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HomeMy WebLinkAboutKinas Excavating CONSTRUCTION STAGING AREA LICENSE AGREEMENT This License Agreement ("Agreement") is between the City of Oshkosh, a Wisconsin Municipal Corporation (City) with a principal address of 215 Church Avenue, P.O. Box 1130, Oshkosh, Wisconsin 54903-1130, and Kinas Excavating, Inc., a Wisconsin Corporation (Kinas), with a principal address of N6205 Lawson Drive, Green Lake, Wisconsin 54941. RECITALS The following vacant City-owned property ("Subject Property") is the subject of this Agreement: All that part of the SW'/ of the NE '/ of Section 21, T18N, R16E, City of Oshkosh, Winnebago County, Wisconsin, bounded and described as follows: Commencing at the North Y corner of Section 21, T18N, R16E; thence South 0°05' 19" East, along the West line of the NE 1/4 of said Section 21, a distance of 1629.17 feet; thence North 89'54'45" East, 370.00 feet to the East right of way of future Sawyer Creek Boulevard and the point of beginning; thence continuing North 89'54' 41" East, 188.35 feet to a point on a meander line along Sawyer Creek; thence South 04°26' 29" East along said meander line, 60.17 feet; thence South 89°54' 41"West 198.87 feet to the East right of way of future Sawyer Creek Boulevard; thence along the East right of way of future Sawyer Creek Boulevard 52.47 feet along the arc of a curve having a radius of 230.00 feet and measured along a chord bearing North 06'26' 50.5" East, 52.36 feet; thence North 00'05' 19"West, continuing along the said East right of way of future Sawyer Creek Boulevard, 7.98 feet to the point of beginning, containing 0.30 acres, more or less, and includes lands lying between the described meander line and the adjacent center line of Sawyer Creek. Parcel Identification Number: 0614440000 Street: Lake Point Drive, Oshkosh The Subject Property is identified in the attached Exhibit A. Kinas will reconstruct a retaining wall on private property adjoining the Subject Property's southern boundary. Kinas will use the Subject Property both for access to the reconstruction project area, as well as for a staging area for materials and equipment used in the reconstruction project. The reconstruction project is neither a public improvement project nor a public project in any manner. The act of storing equipment and material near the construction site results in efficiencies in terms of time, cost savings, and impact upon neighboring public facilities. These efficiencies benefit both the City and Kinas and form the underlying consideration for this Agreement. Therefore, the City agrees to allow Kinas temporary use of the Subject Property pursuant to the terms and conditions in this agreement. AGREEMENT 1. LICENSE. The City grants to Kinas a License to use the Subject Property. The details of the License and Kinas' obligations are as follows: a. The License is temporary and non-exclusive; b. The License is limited to the purposes of access and for a staging area for a nearby project; c. The License applies to Kinas' employees, officers, agents, suppliers, and subcontractors. However, Kinas is directly responsible to the City for all actions/inactions on the Subject Property by employees, officers, agents, suppliers, and subcontractors. d. The License on applies to activities related to the reconstruction of a retaining wall located on the Lake Pointe Condominium property adjacent to the southerly boundary of the Subject Property, and more specifically the License is related to work performed on tax parcels numbered 0614400200 through 0614400209; e. The License may be used for ingress and egress, and to otherwise provide access to the project parcels; f. The License may be used for storage and use of construction equipment, supplies, and material; g. The License requires full cooperation and compliance with the City in establishing the use of the Subject Property; h. The License requires Kinas to protect the City's Subject Property, including any facilities and improvements, and shall, at its expense, repair all damage and resort the Subject Property to its condition at the beginning of the License; and, i. All other terms within this Agreement are incorporated into the License. 2. TERM. The term of this License begins on the date this Agreement is signed by all parties. The Director of the City's Department of Public Works (Director), or their designee, shall have the sole discretion in determining the date Kinas' License expires. The License will expire pursuant to any of the following events: a. The License will expire on the date Kinas no longer remains retained as a contractor on the reconstruction project. If the City is unclear of Kinas' association with the retaining wall project, it will provide Kinas with written 2 notice of License expiration via first class mail and allow Kinas seven (7) calendar days from the date of mailing to show cause why the License should not expire. b. If Kinas remains as a contractor for the retaining wall project, then the License will expire twenty (20) days after the Director determines, at their discretion, that the retaining wall project is complete, or has been interrupted for an extended period of time, or has been abandoned. c. The License will expire if Kinas materially breaches this Agreement, after the Director provides Kinas with written notice of breach via first class mail and allow Kinas seven (7) calendar days from the date of mailing to show cause why the License should not expire. d. The License will expire if Kinas fails to reasonably accommodate the impact of its access and the Subject Property's use as a staging area on neighboring properties, after the Director provides Kinas with written notice of breach via first class mail and allow Kinas seven (7) calendar days from the date of mailing to show cause why the License should not expire. e. The License will expire for any reason based upon any material adverse effect upon the City, the adjoining City right of way, neighboring properties, or creeks, streams, or wetlands after the Director provides Kinas with written notice of breach via first class mail and allow Kinas seven (7) calendar days from the date of mailing to show cause why 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. 3. USE OF SUBJECT PROPERTY: This Agreement allows/requires Kinas to use the Property as follows: a. A map of the boundaries within the Subject Property that Kinas will be allowed to use is attached as Exhibit A, with the attached map and the information contained on this map fully incorporated into this Agreement. b. Kinas shall provide the City with acceptable pre-construction and post- construction topographical surveys of the area below the floodplain line on the Subject Property. The Subject Property shall be left in the same condition, including grading, drainage, and elevations, as existed at the beginning of the License period. The post-construction surveys shall be used to ensure that the flood plain area remains in the same condition. The Director will inspect the area above the flood plain line to ensure that it remains in the same condition. c. Kinas shall not cut, trim, bend, break, damage, or adversely affect in any way any tree, tree branch, shrub, vine or similar vegetation on or extending over the Subject Property. The only exceptions to this prohibition are trees, shrubs, vines, or similar vegetation which has their base on the adjoining 3 Lake Pointe Condominium property on which Kinas is undertaking the retaining wall project. d. Kinas shall preserve all trees, including all branches on the trees, shrubs, vines, and similar vegetation which are located on or near the Subject Property. e. Kinas shall cooperate with the City's requirements for grading and landscaping for the Subject Property during and after the retaining wall project. f. Kinas' use of the Subject Property may include the location of construction trailer, construction equipment, a materials trailer, construction materials, and other related to a staging area. g. Kinas shall obtain the approval from the Director of a site plan for the Subject Property, which may include storage locations, fencing, and access. Kinas shall not permit any waste or damage to the Subject Property. h. Kinas shall maintain the Subject Property and keep the area in good condition and repair and free of any litter, construction debris, and shall not allow litter, debris, or materials to blow away from the site. i. Only materials and equipment used for the retaining wall project at Lake Pointe Condominium shall be allowed on the Subject Property. j. Kinas shall take all reasonable measures to cooperate with surrounding property owners in efforts to minimize adverse effects of Kinas' use of the Subject Property. k. Kinas shall remove all equipment, fencing, materials, debris, its hazardous materials, and so forth from the Subject Property at the expiration of the License. The City may take all reasonable actions to remove any object or condition from the Subject Property related to the License which Kinas has failed to remove, and shall be fully reimbursed by Kinas for this removal. I. Kinas shall grade, seed, fertilize, and mat the Subject Property before the License expires or no later than twenty (20) days after the License expires for any reason other than the completion of the retaining wall project. The Director may allow, at their discretion, additional time to restore the site based upon adverse weather conditions. Kinas shall be required to import topsoil and other materials that are necessary for grading and seeding the property. The City may take all reasonable actions to restore the Subject Property related to the License which Kinas has failed to restore, and shall be fully reimbursed by Kinas for this restoration. 4. USE OF ADJOINING CITY RIGHT OF WAY: Kinas will access the Subject Property via City streets, curb and gutter, terrace, and public sidewalk. The License is contingent upon Kinas' protection of nearby City facilities such as 4 streets, curb and gutter, right of way terrace, and public sidewalks. Kinas 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. Kinas shall repair or replace all damaged City property and facilities at the completion of the retaining wall project. The Director 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. Kinas shall keep the adjoining right of way free from equipment, construction material, and debris. Kinas shall keep Lake Pointe Drive and the adjoining sidewalk clean at all times, and shall not cause the artificial accumulation of snow and/or ice on the street or public sidewalk. Kinas is responsible for keeping the public sidewalk in safe condition for public use. Except for emergency safety concerns, Kinas shall not block the street or public sidewalk for any reason without the explicit permission of the Director. Kinas shall be responsible for the cost of all signage or other expenses the Director deems necessary as a result of any closures of public sidewalk or street. 5. FEE. No fee shall be required. 6. INDEMNIFICATION. Kinas agrees to hold the City, its officers, officials, agents, and employees 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 Kinas' officers, employees, agents, suppliers, or subcontractors while acting within the scope of their employment or service to Kinas. Subject to any limitations contained in Sec 893.80 and any similar statute, of the Wisconsin Statutes, the City agrees to hold Kinas, 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 of omission of any City's officers, employees, or agents while acting within the scope of their employment. 7. 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. 8. RISK OF DAMAGE OR LOSS. Kinas assumes all risk of the damage to or loss of any person or of anything it places on the Subject Property. Kinas is responsible for any injury to all persons and personal property related to this License. Kinas accepts the property "as-is," and releases the City and waives 5 any recovery against the City for any loss arising out of or incident to Kinas' use of the Subject Property or City right of way. 9. HAZARDOUS MATERIALS. Kinas 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 Subject Property. Excepted from the previous sentence are Hazardous Materials in the vehicles, equipment, or materials that Kinas will use for the retaining wall reconstruction. Any discharge, leakage, or spillage of hazardous materials of any type under, on or over the Subject Property as a result of Kinas' 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. Kinas, at its sole cost and expense, shall undertake all appropriate remediation on the Subject Property affected by its discharge, leakage, or spillage of Hazardous Materials, whether owned by the City of any third party, to the satisfaction of the City and any government body have jurisdiction over such event. Kinas shall not be responsible for any Hazardous Materials on or under the Subject Property, whether known or unknown, present as of the date of this Agreement. 10. INSURANCE. Kinas shall maintain during the term of the License, at Kinas' 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 Kinas' certificate of insurance that identifies the City as an additional insured shall be provided to the City prior to any use of the Subject Property pursuant to this License. 11. DEFAULT. In the event of a breach by Kinas 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. 12. RULES AND REGULATIONS. The Director shall have the sole right to establish and enforce reasonable rules and regulations concerning the management, use, and operation of the Subject Property and adjoining City right of way by Kinas, including addressing issues related to how Kinas' use of the Subject Property and right or way affects nearby properties. Kinas requests that this Agreement not list additional specific rules and regulations to maintain flexibility in its use of the Subject Property and acknowledges that its best interests are served by this method. Compliance with any subsequently created rules and regulations established by the Director for Kinas, its officers, agents, employees, and subcontractors are expressly made terms of this Agreement. 13. ASSIGNMENT AND SUBLETTING. This License and Agreement is personal to Kinas and cannot be sold, transferred, encumbered, or pledged to any other person or entity without the specific written approval of the Director. In the event 6 the Director approves any assignment of this License, any such assignment shall not relieve Kinas of its obligations under this Agreement. 14. 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. 15. AMENDMENTS. No provision of this Agreement may be amended or modified except by an agreement in writing executed by both parties. 16. 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. 17. 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. CITY OF,OSHKOSH Date: , _ la)/A) By: Ma k A. Rohloff, City Manager Pam R. Ubrig, City Clerk App •ved as to for n Al Lorenso' i y Attorney KINAS EXCAVATING, INC. Date: to 1 I `"t By: ALl �� _ Bill Kinas:'resident h# .,: S 'e.,--Z-',4°,4- S v� < }' Cf f , .4 -. R � Ye Y` ` r t z� r �tP , ap - 4 k'^� < :.-...„.1_41. -- y t z' ` 4 E, t t4v 4 r J r, , .3- { § a+7 4- .d 1 '° ,4 NeT§y tt G 3' ' .t.---...:::,2:,-W -..--.- t ' e m z • f c y . . 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Y t t -f T 4 '- ,, � • ` .�r F" ` l m , r + - 1' ¢ f y f s: }<Ii i" ;J'.oft'l ictl 4 (3.- k I1--(Jii fl r Jai y 1 in=0.01 mi Y1:._,., _ .}. _ ter. , f .__. A 1 in=4Qft t •T The City of Oshkosh creates and maintains GIS maps and data for its own use. Tney may show the approximate relative location of property,boundaries and other feature from a variety of sources. printing Date;12/3/2013 OJHKO/H These map(s)/datasets are provided for information purposes only and may not be sufficient or appropriate for legal, engineering, or surveying purposes, They are provided'AS-IS' vtithout Prepared by:City of Oshkosh,Wl ore THE WATER warranties of any kind and the City of Oshkosh assumes no Gabiity for use or misuse. H.!joYn4Plannno 8asa tlap-J27.fixd Exhibit User jean Aco CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDWYYYY) `.... ""-- 01/10/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER NAME CT Nolan Insurance Agency, LLC Nolan Insurance Agency, LLC (A/C.No.E T): 920-346-2241 FAX 920-346-5600 112 East Main Street E-MAIL _ P. O. Box 238 ADDRESS: lnolan @nolanins.com Brandon, MI 53919 INSURER(S)AFFORDING COVERAGE NAM A INSURERA: West Bend Mutual 15350 INSURED 920-294-3879 INSURER B: ICinas Excavating, Inc. INSURERC: N6205 Lawson Drive INSURERD Green Lake, WI 54941 INSURER E: — INSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUER POLICY EFF r�POLICY EXP LTR l TYPE OF INSURANCE INSR WVD POLICY NUMBER (MM/DD/YYYY)I(MM/DDIYYYY) LIMITS IGENERAL LIABILITY EACH OCCURRENCE 1$ 1,000,000 A X COMMERCIAL GENERAL.LIABILITY CPS 0956044 07 05/01./2013 05/01/2014 DAMAGE TO RENTED PREMlSES(Ea occurrence) $ 200,000 CLAIMS-MADE k (OCCUR MED EXP(Any one person) S 10,000 PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG S 2,000,.000 POLICY X JECT LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $___ 1,000,000 A X ANY AUTO CPS0956044 05/01/2013 05/01/2014 BODILY INJURY(Per person) $ ALL OWNED SCHEDULED I -----_- AUTOS AUTOS BODILY INJURY(Per accident) S X HIRED AUTOS X NON-OWNED I I PROPERTY DAMAGE AUTOS (Per accident) $ X UMBRELLA LIAB X I OCCUR EACH OCCURRENCE S A EXCESS LIAB _.l CLAIMS-MADE CUS0956046 05/01/2013 05/01/2014 AGGREGATE I$ 4,000,000 DED I X I RETENTION SO WORKERS COMPENSATION ! WC STATU- X f OTH AND EMPLOYERS'LIABILITY YI N TORY LIMITS A ANY PROPRIETOR/PARTNER/EXECUTIVE I E.L.EACH ACCIDENT $ 500,000 OFFICER/MEMBER EXCLUDED? N j N/A WIS0956045 05/01/22013 05/01/2014 (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 500,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT S 500,000 Rented Equipment *60,000 $1000 Ded A Com Equipment Floater CPS 0956044 06 05/01/2013 05/01/20141 I j DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES(Attach ACORD 101,Additional Remarks Schedule,If more space is required) The City of Oshkosh, and its officers, council members, agents, employees, and authorized volunteers are listed as additional insureds on the general liability and auto liability but only in reference to work performed by Nines Excavating, Inc. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Oshkosh ACCORDANCE WITH THE POLICY PROVISIONS. 235 Church Avenue P.O. Box 1130 AUTHORIZED REPRESENTATIVE Oshkosh, WI 54902 920-236-5000 I � ( ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010/05) The ACORD name and logo are registered marks of ACORD