HomeMy WebLinkAbout27. 17-196 APRIL 11, 2017 17-196 RESOLUTION
(CARRIED 7-0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE GRANT AGREEMENT WITH DEPARTMENT OF
TRANSPORTATION FOR A TRANSPORTATION ECONOMIC
ASSISTANCE GRANT FOR THE TRANSLOAD FACILITY,
SOUTHWEST INDUSTRIAL PARK
INITIATED BY: COMMUNITY DEVELOPMENT
WHEREAS, the City of Oshkosh has been awarded a Wisconsin Department of
Transportation, Transportation Economic Assistance (TEA) grant in the amount of
$1,008,266 to relocate the Oshkosh Corporation loading site near Allerton Drive and
construct a new transload shipping facility in the Southwest Industrial Park; and
WHEREAS, important elements of the TEA grant Agreement are:
1) City and Watco funds must match the $1,008,266 grant in land, in-kind materials/
services and cash.
2) The transload site must remain in City ownership.
3) The 300 jobs retained by Oshkosh Corporation will be guaranteed by the City of
Oshkosh.
4) The Wisconsin DOT grant funds are a reimbursement program for eligible
expenses.
5) The construction project will be publically bid and administered by the City.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the City hereby accepts a $1,008,266 Transportation Economic Assistance
grant from the Wisconsin Department of Transportation, and the proper City officials
are hereby authorized and directed to execute the attached Agreement for purposes of
same, any changes in the execution copy being deemed approved by their respective
signatures, and to carry out all actions necessary to implement the City's obligations
under the Agreement for this project.
Exhibit A
1
Proposed multi trans
fa�ility in the Southwest Industrial
Park along Global Parkway
� I
Future rail
I -------------- �
spur extensions
I
------------------------------------------
o
..i r v PJB
150' 0 75' 150' 300'
/ GRAPHIC SCALE: r 150'
Exhibit C
Funding Sources
SOURCE AMOUNT FORM (Cash, Land, Services)
City of Oshkosh $433,000 Cash, land, and services
Watco Companies LLC $673, 231 Cash and services
WisDOT TEA Grant $1,008,266 Cash
TOTAL $2,114,497
\ \ W
\ 1
Exhibit D
„
I I
I
Lot ;
I
+/- 15 acres
Future rail
I �
---------
-----------
spur
----------spur extension
-----------
--------------
Lot 2Proposed
\
12 acres '' ° transload
` facility
A
0'7- i
150' 0 75' 150' 300'
�1
/ GRAPHIC SCALE: r 150'
TRANSPORTATION ECONOMIC ASSISTANCE AGREEMENT - RAIL
(Rail Spur)
FOR
2 , 906 feet of
Railroad Spur Trackage
Identification Number 4994-11-71
By and Between
City of Oshkosh, Winnebago County, Wisconsin
and
The Wisconsin Department of Transportation
April 2017
TABLE OF CONTENTS
Page
ARTICLE 1.0 DEFINITIONS...................................................................................................................................1
ARTICLE 2.0 THE APPROVED PROJECT..........................................................................................................3
SECTION 2.1 GENERAL DESCRIPTION........................................................................................................................3
SECTION 2.2 SPECIFIC DESCRIPTION..........................................................................................................................3
SECTION 2.3 DIRECT JOB GUARANTEE......................................................................................................................4
ARTICLE 3.0 PROJECT FINANCES.....................................................................................................................4
SECTION 3.1 ASSISTANCE AMOUNT...........................................................................................................................4
SECTION 3.2 REQUIRED MATCH SHARE.....................................................................................................................5
SECTION 3.3 PROJECT BUDGET..................................................................................................................................5
SECTION 3.4 PAYMENT OF ASSISTANCE AMOUNTS....................................................................................................5
ARTICLE 4.0 PROJECT MANAGEMENT...........................................................................................................5
ARTICLE 5.0 PROJECT FACILITY OPERATION.............................................................................................6
SECTION 5.1 WRITTEN AGREEMENTS........................................................................................................................6
SECTION 5.2 MAINTENANCE OF PROJECT FACILITY...................................................................................................7
SECTION 5.3 PROJECT FACILITY USE.........................................................................................................................7
ARTICLE 6.0 PROJECT PROPERTY SECURITY,LIENS AND SALE...........................................................8
SECTION 6.1 SECURITY FOR BORROWING..................................................................................................................8
SECTION 6.2 LIENS AGAINST IMPROVED PROPERTY..................................................................................................8
SECTION 6.3 SALE OF IMPROVED PROPERTY OR MUNICIPAL LAND...........................................................................9
ARTICLE 7.0 DEFAULT AND TERMINATION................................................................................................10
SECTION 7.1 DECLARATION OF DEFAULT................................................................................................................10
SECTION 7.2 TERMINATION FOR DEFAULT..............................................................................................................10
SECTION 7.3 REMOVAL OF A CONDITION OF DEFAULT............................................................................................12
SECTION 7.4 EXPENSES OF TERMINATION...............................................................................................................12
SECTION 7.5 FORCE MAJEURE.................................................................................................................................12
ARTICLE 8.0 REPRESENTATIONS AND WARRANTS..................................................................................13
SECTION8.1 WIsDOT.............................................................................................................................................13
SECTION 8.2 MUNICIPALITY....................................................................................................................................13
ARTICLE 9.0 HOLD HARMLESS........................................................................................................................13
ARTICLE 10.0 GENERAL CONDITIONS ..........................................................................................................15
SECTION 10.1 CHOICE OF LAW................................................................................................................................15
SECTION10.2 NOTICE..............................................................................................................................................15
SECTION 10.3 TRANSFER OF RIGHTS UNDER THIS AGREEMENT.............................................................................16
SECTION 10.4 SEVERABILITY...................................................................................................................................17
SECTION 10.5 AMENDMENT,CONSENTS AND APPROVALS ......................................................................................17
SECTION10.6 OFFICIALS.........................................................................................................................................18
SECTION 10.7 HANDICAPPED...................................................................................................................................18
SECTION 10.8 ENVIRONMENTAL PROTECTION.........................................................................................................18
SECTION 10.9 PROHIBITED INTERESTS.....................................................................................................................20
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SECTION 10.10 NON-DISCRIMINATION.....................................................................................................................21
SECTION 10.11 ENTIRE AGREEMENT........................................................................................................................23
SIGNATURES........................................................................................................................................................24
ATTACHMENT I-PROJECT BUDGET
ATTACHMENT II-DESCRIPTION OF CONSTRUCTION WORK TO BE PERFORMED
ATTACHMENT III-PROJECT OPERATIONS,ACCOUNTS AND REPORTS
ATTACHMENT IV-EASEMENT
ATTACHMENT V-TEA JOBS GUARANTEE
ATTACHMENT VI-COMPLETION CERTIFICATE
ii
TRANSPORTATION ECONOMIC ASSISTANCE AGREEMENT - RAIL
Agreement No. 4994-11-71
RAIL SPUR TRACK - TEA GRANT
THIS AGREEMENT is made and entered into this day of
2017 by and between the City of Oshkosh, a
municipal corporation ( "Municipality" ) , and Wisconsin Department
of Transportation ( "WisDOT" ) .
ARTICLE 1.0 DEFINITIONS
As used in this Agreement and also, unless otherwise more
particularly defined, in other instruments referred to herein:
a. "Operator" means Wisconsin & Southern Railroad, L.L.C.
b. "Municipality" means the City of Oshkosh, Wisconsin.
C . "WisDOT" or "Department" means the Wisconsin Department of
Transportation.
d. "FRA" means the Federal Railroad Administration of the
United States Department of Transportation.
e . "STB" means the Surface Transportation Board or its
successors, if any.
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f . "Industry" means Watco Transloading, L.L.C. .
g. "Improved Property" means the rails, ties, ballast, track
material , switches, culverts, ramps and walkways acquired,
used or installed with the proceeds of this Agreement .
h. "Municipality Land" means the corridor of real estate owned
by Municipality upon which the project facility is located
in the City of Oshkosh, Wisconsin, and more fully described
in Attachment II .
i . "Person" means an individual , a partnership, an association,
and bodies politic or corporate .
j . "Project Facility" means the industrial spur track
constructed under this Agreement using Improved Property.
k. "RHS" means the Railroads & Harbors Section of WisDOT.
1 . "Industry Track Agreement" means the agreement by and
between the Operator and Municipality or Industry, or both,
governing the provision of rail service over and the
maintenance of the Project Facility.
2
M. "Facility Use Agreement" means the agreement by and between
Municipality and Industry setting forth the terms and
conditions under which Industry is allowed to use the
Project Facility.
n. "Direct job (s) " means the number of eligible jobs directly
associated with the economic development project and listed
on the application, as reviewed and approved by WisDOT under
TRANS 510 .
ARTICLE 2.0 THE APPROVED PROJECT
Section 2.1 General Description
Municipality shall construct the Project Facility on
Municipality Land. The Project Facility is described in
Attachment I, which is attached hereto and incorporated herein.
Construction of the Project Facility shall be completed no later
than December 31, 2017 .
Section 2.2 Specific Description
The Project Facility shall be constructed according to the
plans and specifications set forth in Attachment II titled
Description of Construction Work to be Performed, which is
attached hereto and incorporated herein as of the date Attachment
II is accepted in writing by RHS .
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Section 2.3 Direct Job Guarantee
Municipality agrees to comply with the criteria established
in the Transportation Economic Assistance Jobs Guarantee which is
attached hereto and incorporated herein as Attachment V.
ARTICLE 3.0 PROJECT FINANCES
Section 3.1 Assistance Amount
(a) In consideration of work performed by Municipality as
set forth under this Agreement, WisDOT shall reimburse
Municipality an amount equal to fifty percent (500) of actual
allowable Project Facility costs . The amount to be reimbursed to
Municipality shall in no event exceed One Million Eight Thousand
Two Hundred Sixty-Six Dollars ($1, 008, 266) .
(b) The assistance amount and the project budget are based
upon an engineer ' s estimate provided with the assistance
application. In the event accepted bids or actual allowable costs
for work and materials are for amounts less than shown in the
project budget, the corresponding budget item shall be
automatically reduced by the amount (s) the accepted bids are less
than the amounts set forth in Section 3 . 1 (a) and Section 3 . 3 and
the funds from the reduction shall be placed into the contingency
fund. This reduction in the assistance amount, if any, shall be
effective without compliance with Section 10 . 5 herein.
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Section 3.2 Required Match Share
In consideration of the assistance provided by WisDOT,
Municipality shall perform the work set forth under this
Agreement and provide an amount equal to no less than fifty
percent (50%) of actual allowable project costs . The amount to be
provided by Municipality for the entire project is estimated to
equal One Million Eight Thousand Two Hundred Sixty-Six Dollars
($1, 008, 266) .
Section 3.3 Project Budget
The project budget is set forth in Attachment I titled
Project Budget which is hereby made a part of this Agreement .
Section 3.4 Payment of Assistance Amounts
Payment of assistance amounts by WisDOT to Municipality
shall be governed by the terms and conditions of Attachment III
titled Project Operations, Accounts, Reports, and Payments which
is attached hereto and incorporated herein.
ARTICLE 4.0 PROJECT MANAGEMENT
Municipality shall appoint a Project Manager to oversee all
aspects of this project . Project Manager shall qualify under
Section 1 . 2 (a) of Attachment III and shall carry out the duties
and responsibilities identified in Section 1 . 2 (b) of Attachment
III .
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ARTICLE 5.0 PROJECT FACILITY OPERATION
Section 5.1 Written Agreements
Municipality has entered into the following written
agreement (s) with appropriate parties to assure its ability to
comply with the requirements of this Agreement . These agreements
shall be submitted by Municipality for RHS acceptance prior to
the execution of this Agreement . Assistance funds shall not be
disbursed by RHS unless its acceptance of these agreements is
given.
(a) Municipality shall enter into a Facility Use Agreement
with Industry or Operator, or both.
(b) Municipality shall provide an Industry Track Agreement
with Operator governing the provision of rail freight service
over and the maintenance of the Project Facility. In the event
the Industry Track Agreement is by and between Industry and
Operator, Municipality shall incorporate the Industry Track
Agreement into its Facility Use Agreement with Industry.
(d) Municipality shall provide to RHS and obtain from RHS
its written approval of the request for bid (s) to be issued for
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construction of the Project Facility. Such request for bid (s (
shall comply with Wis . Stat . § 85 . 077 .
Section 5.2 Maintenance of Project Facility
Municipality shall perform, or arrange for performance of,
all maintenance of the Project Facility, the road bed of the
Project Facility, drainage ways and any structures necessary for
the safe operation of railroad service as determined by Operator
or FRA, or both.
Section 5.3 Project Facility Use
(a) A condition of default for failure to use may be
declared by WisDOT pursuant to Section 7 . 1 upon occurrence of any
one or more of the following events :
(i) Industry renders its loading docks or track side
facilities unfit for use or ceases its operation of Project
Facility.
(ii) Industry files for protection under bankruptcy
laws .
(iii) Operator abandons the line haul track to which
the Project Facility is connected.
(iv) Operator ceases operation of line haul track
serving the Project Facility.
(v) The Project Facility is rendered unfit for
railroad freight service by Municipality, Industry, or
Operator.
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(b) Municipality shall provide to RHS not later than January
20 of each year a report of the number of loaded railcars shipped
and of the number of loaded railcars received on the Project
Facility by Industry. Municipality shall arrange for access by
RHS or its authorized agent to examine waybill, demurrage, or
other appropriate records for purposes of validating reported car
counts .
ARTICLE 6.0 PROJECT PROPERTY SECURITY, LIENS AND SALE
Section 6.1 Security for Borrowing
(a) Municipality shall not itself nor allow Industry or
Operator to use the value of the Improved Property acquired or
used for this project as security or collateral for any loan or
other borrowing.
(b) Municipality shall contractually prohibit Industry from
using Municipality land as security or collateral for any loan or
other borrowing which is not recorded in the Office of Register
of Deeds of Winnebago County on the date of execution of this
Agreement .
Section 6.2 Liens Against Improved Property
(a) The terms, provisions and conditions of this Agreement
create a first priority lien in favor of WisDOT on the material
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purchased in whole or in part with the proceeds of this Agreement
beginning with acceptance of delivery and continuing for the
duration of their placement on Industry land.
(b) Municipality shall cause a legally sufficient notice of
this lien to be recorded in the Office of Register of Deeds of
Winnebago County and the Wisconsin Department of Financial
Institutions, shall notify RHS when recording is accomplished.
Said notice shall be removed from the record only upon written
waiver of lien by WisDOT. WisDOT shall remove said lien within
five days after the expiration of this Agreement .
(c) Except for the liens authorized by Sections 6 . 2 (a) and
6 . 2 (b) , Municipality shall not directly or indirectly create,
incur, assume, or suffer to exist any mortgage, pledge, lien,
charge, encumbrance, or other security interest or claim on or
with respect to the Improved Property or any interest therein not
in existence on the date of execution of this Agreement .
Municipality shall promptly require Industry to take such action
as may be necessary to duly discharge any such mortgage, pledge,
lien, charge, encumbrance, security interest, or claim against
Improved Property not placed by Municipality if the same shall
arise at any time .
Section 6.3 Sale of Improved Property or Municipal Land
Sale of the Improved Property or Municipality Land, or both,
without the written approval of RHS shall, at WisDOT ' s option,
9
require Municipality to immediately repay to WisDOT an amount
equal to the amount actually reimbursed by WisDOT to Municipality
pursuant to Article 3 . 0 and Attachment III .
ARTICLE 7.0 DEFAULT AND TERMINATION
Section 7.1 Declaration of Default
A condition of default exists under this Agreement when
either party to this Agreement fails to abide by or perform
according to any one or more of its terms and conditions . A
declaration of default of this Agreement shall be made in writing
and delivered to the alleged defaulting party by certified mail
sent to the address shown in Section 10 . 2 . The letter shall
identify the action or inaction constituting the default and
reference the portion of the Agreement under which the default
occurs .
Section 7.2 Termination for Default
In the event of any substantial failure on the part of
either party to perform its obligations under the terms of this
Agreement, including but not limited to, transmittal of scheduled
contractual payments under this Agreement, the other party shall
have the right to give immediate notice of default and, at its
10
option, after first giving twenty (20) days written notice
thereof by certified mail to the party in default and
notwithstanding any waiver by the party giving notice of any
prior breach thereof, to terminate this Agreement, and the
exercise of such right shall not impair any other rights of the
party giving notice under this Agreement or any rights of action
against the defaulting party for the recovery of damages .
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Section 7.3 Removal of a Condition of Default
WisDOT or Municipality shall have thirty (30) calendar days
from written notification of the declaration of default to remove
or remedy the cause of the default . This remedy period may be
waived by the party declared in default . Correction by
Municipality shall be completed and ready for RHS verification
within the thirty (30) day period. Upon written petition by
Municipality, RHS may extend the period for removal of a default
condition. Municipality shall be notified of satisfactory
correction in writing.
Section 7.4 Expenses of Termination
Municipality shall itself and shall require Industry and
Operator to mitigate the expenses of termination to the greatest
extent possible, and shall pay those that do occur if default is
caused by Municipality and shall require Industry to pay those
that do occur if default is caused by Industry.
Section 7.5 Force Majeure
The parties hereto will be excused from performance of any
of their respective obligations hereunder, for the duration of
any interruption occasioned by any event beyond their respective
control (not due to their own fault or actions) , which shall
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include, without limitation: Acts of God; strikes or other labor
troubles or other causes beyond the reasonable control of the
parties; interruption of service caused by accidents, explosions,
fires, vandalism, or malicious mischief .
ARTICLE 8.0 REPRESENTATIONS AND WARRANTS
Section 8.1 WisDOT
WisDOT represents and warrants that it has the power and
authority to enter into this Agreement and to carry out its
obligations under this Agreement .
Section 8.2 Municipality
Municipality represents and warrants that it has the power
and authority to enter into this Agreement and to carry out its
obligations under this Agreement .
ARTICLE 9.0 HOLD HARMLESS
To the extent permitted by law, Municipality shall save and
hold WisDOT, its officers, employees and agents harmless from and
against all liability, damage, loss, claims, demands and actions
of any nature whatsoever which arise out of or are connected
with, or are claimed to arise out of or be connected with, any
act, omission or operation of the Municipality, Industry or
13
Operator, or the Municipality' s, Industry' s or Operator ' s agents,
servants, subcontractors or employees, or which arises out of or
is connected with, or is claimed to arise out of or be connected
with any accident or occurrence which happens or is alleged to
have happened, in or about a place where such operation, act or
omission is being performed or in the vicinity thereof (1) while
Operator or Industry is performing its work, or (2) during the
period this Agreement between WisDOT and Municipality is in
effect, or (3) while any of the Operator ' s or Industry' s
property, equipment, or personnel, is in or about such place or
the vicinity thereof by reason of or as a result of the
performance of Operator ' s or Industry' s operations including,
without limiting the applicability of the foregoing: all
liabilities, damages, losses, claims, demands and actions on
account of personal injury, death or property loss to WisDOT, its
officers, employees, agents, subcontractors, or frequenters, or
to any other person or legal entity whether based upon, or
claimed to be based upon contract, tort, or having its basis in
workers ' compensation under federal or state statutes or having
any other code, or statutory basis, or based upon administrative
laws or other provisions, or other liability of WisDOT,
Municipality, Industry or any other persons or entities, and
whether or not caused or claimed to have been caused by the
negligence, or other breach of duty by WisDOT, its officers,
employees, agents, subcontractors, or frequenters, Municipality,
its officers, employees, agents, subcontractors, or frequenters,
14
or Industry, its officers, employees, agents, subcontractors or
frequenters, or any other person or legal entity. Without
limiting the applicability of the foregoing, the liability,
damage, loss, claims, demands and actions indemnified against
shall include all liability, damage, loss, claims, demands and
actions for trademark, copyright or patent infringement, for
unfair competition or infringement of any so-called "intangible"
property right, for defamation, false arrest, malicious
prosecution or any other infringement of personal or property
rights of any kind whatsoever.
ARTICLE 10.0 GENERAL CONDITIONS
Section 10.1 Choice of Law
This Agreement shall be interpreted in accordance with the
statutes and laws of the United States of America and the State
of Wisconsin.
Interpretation may be had in any court of record of the
County of Winnebago.
Section 10.2 Notice
(a) Any notice required or permitted under this Agreement
shall be personally served or mailed by certified United States
mail, return receipt requested, postage prepaid, to the following
addressed persons at the following addresses and to such other
15
persons and addresses as the following persons shall direct by
notice pursuant to this Section:
Chief, Railroads and Harbors Section
Wisconsin Dept . of Transportation
P.O. Box 7914
Room 701
Madison, WI 53707-7914
City Clerk
City of Oshkosh
215 Church Avenue
P.O. Box 1130
Oshkosh, WI 54903-1130
(b) A copy of any notice provided under Section 10 . 2 (a)
above shall also be delivered to the following persons by first-
class mail, postage prepaid:
General Manager
Oshkosh Corporation
2307 Oregon Street
Oshkosh, WI 54902
General Manager
Wisconsin & Southern Railroad, LLC
1890 E . Johnson Street
Madison, WI 53704
Section 10.3 Transfer of Rights Under This Agreement
This Agreement shall be binding upon and inure to the
benefit of the parties hereto. Operator ' s or Municipality' s or
Industry' s rights hereunder shall not be assignable whether by
way of assignment, sublease, license or otherwise, directly or
indirectly. Transfer of rights cannot be assigned without WisDOT
prior review and written approval . Approval will not be
unreasonably withheld.
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Section 10.4 Severability
If any term, covenant, condition or provision (or part
thereof) of this Agreement, or the application thereof to any
party or circumstance, shall at any time or to any extent be held
to be invalid or unenforceable, the remainder of this Agreement,
or the application of such term or provision, or remainder
thereof, to parties or circumstances other than those as to which
it is held to be invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provision of this
Agreement shall be valid and be enforced to the fullest extent
permitted by law.
Section 10.5 Amendment, Consents and Approvals
(a) No term or provision of this Agreement, or any of its
attachments to or any of the agreements subject to WisDOT ' s
written approval , may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by
both parties to this Agreement .
(b) Consents and approvals required under this Agreement
and interpretation of this Agreement may be made or granted by
letter from one party to the other party hereunder or by an
exchange of letters between the parties .
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Section 10.6 Officials
(a) Officials authorized to execute amendments or
modifications to this Agreement on behalf of WisDOT are the
Secretary of Transportation, or the Deputy Secretary, or the
Administrator of the Division of Transportation Assistance or the
Chief of the Railroads & Harbors Section.
(b) Officials authorized to execute amendments or
modifications to this Agreement on behalf of the Municipality are
its City Manager and its City Clerk.
Section 10.7 Handicapped
No otherwise qualified handicapped individual in the United
States, as defined in Section 706 (7) of Title 29 USC, and
subchapter II of Chapter 111, Wis . Stats . , shall solely by reason
of the individual ' s handicap, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving benefits under this
Agreement .
Section 10.8 Environmental Protection
(a) Municipality agrees to conduct work under this
Agreement in compliance with all applicable environmental
requirements . Municipality will use WisDOT environmental
18
guidance and forms to document the effects the proposal will have
on the quality of the human environment .
1 . A Programmatic Environmental Report (PER) will be
completed for all projects unless otherwise determined by
RHS . The Programmatic Environmental Report shall include
the results of coordination with appropriate agencies having
jurisdiction over project-affected resources and must
include, at a minimum, the results of coordination with the
Wisconsin Department of Natural Resources (DNR) and the
State Historical Society (SHS) .
2 . Environmental Impact Statements (EIS) and
Environmental Assessments (EA) shall not be covered by this
contract . If an EIS or EA is required, additional contract
language will be required.
(b) Municipality agrees to consider both beneficial and
adverse effects and accurately report any proposed mitigation
required as a result of coordination with other agencies and the
public .
(c) Approved projects shall be conducted in compliance with
the requirements of all applicable environmental requirements .
(d) Municipality certifies that no contaminated properties
will be acquired for development of proposed facilities .
(e) Municipality stipulates that it will notify WisDOT as
soon as it or any subcontractor receives any communication
indicating that any facility, which will be utilized or improved
19
as part of an approved project, is under consideration to be
included on any contaminated properties list .
(f) No publicly-owned land from a public park, recreation
area, or wildlife and waterfowl refuge of national, state, or
local significance as determined by the federal , state, or local
officials having jurisdiction thereof, or any land from a
historic site of national , state, or local significance as so
determined by such officials, may be used for the Project
Facility without the prior concurrence of the Administrator of
the EPA and the State Historical Preservation Officer.
Section 10.9 Prohibited Interests
(a) Conflicts of Interest :
(1) Neither Municipality, Industry nor Operator, nor
any of their subcontractors shall enter into any contract,
subcontract, or agreement in connection with the project or
any property included or planned to be included in the
Project Facility in which any director, officer or employee
of Municipality during his tenure or for one (1) year
thereafter has any interest, direct or indirect except as
permitted under Sec . 946 . 13 (2) , Wis . Stats . (1995-1996) .
(2) Municipality and Industry shall insert in all
agreements entered into by it in connection with the Project
Facility, the following provision:
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"No director, officer, or employee of the
Municipality, during their tenure or for one (1)
year thereafter shall have any interest, direct or
indirect, in this contract or the proceeds thereof
except as permitted under Sec . 946 . 13 (2) , Wis .
Stats . (1995-1996) . "
(3) No subcontractor of Municipality or Industry may
enter into any contract, subcontract or other arrangements
which may affect the activities for which assistance is
available under this Agreement if any director, officer, any
key salaried employee or official, or any member of the
immediate family of one of the foregoing has any material
interest in this Agreement .
(4) The provisions of this subsection shall not be
applicable to any agreement between Municipality or Industry
and its fiscal depositories or to any agreement for utility
services for which rates are fixed by government regulation.
(b) No member of or delegate to Congress shall be admitted
to any share of any benefit that may arise from this Agreement,
but this subsection shall not restrict the making of any contract
with a corporation for the general benefit of such corporation.
Section 10.10 Non-Discrimination
(a)
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i . In connection with the performance of work under
this Agreement, Municipality agrees not to discriminate
against any employee or applicant for employment because of
age, race, religion, color, handicap, sex, physical
condition, developmental disability as defined in
s . 51 . 01 (5) , Wis . Stats . , sexual orientation or national
origin. This provision shall include, but not be limited to,
the following: employment; upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. Except
with respect to sexual orientation, the contractor further
agrees to take affirmative action to ensure equal employment
opportunities . Municipality agrees to post in conspicuous
places, available for employees and applicants for
employment notices setting forth the provisions of the
nondiscrimination clause .
ii . Contracts of $10, 000 or more require the submission
of a written affirmative action plan within 15 days after
notification of the contract award. Municipality shall
require its or Industry' s construction subcontractor to
submit an affirmative action plan to WisDOT or Municipality
within 15 days after notification of the award of the
contract . If construction subcontractor has an annual work
force of less than 10 employees, it is excluded from this
22
requirement; however, Municipality must state this fact in
writing to WisDOT.
(b) Municipality shall comply with the following laws,
policies, regulations, and pertinent directions as may be
applicable and will require their subcontractors through
contractual agreement to similarly comply:
i . Title VI of the Civil Rights Act of 1964 , 78
Stats . 252 , 42 U. S .C. 2000d et seq.
ii . Subchapter II of Chapter 111, Wis . Stats .
iii . Section 16 . 765, Wis . Stats .
(c) Municipality, in the procurement process, shall not
discriminate against minority owned or operated firms qualified
to bid and perform on contracts, subcontracts, or materials
procurement connected with the work performed under this
Agreement .
Section 10.11 Entire Agreement
This Agreement and the attachment (s) hereto contain the
entire agreement of the parties and supersede any and all prior
agreements or oral understandings between the parties .
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers on the
date and year designated in this Agreement .
CITY OF OSHKOSH
WINNEBAGO COUNTY, WISCONSIN
Witness : By:
Mark Rohloff, City Manager
Witness : By:
Pamela R. Ubrig, City Clerk
WISCONSIN DEPARTMENT OF
TRANSPORTATION
Witness : By:
David M. Simon, P.E .
Chief of Railroads & Harbors
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TEA-RAIL
Agreement No. 4994-11-71
ATTACHMENT I- PROJECT BUDGET
1 . 0 Project : Rail Spur Track - TEA Grant
This budget is for construction of an industrial rail spur
approximately 2900 feet in length and a connection to state-
owned track in the vicinity of the City of Oshkosh.
2 . 0 Budget Line Items
Item Amount
2 . 1 Land - $ 67, 600
2 . 2 Construction Work -
2 . 3 Engineering and Administration
2 .4 Contingency
Total $2, 016, 533 .
3 . 0 Funding Source Total Project
3 . 1 WisDOT 50% $1, 008, 266 .
3 . 2 Local : 50% $1 , 008 , 266 .
Total Project $2, 016, 532 .
4 . 0 Use of Contingency
The item identified as contingencies included in the overall
project budget may only be expended when specifically
authorized by RHS in writing.
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TEA-RAIL
Agreement No. 4994-11-71
ATTACHMENT II-DESCRIPTION OF CONSTRUCTION WORK TO
BE PERFORMED
1 . 0 Project Description
The construction work shall consist of the work set forth in
the bid proposal accepted by Municipality, and the work
proposal, if any, by the Operator and accepted by
Municipality, and the project design and management work
performed by Municipality or its Engineer.
2 . 0 Changes to Specifications
The specifications outlined in Part 4 . 0 of this attachment
shall be met under the construction project . Any variance
from these specifications shall be requested in writing to
RHS . Approval of a variance shall be issued in writing to
the Municipality and the Operator, prior to the terms of the
variance being effective and any costs incurred being
allowable for reimbursement under this Agreement .
3 . 0 Work Schedule and Inspections
3 . 1 This Agreement covers the work to be accomplished under
the entire project . The timetable for completing the
project may be extended upon mutual agreement of WisDOT
and Municipality, provided however that the total amount
of grant expenditures will not be increased by reason of
such extension of time . The project shall be completed
by December 31, 2017 .
3 . 2 Progress Inspection Procedure
In addition to inspections conducted by Municipality,
WisDOT may conduct its own project inspections .
3 . 3 Final Inspection and Acceptance
Final inspection shall be conducted within 30 days
following a request by the Municipality, unless snow cover
makes such inspection impractical . These final inspections
shall include the Operator, Contractor and RHS personnel .
Defects in workmanship discovered upon final inspection
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shall be deemed defective work. WisDOT shall not accept
project as complete until outstanding defects are corrected.
4 . 0 Project Specifications
The construction work performed shall meet the Wisconsin
Department of Transportation' s Specifications for Industrial
Track Construction, except as may be otherwise agreed to, in
writing, by WisDOT.
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TEA-RAIL
Agreement No. 4994-11-71
ATTACHMENT III- PROJECT OPERATIONS, ACCOUNTS AND
REPORTS
1 . 0 Project Performance and Management
1 . 1 Method of Performance
Municipality shall appoint a qualified project manager
to plan, direct and supervise the performance of
Operator and Construction Contractor in the performance
of the construction work accomplished under this
Agreement and the performance of any subcontractors .
1 . 2 Project Manager
(a) Designation and Qualification - The Project Manager
must be qualified in all phases of work to be performed
under this Agreement . Before any work is started, the
Municipality shall identify the Project Manager by name and
provide a statement of qualifications of the Project Manager
to RHS . RHS shall have the right to accept or reject the use
of the selected Project Manager or any subsequent Project
Manager on this project . RHS shall review and accept or
reject the contract, if any, between the Municipality and
Project Manager.
(b) Responsibilities -
(1) The Project Manager is required to perform
inspection of the work, daily if necessary, to
assure that the work program is performed in
compliance with the terms of this Agreement .
(2) The Project Manager shall document both the
quantity and quality of all work performed whether
by the Operator ' s own forces or a Construction
Contractor or a subcontractor. Documentation shall
be made in a manner and using forms supplied or
approved by WisDOT.
(3) The Project Manager shall be responsible for
the preparation of all progress reports, invoices
for reimbursement, requests for change orders,
variances or amendments affecting the project scope
of work or funding.
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(4) The Project Manager shall retain all project
documents (vendor invoices, time sheets,
specifications, etc . ) at a project office . Said
documents shall be made accessible to RHS or its
representative during normal business hours .
(5) The Project Manager shall be responsible for
preparation and revision of schedules, worker
productivity, and inspecting material .
2 . 0 Fiscal Control
2 . 1 Financial Management, Audit, and Records
(a) Municipality financial management and records
systems shall include records and procedures for determining
the allowability of costs incurred on the approved project .
(b) Municipality shall maintain and shall ensure that
each recipient of funds under this Agreement, except funds
received under a competitive bid process, whether in the
form of contracts, subcontracts or other arrangements,
maintains the following until the expiration of three years
after the date of the submission and acceptance of the final
close out accounting which shall include :
(1) Records that identify the sources and
applications of funds for the approved project or
tasks and contain information pertaining to
financial assistance awards, draw downs,
obligations, unobligated balances, assets,
liabilities, outlays, and income;
(2) Supporting source documents;
(3) All documentation underlying the preparation of
the financial reports; and
(4) All accounting documents of Municipality
pertaining to the approved projects or tasks shall
be clearly identified and readily accessible to
WisDOT and its designee . Municipality shall impose
this requirement upon each of its contractors and
ensure that it is imposed on each subcontractor.
(c) Municipality and its contractor and subcontractors
shall make available to the auditors of WisDOT the records
of revenues and costs related to this Agreement . All such
records will
be kept for a period of at least three (3) years after the
issuance of final inspection and acceptance report by RHS,
and any such records that are the subject of an auditing
dispute shall be kept for the term of the dispute .
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Municipality shall allow inspection by the authorized agents
of WisDOT of the above described records and similar records
of its subcontractor (s) . Inspections shall be made during
regular business hours and upon reasonable notice .
2 . 2 Allowable Costs
(a) Allowable costs of this project may only be
reimbursed under this Agreement after execution of this
Agreement .
(b) Construction costs incurred for this project are not
allowable for reimbursement under this Agreement if they are
incurred prior to the execution of this Agreement unless
specifically authorized in writing by WisDOT to be incurred
prior to execution of this Agreement .
(c) The costs incurred by Municipality to carry out the
project are allowable if they are covered by this Agreement
or a contract approved by RHS in accordance with this
Agreement .
2 . 3 Defective Work
If RHS determines that any material or workmanship is
deficient, Municipality, without reimbursement under this
Agreement, shall promptly require the replacement of
materials or correction of workmanship necessary to cure the
deficiency.
2 .4 Acceptance, Storage and Protection of Materials
All materials delivered to Municipality or its
contractor and subcontractors for use in performing the work
set forth in Attachment II shall be inspected and accounted
for upon delivery and protected from theft or damage . The
Project Manager shall conduct inspections and shall reject
defective material prior to shipment by the supplier or at
the time of delivery to the project stockpile or work site
or as soon thereafter as defects are discovered. Replacement
of damaged or stolen or defective material is not an
eligible cost under this Agreement . Damage or theft of
material is not an acceptable reason for non-performance of
Municipality' s obligations under this Agreement .
2 . 5 Use of Contingency Funds
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Contingency funds may only be expended when expenditure
is authorized by RHS . The request for use of contingency
funds shall be made in writing to RHS . Written approval
shall be obtained by Municipality or its contractor and
subcontractor prior to release of contingency funds . Verbal
approval may be given by RHS, but only after written request
has been received. The verbal approval shall be verified by
follow-up written approval .
3 . 0 Accounting
3 . 1 Financial Record Keeping and Pre-Award Audit
Municipality shall establish and maintain a separate set
of accounts showing receipts and disbursements of all funds
provided under this Agreement and all other funds accruing
to or received on account of the project and shall require
contractor and subcontractors to maintain a like set of
accounts . This system of accounts shall permit the clear
differentiation of charges to the project from expenditures
made by Municipality for non-project work. Contractor and
subcontractor ' s awarded contracts on the basis of sealed bid
are exempt from this requirement .
3 . 2 Interim and Project Close-out Audits
(a) All costs charged to this project shall be
supported by documents evidencing in detail the nature and
propriety of the charges . All accounting documents
pertaining to the project shall be clearly identified and
readily accessible to WisDOT. Copies of all vendor invoices
shall be submitted to the project inspector when
reimbursement is being claimed.
(b) WisDOT may conduct an audit of project costs at
such times during the progress of project work as it deems
appropriate .
(c) WisDOT may conduct a project close-out audit
following completion of final project inspection and
acceptance of project work.
4 . 0 Scheduling and Reporting
4 . 1 Construction Scheduling
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Prior to starting construction on the project,
Municipality shall provide RHS with a schedule of
anticipated work progress . The schedule shall be updated as
needed or reported as needing no change and included with
the invoice for payment .
4 . 2 Immediate Reporting
Municipality, Industry or Operator shall report to RHS
immediately in writing whenever there is any change in
conditions or in State or Local law, or any other event,
that may significantly affect : (a) Municipality' s, or
Industry' s, or Operator ' s ability to perform the projects or
tasks in accordance with the provisions of this Agreement,
or (b) Municipality' s continuing eligibility for financial
assistance under this Agreement .
4 . 3 Routine Reporting
(a) If during any month Operator or Contractor and
subcontractors has performed work on the approved project, a
performance report shall be filed with the invoice for
payment and include the following information:
(1) the costs incurred to the end of the month and
the estimated costs to complete the project;
(2) for work performed other than under a fixed
price contract, unit costs of materials and labor
charged to the project for the period covered by the
report;
(3) the percentage of completion of each major
element of the project and the estimated date of its
completion;
(4) a narrative description of any difficulties or
delays encountered, including an explanation of any cost
overruns or high unit costs, and any corrective action
taken or to be taken;
(5) an explanation of any anticipated difficulties
or delays until the end of the project and the action to
be taken in an effort to avoid such difficulties or
delays; and
(6) any additional narrative necessary to explain
any major change that has been made during the month to
the monthly schedule of work.
(b) Financial reports shall be on the same basis as
Municipality' s or Construction Contractor ' s accounting
records .
5 . 0 Payment of Assistance Amounts
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5 . 1 Payment Schedule
(a) Invoices for payment of eligible project costs may
be submitted not more frequently than once per month and
no less frequently than once per quarter.
(b) Original invoices shall be submitted to Chief,
Railroads & Harbors Section, Wisconsin Department of
Transportation, P.O. Box 7914 , Madison, WI 53707 .
(c) Invoices and supporting documentation shall be in a
format acceptable to WisDOT.
5 . 2 Payment Process
(a) Invoice Submittal
(1) Municipality shall prepare and submit original
invoices to RHS (see 5 . 1 (b) ) along with any
supporting documentation.
(2) RHS shall review the submitted invoice for
payment and shall discuss with Municipality or its
contractor and subcontractors any exception RHS may
take to the amounts billed.
(b) Payment
(1) Municipality shall invoice only for work
completed or materials installed.
(2) Upon approval of the invoice by RHS, WisDOT
shall pay to Municipality the amounts due, less any
amounts subject to exceptions .
(3) Municipality shall have paid Vendor or
Contractor invoices or shall pay them immediately
following receipt of WisDOT ' s payment .
5 . 3 Payment Amount
(a) WisDOT shall pay to Municipality 50% of each
invoiced amount, less exceptions under Section 5 .4 of
this Attachment .
(b) WisDOT shall pay to Municipality the final billing
amount following receipt from Municipality of the TEA
PROJECT COMPLETION CERTIFICATE (Attachment VI) and
WisDOT ' s final inspection and acceptance of the work
performed.
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5 .4 Payment Delays
(a) Should any element of cost billed on any invoice be
questioned as to its allowability or accuracy, WisDOT
may except that cost from payment until the eligibility
of the cost item(s) is determined and shall pay the
remainder of the invoiced amount per schedule .
(b) Payment shall be made to Municipality only for work
already completed or for materials installed. Unless
billed under a fixed price contract, contractor' s and
Operator ' s invoices for labor and equipment costs shall
be verified by use of time cards and equipment use logs .
(c) Payment by WisDOT of amounts which may become due
under this Agreement shall be made only following
Municipality' s full and complete compliance, to the
satisfaction of WisDOT, with Section 5 . 1 of the
Agreement .
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ATTACHMENT IV - EASEMENT
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ATTACHMENT V- TEA JOBS GUARANTEE
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ATTACHMENT VI
TEA PROJECT COMPLETION CERTIFICATE
Project No.: 4994-11-71
Project Name: Oshkosh Corporation - City of Oshkosh TEA
County: Winnebago County
Municipality: City of Oshkosh
Railroad: Wisconsin & Southern Railroad, L.L.C.
Name of Contractor:
Date Contract Work Completed:
I certify that the above listed project was completed in accordance with the contract. I further
certify that the above listed project was constructed substantially in accordance with the
approved plans and specifications, as may have been amended by contract change order.
Project Engineer Date
The above listed project appears to have been constructed in substantial conformance with the
approved plans and specifications, as may have been amended by the attached contract change
order.
WisDOT DTIM Date
Project Coordinator
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