HomeMy WebLinkAboutWatco Transloading, LLC & Oshkosh/Track Agreement WATCO TERMINAL & PORT
SERVICES
TRACK LEASE AGREEMENT
THIS LEASE dated as of this day of I/ k- 2017 between the CITY OF
OSHKOSH, 215 Church Avenue, Oshkosh, Wisconsin 54903 ("Lessor"), and
WATCO TRANSLOADING,LLC also referred to herein as,WATCO TERMINAL &
PORT SERVICES,315 West 3rd Street,Pittsburg,Kansas 66762 ("Lessee").
For and in consideration of the mutual benefits and obligations set forth in this Lease,
the Parties agree to be bound as follows:
1. LEASED PROPERTY.
Lessor hereby leases to Lessee the track ("Track")in its entirety, and the adjacent
property ("Property") (sometimes collectively referred to as the "Leased
Premises"). The Track includes Track A and Track B,located within the Southwest
Industrial Park, owned by the City. Track A and Track B consists of approximately
3,000 track feet in length, as more particularly described in Exhibit A of this
Agreement. The Leased Premises includes the Tracks, the driveway to the Leased
Property, and the service road and turnarounds along the Tracks, as more
particularly described in Exhibit A of this Agreement.
2. TERM. JJ
The term of this Lease ("Lease Term") shall commence at JVJ1!14_g2:01 a.m.
onJ 11"Commencement Date") and shall last for a period of twenty five
110—
years ending att�u �f�l�� a.m. on the ("Termination Date"). Thereafter the
Lease will automatically renew annually unless earlier terminated by either party
with sixty (60) days written notice.
3. RENT.
Rent for the Leased Premises ("Rent"), shall be $1.00 per year for the duration of
the lease payable in advance of the Commencement Date. Lessee shall send all
payments to Lessor at the address specified by Lessor.
4. USE.
4.1 Lessee shall use the Leased Premises solely for a direct bulk transload
facility which includes a direct transfer between railcar and truck or a
conveyer line and covered storage, and for no other purpose("Use"),
without the prior written consent of Lessor.
4.2 Any land use activities and/or improvements to the site will need to comply
with the City of Oshkosh Municipal Code and the Covenants and Restrictions
regarding the City of Oshkosh Industrial Parks as well as applicable federal and
state laws. Approval of plans will occur via the City of Oshkosh Site Plan
Review process and paragraph IX of the Covenants and Restrictions regarding
the City of Oshkosh Industrial Parks document.
4.3 Neither Party shall allow the Leased Premises to be used by any other person
or firm without the prior written consent of the other Party,unless the use of the
premises is for a direct customer of the Lessee Customer use of the facility will be
under the direct supervision of Watco Terminal&Port Services.
4.4 Lessee shall, at its sole cost and expense, promptly comply with all
present and future laws, statutes, regulations, ordinances, orders, covenants,
restrictions, or decisions of any governmental authority or court of competent
jurisdiction affecting the Use and condition of the Leased Premises and any
equipment placed or used thereon and Lessee's operations and activities on
the Leased Premises ("Legal Requirements"). Lessee shall obtain all permits
required by any federal, state, municipal or other governmental entity
necessary for Lessee's Use of the Leased Premises as outlined in this Section.
4.5 Lessee shall not permit any obstruction over the Tracks less than the
statutory limit (as presently existing or as amended from time to time) or 23'0"
above top of rail, whichever is greater, or alongside thereof less than the
statutory limit or 8'6" from center of track, whichever is greater, with the
necessary additional clearances on curves,without the prior written approval of
Lessor and any public authority having jurisdiction.
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j 5. TAXES AND ASSESSMENTS.
jLessee is responsible for all taxes and assessments, such as Personal Property
Tax and Real Property Tax, (as presently charged or may be charged in the
future) associated with its Use of the Leased Premises. Lessee shall keep the
Leased Premises free and clear of any liens or judgments for unpaid taxes and
assessments for which Lessee is responsible.
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6. UTILITIES.
Lessee, at its sole cost and expense (including fees for permits and similar
documents), shall obtain all utility services required or desired by Lessee,
including the installation of meters and submeters if none exist. Lessee shall be
responsible for all charges for utilities consumed by, and supplied to,Lessee by
the provider thereof.
7. CONDITION OF PREMISES AND MAINTENANCE.
7.1 Prior to the Commencement Date,Lessor has provided copies of any
environmental reports, soil reports,or any other documents that the City is in
possession of to the Lessee,and Lessee acknowledges receipt of same.Lessee has
fully inspected and accepts the Leased Premises in "as is" condition. Lessor
makes no representations as to the condition, including any conditions identified
in the reports or other city documents, utility or fitness of the Premises for any
use. Lessee shall, at its expense, perform or arrange for
performance of all maintenance and repairs of the Leased
Premises, the road bed of the Leased Premises, drainage
ways and any structures necessary for the safe operation
of railroad service as determined by Operator or the
Federal Railroad Administration, or both. Lessee shall perform
all general maintenance including but not limited to grass cutting, snow removal,
access road maintenance and o t h e r repairs necessary to keep the Leased
Premises and Tracks in good order and in safe condition at Lessee's expense in
the boundary area shown in Exhibit A. Any additional repairs or maintenance
necessary, as a result of the Lessor's acts, negligence, regulatory non-compliance
or contractual breach, shall be performed by Lessor at the sole expense of the
Lessor.
7.2 All maintenance of the Tracks shall be to a minimum of Federal
j Railroad Administration Class II track standards.
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8. RIGHTS RESERVED BY THE CITY
The City reserves the right to access the Leased Premises to inspect or maintain
the public regional stormwater facility with a forty-eight hour notice. In an event
an emergency the city may access the site without notice.
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9. LIABILITY
Industry shall save and hold the Municipality and WisDOT, their 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 Industry or Operator, or Industry's or Operator's
agents, servants, subcontractors or employees, or which arise out of or are
connected with, or are 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 Industry 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 the
Municipality or WisDOT, their, 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 the Municipality or WisDOT, 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 the Municipality or WisDOT, their
officers, employees, agents, subcontractors, or frequenters, 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.
10. ENVIRONMENTAL COMPLIANCE.
10.1 Responsibility for environmental claims (as defined in section 9) as
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between the parties shall be borne as follows:
(a) Lessor shall be responsible for environmental claims arising
from: (a)environmental conditions existing on the leased premises prior
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to the date of this lease, and identified in the
environmental reports or (b)use of the leased premises by
lessor or its licensees or contractors from and after the date of this lease,
unless such environmental claims arise from lessee's negligence in which
event lessee shall be liable for its failure, or that of its licensees or
contractors, to comply with its obligations under this lease when such
failure is a contributing cause to such environmental claims.
(b) Lessee shall be responsible for environmental claims arising
from: (a) environmental conditions on the leased premises from and after
the date of this lease, any post-commencement date environmental
conditions shall be presumably attributed to lessee if such conditions were
not identified in the environmental reports or (b)the use of or presence
upon the leased premises by lessee, or its contractors, invitees or any
unauthorized third party of hazardous materials or substances; or (c)its
failure, or that of its licensees or contractors, to comply with its
obligations under this lease when such failure is a contributing cause to
such environmental claims.
(c) The parties hereto shall bear in proportionate shares responsibility
for environmental claims arising from the joint responsibility of lessor
and lessee
10.2 Except as otherwise provided the party which is responsible shall
release the other party from all responsibility for such environmental claims
and shall defend, indemnify, protect and save harmless the other party from
and against all such environmental claims.
10.3 The term "environmental claims" means any cleanup, response, removal
or remediation required by a governmental entity, related to any
environmental conditions affecting the air, soil, surface waters, ground
waters, streams, sediments and similar environmental conditions caused by,
resulting from, arising out of,or occurring in connection with this lease.
10.4 At the conclusion of the lease term, or upon termination of this lease
pursuant to section 12 hereof, lessee shall be responsible for the cost of a phase I
and phase ii environmental site assessment(s) of the leased premises consistent
with then current applicable ASTM standards, to be commissioned by and for
lessor concurrent with lessee's exit from the leased premises. Responsibility for
any environmental conditions identified by such lease term-end environmental
assessments shall be controlled by the terms of this section 9.
(a) Industry agrees to conduct work under this Agreement in compliance
with all applicable Wisconsin Environmental requirements. Industry will
complete a Wisconsin Department of Transportation Programmatic
Environmental Report and provide WisDOT with copies of approval
letters from the Wisconsin Department of Natural Resources, the
Wisconsin State Historical Society, or other state or federal agency who
may have reviewed this project for environmental reasons, prior to
execution of this agreement by WisDOT. This report and letters shall
become part of this agreement.
(b) Facilities or equipment shall not be acquired, constructed, or improved
as a part of the Project Facility unless such facilities or equipment are
designed and equipped to limit water and air pollution in accordance with
all applicable state and federal standards, statutes, and regulations.
(c) Operations shall be conducted in compliance with all the requirements
of Section 114 of the Clean Air Act,42 USC sec. 7414, and Section 308 of
the Federal Water Pollution Control Act, 33 USC 1318, and all applicable
regulations issued under said Acts.
(d)Industry certifies that no facilities which will be utilized or improved
as part of the Project Facility are listed on the Environmental Protection
Agency ("EPA") List of Violating Facilities ("List").
(e) Industry shall notify the Municipality as soon as it, the Operator or
any subcontractor receives any communication from the EPA indicating
that any facility which will be utilized or improved as part of the Project
Facility is under consideration to be listed on the EPA list.
11. INSURANCE.
Lessee shall maintain continuously in effect a policy of comprehensive
general liability insurance, including contractual liability. Such insurance shall be
in limits of not less than $5,000,000.00 combined single limit, bodily injury
and property damage liability each occurrence. Lessee shall furnish to Lessor
certificates evidencing such insurance in companies and form acceptable to
Lessor. Insurance is to be placed with insurers who have an A.M. Best rating of
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no less than A- and a Financial Size Category of no less than Class VI, and who
are authorized as an admitted insurance company in the state of Wisconsin. The
following must be named as additional insureds on Watco's Commercial General
Liability Certificate including the City of Oshkosh and its officers, council
members, agents, employees and authorized volunteers. The additional insured
coverage must be ISO form CG 2010 07 04 or its equivalent.
12. CONDEMNATION
Subject to Lessee's right to recover from Lessor an amount equal to the
depreciated value of the improvements that were placed on the Leased Premises
by Lessee with Lessor's consent, if all or any part of the Leased Premises shall be
acquired or taken under eminent domain proceedings,or transferred to a public
authority in lieu of such proceedings, Lessor may terminate this Lease as of the
date when possession is taken. Subject to the above, all damages awarded for
such taking shall belong to and be the property of Lessor and Lessee shall have
no claim against Lessor by reason of such taking or termination and shall not
have any claim or right to any portion of the amount that may be awarded or
paid to Lessor as a result of any such taking. In addition to the above, Lessee
may make claims against the condemning authority for moving expenses, loss of
fixtures, or other matters which do not affect the award otherwise payable to
Lessor so long as such claim does not reduce the award otherwise payable to
Lessor.
TERMINATION.
12.1 This Agreement is subject to termination before the expiration of the
original term or any extension term under the following circumstances:
(a) By mutual agreement of the parties, at any time.
(b) At the sole discretion of the City, if the Lessee materially fails to
perform any of the Lessee's obligations under the Agreement and
such failure is not cured within a reasonable time after the Lessee's
receipt of a written notice from the City.
(c) At the sole discretion of the Lessee, if the City materially fails to
perform any of the City's obligations under the Agreement and such
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failure is not cured within a reasonable time after receipt of a written
notice from the Lessee.
(d)
(e)In the event the Agreement is terminated, with or without cause, the
Lessee and the City shall each be obligated to take such actions as may be
reasonably necessary to ensure a smooth transition to the new Lessee.
13. NO WAIVER.
The waiver by any party of any breach by the other party of any term, covenant,
obligation or condition herein contained shall not be deemed to be a waiver of
any subsequent breach of the same or a waiver of any other term, covenant,
obligation or condition herein contained.
14. NOTICES.
Every notice, approval, consent, or other communication desired or required
under this Lease shall be effective only if the same shall be in writing and sent
postage prepaid by United States registered or certified mail (or a similar mail
service available at the time), directed to the other party at its address set forth
below, or such other address as either party may designate by notice given
from time to time in accordance with this Section.
Lessor:
City of Oshkosh
Attn: Director of Community Development
215 Church Avenue
Oshkosh,WI.54903
Lessee:
Watco Transloading,LLC
Attn: Senior Vice President Marketing& Sales
315 W. 3rd Street
Pittsburg,KS.66762
15. BINDING ON SUCCESSORS.
The covenants and agreements herein contained shall inure to the benefit of and
be binding upon the successors, heirs, personal representatives, and assigns of
the parties hereto, subject, however,to the provisions of Section 10 of this Lease.
16. ENTIRE AGREEMENT.
The entire agreement between Lessor and Lessee is set forth in this Lease and
there are no understandings, agreements, or representations of any kind between
the parties,verbal or otherwise, other than as set forth in this Lease. No change
or modification of any of the covenants, terms or provisions hereof shall be valid
unless in writing and signed by the parties hereto.
17. JOINT AND SEVERAL LIABILITIES.
If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sign this Lease as
Lessee, the liability of each individual, corporation, partnership or other
business association to perform all covenants, obligations or conditions
hereunder shall be deemed to be joint and several, and all notices,
payments and agreements given or made by, with or to any one of such
individuals, corporations, partnerships or other business associations shall be
deemed to have been given or made by, with or to all of them. In like manner, if
Lessee shall be a partnership or other business association, the members which
are,by virtue of state or federal law, subject to personal liability, the liability of
each such member shall be joint and several.
18. SEVERABILITY.
If any term, covenant, obligation or condition of this Lease or the application
thereof to any person or circumstance shall be held invalid or unenforceable to
any extent by a final judgment or award which shall not be subject to change
by appeal, then the remainder of this Lease or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby and each term,
covenant and condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law. Furthermore, each covenant, agreement,
obligation and other provision of this Lease is and shall be deemed and
construed as a separate and independent covenant of the party bound by,
undertaking or making the same, and not dependent on any other provision of
this Lease unless expressly so provided.
19. THIRD PARTY BENEFICIARY.
Nothing contained in this Lease shall be construed as to confer upon any other
party the rights of a third party beneficiary.
20. APPLICABLE LAW.
This Lease and the rights and obligations of the parties hereunder shall be
construed in accordance with the laws of the State of Wisconsin.
21. SURVIVAL.
Any covenant, obligation or liability which arose,may have arisen or was
incurred by either party hereto prior to the termination of this Lease shall survive
the termination of this Lease.
22. TERMINOLOGY.
As used in this Lease, the terms "Lessor," "Lessee" and "party" shall include the
subsidiaries, affiliates,directors,officers, agents and employees of Lessor and
Lessee.
23. EXHIBITS.
The provisions typed on this page, and/or the following pages, and any exhibit or
addendum to this Lease shall be deemed a part hereof.
24. FORCE MATEURE.
Subject to the terms and conditions of this Lease and specifically excluding the
obligation to pay Rent as provided for herein, if an event of force majeure has
occurred, the non-performing party shall be excused from further performance
or observance of its obligations under this Lease which are so affected for as
long as such circumstances prevail and such party continues to use its
reasonable efforts to recommence performance or observance as soon as
possible and to whatever extent possible without delay. The non-performing
party shall immediately notify the party to whom performance is due and
describe at a reasonable level of detail the circumstances causing such Event of
Default or delay.
IN WITNESS WHEREOF, the City of Oshkosh, Wisconsin, and Watco Transloading, LLC have
respectively caused this Agreement to be duly executed on this—I +—day of May,2017.
CITY OF OSHKOSH Watco Companies LLC
�,- � - -�
By: By:7
Mark Rohloff, City Manager erek Penner, ISVP Strategy &
Customer Integration
And....
Pamela R.Ubrig, �'Ci Clerk
And: 1 nom (1 k a Ynn
Trena Larson, Finance Director
Ap ved as to farm:
L n renson;°'C° Attorney
STATE OF WISCONSIN)
) ss.
WINNEBAGO COUNTY)
Personally came before me this day of ', 2017, the above named Derek
Penner, registered agent of Watco Companies LLC to me known to be the persons who
executed the foregoing instrument and acknowledged same as and for said company, by its
authority.
Notary Public,Winnebago Co my WI
My Commission Expires
STATE OF WISCONSIN)
) ss.
WINNEBAGO COUNTY)
TuAk
Personally came before me this 2V� day of 44-ay, 2017, the above named -Per&i' aVK
=; - o me known to be the persons who (J} tAanupr,
executed the foregoing instrument and acknowledged same as and for said company, by its %wwU, .l�t�r�Ca,
authority. GAI Clem av,,A
y--
"Ler, e,
Notary Public,Winnebago ounty,WI Fiviavic , 1�iiQ DC
My Commission Expires: K� 1
Exhibit A
Map of 2930 Global Parkway proposed site plan
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