HomeMy WebLinkAboutDiscovery Properties,LLC -Staging Property 2017CONSTRUCTION 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 Discovery Properties, LLC, a Wisconsin Limited Liability
Company (Discovery), with a principal address of 230 Ohio Street, Suite 200, Oshkosh,
Wisconsin 54902.
RECITALS
The following City -owned property ("Staging Property") is the subject of this
Agreement:
Part of Lots 1 and 2 in L. M. Miller's First Addition recorded
in the Winnebago County Register of Deeds Office, all being a
part of Block 26 in the Second Ward, located in the Northeast
1/4 of the Southwest 1/4, Section 24, Township 18 North, Range 16
East, City of Oshkosh, Winnebago County, Wisconsin being more
particularly described as follows:
Commencing at the Northwest corner of the Southwest 1/4, said
Section 24; thence South 00°-15'-31" East along the West line of
said Southwest 1/4, a distance of 23.88 feet; thence North 89°-56'-16"
East, a distance of 1,789.98 feet to the Northwest corner of Lot
A in G. Papendeik's Plat recorded in the Winnebago County Register
of Deeds Office; thence South 13°-24'-44" West along the West line of
Lots A, B and C of said G. Papendeik's Plat and the West line of said
Lot 1, a distance of 133.54 feet to the point of beginning; thence South
76°-52'-22" East, a distance of 100.00 to the Northerly extension of the
West line of the East 60 feet of Lot 3 of said L. M. Miller's First Addition;
thence South 13°-24'-44" West, along said Northerly extension, a
distance of 67.52 feet to the South line of said Lot 2; thence North
76°-35'-16" West along said South line, a distance of 100.00 feet to the
Southwest corner of said Lot 2; thence North 13°-24'-44" East along the
West line of said Lots 1 and 2, a distance of 67.02 feet to the point of
beginning.
A map of the Staging Property is attached as Exhibit A. The
Staging Property is identified as Lot 3 in a draft Certified Survey Map.
Discovery will construct residential garages and reconstruct parking areas on adjoining
property that it is leasing from the City and will purchase when the construction project is
complete. Discovery will use the Staging Property both for access to the construction project
area, as well as a staging area for materials and equipment used in the construction project. The
construction 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
May 4, 2017
benefit both the City and Discovery and form the underlying consideration for this Agreement.
Therefore, the City agrees to allow Discovery temporary use of the Staging Property pursuant to
the terms and conditions in this Agreement.
AGREEMENT
1. LICENSE. The City grants to Discovery a License to use the Staging Property.
Discovery accepts the License pursuant to the obligations described in this Agreement. The
details of the License and Discovery' agreements and obligations are as follows:
a. The License is temporary;
b. The License or the limited purpose of allowing ' access to adjoining property for
construction purposes, and for use as a staging area for Discovery's project which will
involve environmental remediation, construction of residential garages, and
reconstructing surface parking areas. The adjoining property is owned by the City and
leased by Discovery to allow construction while they are undertaking environmental
remediation;
c. The License applies to Discovery' employees, officers, agents, suppliers, and
subcontractors. However, Discovery is directly responsible to the City for all
actions/inactions on the Staging Property by employees, officers, agents, suppliers, and
subcontractors.
d. The License may be used for ingress and egress, and to otherwise provide access to the
construction project;
e. The License may be used for storage and use of construction equipment, supplies, and
material;
f. The License requires full cooperation and compliance with the City in establishing and
maintaining the use of the Staging Property;
g. The License requires Discovery to protect the City's Staging Property, including any
facilities and improvements. Discovery shall, at its expense, repair all damage and return
the Staging Property to its condition at the beginning of the License; and,
h. 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 Community Development (Director), or their
designee, shall have the sole discretion in determining the date Discovery's License expires. The
License will expire pursuant to any of the following events:
a. The License will expire on the date Discovery no longer remains involved as the
developer of the construction project. If the City is unclear of Discovery's
association with the construction project, it will provide Discovery with written notice
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of License expiration via first class mail and allow Discovery seven (7) calendar days
from the date of mailing to show cause why the License should not expire.
b. If Discovery remains involved as the developer of the construction project through its
completion, then the License will expire twenty (20) days after the Director
determines at their discretion that the construction project is complete, or has been
interrupted for an extended period of time, or has been abandoned.
c. The License will expire if Discovery materially breaches this Agreement, after the
Director provides Discovery with written notice of breach via first class mail and
allow Discovery seven (7) calendar days from the date of mailing to show cause why
the License should not expire.
d. The License will expire if Discovery fails to reasonably accommodate and minimize
the impact of its access and the Staging Property's use as a staging area on
neighboring properties, after the Director provides Discovery with written notice of
breach via first class mail and allow Discovery 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 public storm
water facilities, or surface water runoff after the Director provides Discovery with
written notice of breach via first class mail and allow Discovery 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 STAGING PROPERTY: This Agreement allows/requires Discovery to use the
Property as follows:
a. A map of the boundaries within the Staging Property that Discovery will be allowed
to use is attached as Exhibit A, with the attached map fully incorporated into this
Agreement.
b. Discovery shall provide the City with acceptable pre -construction and post -
construction maps and written description of uses of the Staging Property. The
Staging 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 Staging Property remains in the same
condition. The Director will inspect the Staging Properly to ensure that it remains in
the same condition.
c. Discovery shall maintain a minimum fifteen (15) foot buffer zone from the south
property line, with that property line being the north wall of the building on that
adjoining property. Discovery will take all reasonable precautions to minimize the
noise near this adjoining building.
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d. Discovery shall take all reasonable and necessary actions to preserve the existing
condition of the surface of the Staging Property, as well as any vegetation on,
surrounding, and near the Staging Property.
e. Discovery' use of the Staging Property may include the location of construction
trailer, construction equipment, a materials trailer, construction materials, and other
items normally related to a staging area.
f. Discovery is responsible for fencing the area and posting all necessary signs. While
the City requires fencing and signage to prevent unauthorized persons to enter the
Staging Property, Discovery is solely responsible for the means and methods of
carrying out this obligation, and is solely responsible for all liabilities associated with
fencing and signage issues, as well as all responsibilities associated with their use of
the Staging Property.
g. Discovery shall obtain the approval from the Director of a site plan for the Staging
Property, which may include storage locations, fencing, and access. Discovery shall
not permit any waste or damage to the Staging Property.
h. Discovery shall maintain the Staging Property and keep the area in good condition
and repair and free of any litter, construction debris, and shall not allow litter, debris,
dust, or materials to blow away from the site.
Only materials and equipment used for the adjoining construction project shall be
allowed on the Staging Property.
j. Discovery shall take all reasonable measures to cooperate with surrounding property
owners in efforts to minimize adverse effects of Discovery' use of the Staging
Property.
k. Discovery shall remove all equipment, fencing, materials, debris, its hazardous
materials, and so forth from the Staging Property at the expiration of the License.
The City may take all reasonable actions to remove any object or condition from the
Staging Property related to the License which Discovery has failed to remove, and
shall be fully reimbursed by Discovery for these actions.
4. USE OF ADJOINING CITY RIGHT OF WAY: Discovery will access the Staging
Property via City streets, curb and gutter, terrace, and public sidewalk. The License is
contingent upon Discovery's protection of nearby City facilities such as streets, curb and
gutter, right of way terrace, and public sidewalks. Discovery 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. Discovery shall repair or replace all damaged City
property and facilities at the completion of the construction 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. Discovery shall keep the adjoining right of way free from equipment,
construction material, and debris. Discovery shall keep State Street and the adjoining
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sidewalk clean at all times, and shall not cause the artificial accumulation of snow and/or
ice on the street or public sidewalk. Discovery is responsible for keeping the public
sidewalk in safe condition for public use. Except for emergency safety concerns,
Discovery shall not block the street or public sidewalk for any reason without the explicit
permission of the Director. Discovery 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. Discovery 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 Discovery's
officers, employees, agents, suppliers, or subcontractors while acting within the scope of
their employment or service to Discovery. Discovery shall indemnify the City for any
costs or damages associated with the terms of this Agreement. Subject to any limitations
contained in Sec 893.80 and any similar statute, of the Wisconsin Statutes, the City
agrees to hold Discovery, 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. Discovery assumes all risk of the damage to or loss
of any person or of anything it places on the Staging Property. Discovery is responsible
for any injury to all persons and personal property related to this License. Discovery
accepts the property "as -is," and releases the City and waives any recovery against the
City for any loss arising out of or incident to Discovery' use of the Staging Property or
City right of way.
9. HAZARDOUS MATERIALS. Discovery 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
Staging Property. Excepted from the previous sentence are Hazardous Materials in the
vehicles, equipment, or materials that Discovery will use for the adjoining construction
project. Any discharge, leakage, or spillage of hazardous materials of any type under, on
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or over the Staging Property as a result of Discovery's 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. Discovery, at its sole cost and expense, shall undertake
all appropriate remediation on the Staging Property affected by its discharge, leakage, or
spillage of Hazardous Materials, whether owned by the City or any third party, to the
satisfaction of the City and any government body having jurisdiction over such event.
Discovery shall not be responsible for any Hazardous Materials on or under the Staging
Property, whether known or unknown, present as of the date of this Agreement.
10. INSURANCE. Discovery shall maintain during the term of the License, at Discovery's
sole expense, a policy of comprehensive general liability insurance in an amount no less
than One Million and N0/100 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 Discovery's certificate of
insurance that identifies the City as an additional insured shall be provided to the City
prior to any use of the Staging Property pursuant to this License.
11. DEFAULT. In the event of a breach by Discovery 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 Staging Property and adjoining City right of way by Discovery,
including addressing issues related to how Discovery's use of the Staging Property and
right or way affects nearby properties. However, any decision of the Director to not
establish or enforce reasonable rules and regulations shall not act as an acceptance,
approval, or consent to any action or inaction of Discovery, or wavier of any right of the
City. Discovery requests that this Agreement not list additional specific rules and
regulations to maintain flexibility in its use of the Staging Properly and acknowledges
that its best interests are served by this method. Compliance with any subsequently
created rules and regulations established by the Director for Discovery, its officers,
agents, employees, and subcontractors are expressly made terms of this Agreement.
13. ASSIGNMENT AND SUBLETTING. This License and Agreement is personal to
Discovery 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 the Director
approves any delegation or, assignment duties related to this License, any such
assignment shall not relieve Discovery 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.
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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:
By:
Mark A. Rohloff, City Manager Pam R. Ubrig, City Clerk
Ap
"J,y A A. Lorensoii, C* Attorney
DISCOVERY PROPERTIES, LLC
Date: to -.2-3 -/ 7
BY: Z!�"Z /A"
Michael A. Giu'&66-u", Managing Member
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May 4, 2017
D R A F T
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