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FEBRUARY 22, 2005
05-46
RESOLUTION
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PURPOSE:
APPROVE LEASE WITH OSHKOSH TRUCK CORPORATION
INITIATED BY:
CITY ADMINISTRATION
BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached
Lease with Oshkosh Truck Corporation for vacant land adjacent to Timmerman Landfill
for vehicle staging is hereby approved and the proper City officials are hereby authorized
to execute and deliver the agreement in substantially the same form as attached hereto,
any changes in the execution copy being deemed approved by 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.
MARVEL DR.
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Map for Resolution 05-046
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CITY OF OSHKOSH EXHIBIT "A"
ENGINEERING DIVISION
FILE NAME DRAWN LEASE OF VACANT AVIATION
Oshkosh Truck Lease 2-21-2005 INDUSTRIAL PARK LAND TO
GRAPHIC ~UO 210 OSHKOSH TRUCK CORPORATION
SCALE: (IN FEET) 1 INCH ~ 200 FEET
Lease Agreement
This LEASE (the "Agreement"), made and entered into this - day of February
2005, is by and between the CITY OF OSHKOSH, a Wisconsin municipality with its
principal offices located at 215 Church Ave., P.O. Box 1130, Oshkosh, WI 54903-1130,
("Lessor" or "City") and Oshkosh Truck Corporation, a Wisconsin corporation, with its
principal offices located at 2307 Oregon Street, Oshkosh, WI 54902 ("Lessee" or "Oshkosh
Truck"):
WITNESSETH:
WHEREAS, Lessor is the owner of certain real property, described below and
shown on the attached map, located in the City of Oshkosh, Winnebago County,
Wisconsin, consisting of approximately 12.075 acres ("Property"); and
WHEREAS, Lessee is the owner of certain real estate adjacent to the Property,
which is used for their industrial operations; and
WHEREAS, in exchange for payment by Lessee to Lessor and on the terms and
conditions as described herein, Lessor agrees to lease to Lessee, and Lessee agrees to
lease the Property for use as an improved vehicle and large component storage area for
support of its military vehicle remanufacturing activities; and
WHEREAS, by Resolution 05-046, adopted February 22, 2005, the Common
Council for the City of Oshkosh authorized this agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.
Description of the Property. Lessor hereby agrees to lease to Lessee the Property,
as shown on the maps attached hereto as exhibit "A" and described as follows:
Outlot 1 of CSM #5185, Winnebago County Records (City Parcel #14-1367-
0400)
Outlot 2 of CSM #5185, Winnebago County Records (City Parcel #14-1367-
0500)
Outlot 2 of CSM #5186, Winnebago County Records (City Parcel #14-1367-
0600 )
All parcels being located in the E % of the NE % of Section 2, T17N, R16E
in the 14th Ward, City of Oshkosh, Winnebago County, Wisconsin. Said
parcels containing approximately 12.075 acres.
last revised: February 18, 2005
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2.
Lease Payment. Lessee shall pay as rent for the term of this lease, the sum of ONE
and no/100 DOLLAR ($1.00). All payments shall be made to COLLECTIONS, City
of Oshkosh, P.O. Box 1130, Oshkosh, WI 54903-1130. .
3.
Lease Term and Renewal. This is an approximately five-year lease, beginning
on February 23,2005 and ending on December 31,2010. The tenancy shall
automatically renew for one-year terms on the same terms and conditions
contained herein, unless terminated by the Lessor or Lessee with written notice
to the other by October 1 for the following lease year.
4.
Lessee's Development Activities. Lessee shall use and occupy the subject
premises for storage of motor vehicles and/or large motor vehicle components in
connection with Lessee's military vehicle remanufacturing activities and for no
other purpose except with the prior written consent of Lessor. Lessee shall not
use the premises for any unlawful or extrahazardous purpose nor shall Lessee
permit others to use the premises for such purposes. At all times, Lessee shall
observe and comply with all rules, regulations, laws, and ordinances in effect or
which may be enacted during the term of this lease.
5.
Maintenance of Property. The parties have examined and know the condition of
the premises and Lessee has accepted the premises in good order and repair,
and no representations as to condition or repair thereof have been made by
Lessor or agent prior to, or at the execution of, this Agreement. Lessee shall
keep the premises in reasonably good repair. Lessee shall be responsible for
payment of utilities, for reasonable repair and maintenance to any paved
surfaces, for snow removal and yard care services. Lessor assumes no
responsibility whatsoever in this regard.
6.
City Access. Lessee shall provide the City with access to the Leased Property at
reasonable times for public purposes which include, but are not limited to,
monitoring/remediation of Landfill Conditions, and access to Gallops Creek (a/k/a
Merritts Creek) on the Leased Property as well as other property that Oshkosh
Truck owns adjacent to Gallops Creek (a/k/a Merritts Creek) for purposes of
vegetation control in said Creek, which access shall not unreasonably interfere with
Truck's operations on said properties. The City shall, in exercise of such access
rights, observe such security provisions as Oshkosh Truck shall reasonably impose
on it consistent with the use of the Leased Property under U.S. Department of
Defense or other applicable government contracts and, with respect to other
Oshkosh Truck property adjacent to Gallops Creek (a/k/a Merritts Creek),
Oshkosh's reasonable internal security requirements.
7.
Future Alteration to Property to be approved. Except for the initial construction of
the storage area, Lessee shall not make any contract for construction, repair, or
last revised: February 18, 2005
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8.
9.
10.
11.
12.
improvement on, in, of, or to the premises or any part thereof, or for any work to be
done or materials to be furnished on or to the premises or any part thereof, without
having first obtained prior written permission of Lessor. Provided such additional
improvements are consistent with the purposes of this agreement, Lessor will not
unreasonably withhold such written permission. Lessee shall provide in any such
contract that no lien of mechanics or materialmen shall be created or 'shall arise
against the premises.
Restoration of Leased Property. Prior to the conclusion of this ground lease,
Oshkosh Truck shall remove all impacts caused by and improvements added to the
Leased Property by Oshkosh Truck during its occupancy and, at the conclusion of
the Lease Agreement, return the Leased Property in substantially the same
condition as that which existed at the time of the inception of the Lease Agreement
except for those conditions arising during the Lease Agreement which are Landfill
Conditions. Lessee shall remove prior to lease termination all personal property
from the leased premises. Any property remaining on the premises after the
expiration of the lease shall be deemed abandoned and shall become the property
of the Lessor. Upon termination of this lease, Lessor shall grade and re-seed the
property. Lessee shall be solely responsible for the removal or other suitable
remediation of any and all toxic or hazardous materials on the premises to the
extent such materials arose from its use of the property and shall remove or
otherwise suitably remediate all such substances upon expiration of this lease.
Special Assessments and Taxes. The property is currently exempt from real estate
taxes. Lessee shall be responsible for any taxes or assessments levied upon the
property during the term of this lease.
Return of Premises to Lessor. At the expiration of this lease or in the event Lessee
shall by any court be adjudged bankrupt or insolvent or shall make an assignment
for benefit of creditors, Lessee shall give peaceable possession of the premises to
Lessor.
Liability Insurance. Lessee shall maintain what it reasonably determines is an
appropriate commercial level of liability insurance covering Lessee's acts and
omissions; fire and general casualty on Lessee's personal property, and worker's
compensation insurance. In addition, Lessee agrees to protect and hold Lessor
harmless against all actions, claims and demands of any kind or character
whatsoever to the extent arising from Lessee's use of the premises, and shall
indemnify the City all sums which it may be obliged or adjudged to pay therefor, for
all liability to the extent it may arise, including attorney fees, within thirty (30) days
of demand.
Indemnification. The City covenants and agrees, at its sole expense, to indemnify
and save Lessee harmless from and against any and all claims, demands, liabilities,
last revised: February 18,2005
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13.
14.
15.
16.
17.
causes of action, suits, judgements, costs, damages, fines, penalties and expenses
(including reasonable attorneys' fees) ("Claims") which may at any time be imposed
upon, incurred by, asserted against or sustained by Lessee, that arise from or in
connection with any present or future contamination, chemical reaction or any other
environmental condition caused from the Timmerman sanitary landfill owned and
operated by the City and located adjacent to the Leased Property which is affecting
all or any portion of the Leased Property ("Landfill Condition").
Indemnification limitation and Truck Indemnification. The indemnification obligations
of the City set forth in the previous paragraph shall not be construed to include
matters to the extent they have been caused by, affected by or exacerbated by the
occupancy of the Leased Property by Lessee ("Oshkosh Truck's Occupancy") or the
conduct or actions of Lessee or its employees, agents, contractors, subcontractors,
invitees (excluding City personnel on the Leased Property pursuant to paragraph
6 hereof) or licensees ("Oshkosh Truck Persons") or any other third parties not
associated with the City during the Oshkosh Truck Occupancy and Oshkosh Truck
shall indemnify and hold harmless the City to the extent Claims arise from Oshkosh
Truck's Occupancy or caused by Oshkosh Truck Persons.
AssiQnment. This agreement shall not be modified except upon mutual written
agreement and shall not be assigned by Lessee without the written consent of
Lessor.
Entire AQreement. This Agreement supersedes all other agreements or other
understandings between Lessee/Buyer and Lessor/Seller, whether verbal or written,
concerning the Property and contains the entire understanding between
Lessee/Buyer and Lessor/Seller with regard to the Property, and it shall inure to the
benefit of and shall bind the parties hereto, their respective heirs, executors,
successors or assigns.
Modifications. This Agreement may be amended or modified only by written
instrument duly executed by, and delivered to both of the parties hereto.
Notices. Any notice required hereunder shall be given in writing, signed by the party
giving notice, personally delivered or mailed by certified or registered mail, return
receipt requested or by facsimile transmission to the parties' representative as set
forth above. Notice shall be deemed delivered: (a) in the case of personal delivery,
on the date when personally delivered; or (b) in the case of certified or registered
mail, on the date when deposited in the United States mail with sufficient postage
to effect such delivery; or (c) in the case of facsimile, on the date when received.
Facsimile signatures shall be deemed to be originals in all respects. Either party
may change the address to which notice must be given by delivery of written notice
to the other party.
last revised: February 18, 2005
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18.
Severability of Provisions. In case anyone or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if the invalid, illegal or
unenforceable provision had never been contained herein.
19.
Headings. Descriptive headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.
20.
Compliance with Laws. All activities under this agreement shall conform to all
applicable state, local and federal laws, rules and regulations. Lessee shall secure
all necessary plan approvals and permits prior to beginning conversion activities,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LESSEE:
LESSOR: CITYOF OSHKOSH
Richard A. Wollangk, City Manager
Pamela R. Ubrig, City Clerk
This Agreement was drafted by:
Attorney Warren P. Kraft
Oshkosh, Wisconsin 54903-1130
last revised: February 18, 2005
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