HomeMy WebLinkAboutAccess License AgreementDocusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB
ACCESS LICENSE AGREEMENT
1. Parties: City of Oshkosh, Wisconsin Municipal Corporation with a principal address of 215
Church Avenue, Oshkosh, WI 54901 (City or Licensor).and Mackson Corners Waterfront, LLC,
a Delaware limited liability company with a principal address of 604 Clay Street, Cedar Falls, IA
50613 (Mackson or Licensee)
2. Effective Date: The 22nd day of February, 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otherwise ensure it is clear to 3r° parties that this License Agreement is no longer in effect.
4. Termination: Licensor may terminate this License Agreement at any time for any breach of any
material term of this Agreement provided, however, Licensor gives Licensee written notice and
allows sixty (60) days for Licensee 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
Licensee shall as soon as practicable return the License Areas to a condition substantially similar
to the condition before Licensee's use.
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 seeks to
construct and maintain pedestrian connections between its redevelopment and the City's River
Walk. The pedestrian connections are comprised of several smaller connections comparable to
sidewalks between residential dwelling units and the River Walk, and one larger access area
connecting a plaza area Licensee has included in its redevelopment with the public River Walk.
6. License: Licensee desires to use parts of Licensor's Property between the Fox River and
Licensee's property known as 417 Marion Road. The License Area consists of seven (7)
pedestrian path connections to the public River Walk, as well as one (1) larger pedestrian area
connecting a plaza on Licensee's property with Licensor's public River Walk.
a. The legal descriptions for eight (8) License Areas is attached as Exhibit A. A map
showing the location of the eight (8) License Areas is attached as Exhibit B.
b. Licensor will allow Licensee to use the License Areas upon the terms, covenants and
conditions described in this Agreement. Subject to and in accordance with the terms and
conditions of this Agreement, Licensor hereby grants to Licensee a limited, non -
October 14, 2022
Docusign Envelope ID: OCCFC56A-6D9B-4C29-9161-DCE417E626AB
transferrable license to use the areas described in Exhibits A and B for pedestrian access
between Licensee's property and the Licensor's public River Walk.
c. The License Areas may be lawfully used by Licensee's employees, contractors, tenants,
invitees, and any other person authorized by Licensee (a "User").
d. The Licensor must approve the hard surfaces to be installed in the License Area prior to
installation. Licensee currently intends to install poured concrete pavers in the seven (7)
smaller License Area, and poured concrete in the one (1) large License Area. Licensee
may install alternative surfaces upon approval of Licensor.
e. The License Areas, and the Licensor's larger property, is subject to Wisconsin
Department of Natural Resources jurisdiction. Therefore, Licensee shall not dig or insert
any object more than twelve (12) inches from the current surface elevation without
approval of the City.
f. Licensee shall not install anything other than an approved hard surface in the License
Area, along with grass surrounding the hard surface. Prohibited installations include
posts, signs, or other landscaping installed in the License Areas.
g. Licensee shall be responsible for all maintenance within the License Area.
7. License Fee/Consideration: There shall be a fee of zero dollars ($0.00) for the license. The
parties agree that Licensee benefits from the access as an amenity of its development, and
Licensor benefits through Licensee's agreement to maintain the License Areas along with the
Landscape Maintenance Area on Licensor's property as described in a separate Maintenance
Agreement.
8. Compliance. The License Areas are located in a designated City Park. Licensee 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 License Area and the use thereof by Licensee.
9. Limitations. This Agreement is not intended to be and shall not be considered a conveyance of
the License Area by Licensor to Licensee, nor to confer upon Licensee any right, title, estate or
interest in the License Area, except as provided herein.
10. No Assignment. This License Agreement does not attach as an interest in real estate and
therefore is not automatically transferred upon conveyance, nor binding on the parties' successors
in interest. However, this Agreement may be recorded to ensure notice of the limitations of this
Agreement and of the License Areas. Licensee shall not assign, transfer or otherwise encumber
this Agreement, or the License granted hereby, nor shall Licensee permit or suffer any other
person or entity to use or occupy the License Area other than as contemplated by the terms of this
License, unless agreed to by Licensor.
October 14, 2022
Docusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB
11. Indemnification. Licensee 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 Licensor 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 Licensor's property in any way related to
Licensee's use, occupancy, access to or egress from the License Area; or (ii) any negligence or
willful misconduct of Licensee, its employees or contractors in connection with the use of
License Area. The Indemnified Party will promptly notify Licensee 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 Licensee of its obligations to the extent
Licensee establishes that it has been prejudiced by such failure). The Indemnified Party will
cooperate with Licensee, at the Licensee'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 License Agreement.
12. Insurance. Licensee shall maintain commercial general liability insurance including bodily
injury (including death) and property damage insuring Licensee with minimum coverage of at
least $1,000,000 per claim. Licensee shall provide proof of insurance to Licensor 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:
Licensor: City of Oshkosh
c/o Parks Director
PO Box 1130
Oshkosh, WI 54903-1130
Licensee: Mackson Corners Waterfront, LLC,
Merge, LLC
25 W Main Street, Suite 500
Madison, WI 53703
14. Limitation of Liability. Under no circumstances shall the Licensor have any liability for any
direct, indirect, special, consequential, or punitive damages, losses, costs, claims, penalties, fines,
or judgments incurred by Licensee, its agents, employees, invitees, consultants, or contractors.
3
October 14, 2022
Docusign Envelope ID: 0CCFC56A-6D9B-4C29-9161-DCE417E626AB
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.
IN WITNESS WHEREOF, Licensor and Licensee have executed this License Agreement as of the date
and year first above written.
LICENSOR: City of Oshkosh
Signed by:
LVtt,, 1 AVA,
ti\ •\--14AA1Rnm E514Et
P gned by:
Re ecca Grill, City Manager
Sal,itAAas, �A.A&
BY: \--F1 F1R7F0295A4RF
Darla Salinas, City Clerk
I'1 WED AS TO FORM:
cwuj, Pr'aS6, II,dkviwt (fh Q{fs t
'.nna2AaEnR,AP4AA
David J. Praska, Deputy City Attorney
4
LICENSEE: Mackson Corners Waterfront, LLC
By:
Name: «t -w Dahl r'►n.
Its: r\0..'0. 4'A,
October 14, 2022