; or (ii) any negligence or willful misconduct of Obligor, its employees or contractors in connection with the use of Maintenance Area. The Indemnified Party will promptly notify Obligor in the event it receives written notice of a claim that the Indemnitee believes is subject to indemnification under this paragraph (provided that failure to do so will only relieve Obligor of its obligations to the extent Obligor establishes that it has been prejudiced by such failure). The Indemnified Party will cooperate with Obligor, at the Obligor's reasonable expense, in the defense or settlement of the claim, and the Indemnified Party may, at its own expense, elect to participate concurrently in the defense. The provisions of this paragraph shall survive the expiration or earlier termination of the term of this Maintenance Agreement. 3 February 15, 2023 Docusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB 12. Insurance. Obligor shall maintain commercial general liability insurance including bodily injury (including death) and property damage insuring Obligor with minimum coverage of at least $1,000,000 per claim. Obligor shall provide proof of insurance to Owner upon request. 13. Notices. Any notice, statement, demand or other communication required to be given or made by either party to the other pursuant to this Agreement or pursuant to any applicable law or requirement of public authority, shall be in writing and shall be deemed to have been properly given if sent by first class mail, postage prepaid or by overnight delivery or electronic transmission with confirmation of delivery to the following: Owner: City of Oshkosh c/o Parks Director PO Box 1130 Oshkosh, WI 54903-1130 Obligor: Mackson Corners Waterfront, LLC, Attn: Merge LLC 25 W Main Street, Suite 500 Madison, WI 53703 14. Limitation of Liability. Under no circumstances shall the Owner have any liability for any direct, indirect, special, consequential, or punitive damages, losses, costs, claims, penalties, fines, or judgments incurred by Obligor, its agents, employees, invitees, consultants, or contractors. 15. Miscellaneous. This is the entire Agreement of the parties and supersedes any prior agreements, whether oral or written, between the parties with respect to the subject matter hereof. No amendment or modification shall be effective unless in writing executed by both parties. SIGNATURE PAGE FOLLOWS 4 February 15, 2023 Docusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB IN WITNESS WHEREOF, Owner and Obligor have executed this Maintenance Agreement as of the date and year first above written. OW ki,in,C4 of Oshkosh By: By: vtt , rdit,GLa F574E Grill, City Manager SatitAzts, N.via FTE1x/LU2YbA43E._. Darla Salinas, City Clerk 7l4T5VED AS TO FORM: PaAM: L Prasl�a, (cwt Cf� afforiwi OO2A6Fe544F444 David J. Praska, Deputy City Attorney 5 OBLIGOR: Mackson Corners Waterfront, LLC By Name: (2) re64--1 J1), frDrv, Its: rAtAYO. February 15, 2023