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HomeMy WebLinkAboutConstruction Staging Revocable License Annex 71 2018CONSTRUCTION STAGING REVOCABLE LICENSE AGREEMENT This License Agreement ("Agreement") is between the City of Oshkosh, a Wisconsin Municipal Corporation and the Redevelopment Authority of the City of Oshkosh, a separate body politic, (collectively City) with a principal address of 215 Church Avenue, P.O. Box 1130, Oshkosh, Wisconsin 54903-1130, and Annex 71, LLC, an Indiana Limited Liability Company (Annex), with a principal address of 409 Massachusetts Avenue, Suite 300, Indianapolis, Indiana 53703. RECITALS The following City -owned property ("Staging Property") is the subject of this Agreement: Lot 2 of Certified Survey Map No. 7150 as recorded in the Register of Deeds Office as Document Number 1724920 and being a part of the Southeast '/4 of the Northeast 1/4 and part of the Northeast 1/4 of the Southeast '/4, Section 23, Township 18 N, Range 16 E, 1St Ward, City of Oshkosh, Winnebago County, Wisconsin. A map of the Staging Property is attached as Exhibit A. Annex will construct multi -family apartment buildings and associated amenities on property it owns that adjoins the Staging Property's west boundary. Annex will use the Staging Property as a staging area for materials and equipment to be used for its adjoining construction project. Annex's construction project is neither a public improvement project nor a public project in any manner. The City agrees to allow Annex temporary use of the Staging Property pursuant to the terms and conditions in this Agreement. In addition to being subject to the terms and conditions herein, Annex's use of the Staging Property is also subject to any existing easements or other property interests. AGREEMENT 1. LICENSE. The City grants, and Annex accepts, a revocable License to use the Staging Property. Annex accepts the License pursuant to the conditions and obligations described in this Agreement. More specifically, Annex agrees that: a. The License is temporary and revocable; b. The License or the limited purpose of allowing for use as a staging area for Annex's adjacent project to construct multi -family apartment buildings and associated amenities; and c. The License may be used for storage containers related to Annex's adjacent construction project. Annex may request that the Director approve additional uses upon request; and March 12, 2018 d. The License applies to Annex' employees, officers, agents, suppliers, contractors, and subcontractors. Annex is solely and directly responsible to the City for all actions/inactions on the Staging Property by employees, officers, agents, suppliers, contractors, and subcontractors; and e. The Staging Property shall only be accessed from Annex's property. No ingress or egress shall be from or to the drive aisle adjoining the Staging Property's eastern property line, or from Marion Road along the southern property line. This is a material condition and any breach of this condition may result in the immediate revocation of this License with or without notice; and f. As there are storm water inlets on and near the Staging Property, Annex shall install Type D — modified, construction erosion control measures on and adjacent to the Staging Property where construction staging areas will occur, before any such activities occur. This is a material condition and any breach of this condition may result in the immediate revocation of this License with or without notice; and g. Annex shall fully cooperate and comply with the City's instruction and direction in establishing and maintaining the use of the Staging Property, this includes taking measures necessary to ensure the completion of the City's two adjacent and/or nearby water tower projects; and h. Annex shall protect the City's Staging Property, including any facilities and improvements. Annex shall, at its expense, repair all damage and return the Staging Property to its condition at the beginning of the License; and i. Annex shall comply with all relevant federal, state, and local laws and rules pertaining to Annex's use of the Staging Property; and j. In the event the City revokes the License Agreement, all equipment and materials will be removed from the Staging Area within seven (7) business days and the site will be returned to its original condition within thirty (30) days, excepting days during winter or inclement weather; and k. Equipment and materials on the Staging Property shall be for use on the adjacent construction project only. No equipment and materials on the Staging Property shall be for use on any other project or property; and 1. All other terms within this Agreement are incorporated into the License.; and in. All terms of this Agreement are material and the breach of any may result in the revocation of this License. To the extent that particular conditions are identified as material, such identification is for clarity and emphasis only. 2. TERM. The term of this License begins on the date this Agreement is signed by all parties. The Director of the City's Community Development Department (Director), or their 2 March 12, 2018 designee, shall have the sole discretion in determining the date Annex's License expires. The License will expire pursuant to any of the following events: a. The License will expire on the date Annex no longer remains involved as the controlling developer of the adjacent construction project. Any subsequent owner or controlling developer is required to negotiate and enter into a new Staging License Agreement. The City is under no obligation to enter into a new Staging Agreement with another entity. If the City is unclear of Annex's association with the construction project, it will provide Annex with written notice of License expiration via first class mail and allow Annex seven (7) calendar days from the date of mailing to show cause why the License should not expire. b. If Annex 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 Annex materially breaches this Agreement, after the Director provides Annex with written notice of breach via first class mail and allow Annex seven (7) calendar days from the date of mailing to show cause why the License should not expire. d. The License will expire if Annex 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 Annex with written notice of breach via first class mail and allow Annex 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 Annex with written notice of breach via first class mail and allow Annex 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 Annex to use the Staging Property as follows: a. A map of the boundaries within the Staging Property that Annex will be allowed to use is attached as Exhibit A, with the attached map fully incorporated into this Agreement. b. Annex 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 March 12, 2018 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 Property to ensure that it remains in the same condition. c. Annex 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. d. Annex's use of the Staging Property may include the location of storage containers related to Annex's adjacent construction project. Annex may request that the Director approve additional uses upon request. Annex is responsible for fencing the Staging Property and posting all necessary signs. Fencing shall be installed with surface level posts only, and no digging or soil removal is allowed. While the City requires fencing and signage to prevent unauthorized persons to enter the Staging Property, Annex 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. f. Annex shall obtain the approval from the Director of a site plan for the Staging Property, which may include storage locations, fencing, and access. Annex shall not permit any waste or damage to the Staging Property. g. Annex 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. h. Only materials and equipment used for the adjoining construction project shall be allowed on the Staging Property. i. Annex shall take all reasonable measures to cooperate with surrounding property owners in efforts to minimize adverse effects of Annex's use of the Staging Property. j. Annex 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 Annex has failed to remove, and shall be fully reimbursed by Annex for these actions. 4. USE OF ADJOINING CITY RIGHT OF WAY: Annex will access the Staging Property only from its property adjoining the Staging Property's west boundary. Annex is responsible for protecting nearby City facilities such as Water Utility structures, fences, streets, curb and gutter, right of way terrace, and public sidewalks. Annex 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. Annex shall repair or replace all damaged City property and facilities at the completion of the construction project. The March 12, 2018 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. Annex shall keep the adjoining right of way free from equipment, construction material, and debris. Annex shall keep Marion Road and the adjoining sidewalk clean at all times, and shall not cause the artificial accumulation of snow and/or ice on the street or public sidewalk. Annex is responsible for keeping the public sidewalk in safe condition for public use. Except for emergency safety concerns, Annex shall not block the street or public sidewalk for any reason without the explicit permission of the Director. Annex 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. COORDINATION WITH ADJACENT WATER TOWER PROJECTS. The Staging Property is adjacent to, or near, two water tower projects being undertaken by the City. One project is the construction of a new water tower, and the second project is the demolition of the old water tower. As described in this Agreement, Annex's use of the Staging Property is subservient to the two water tower projects. a. Annex agrees to coordinate its use of Staging Property with City's Marion Road Water Tower Project which includes demolition of the approximately 180 -foot tall, 750,000 -gallon elevated water tank. Demolition is anticipated to involve lead paint abatement, torch shearing structural steel and loading dismantled steel by crane for truck transport to offsite disposal. Estimated demolition duration is 7 days, with the actual time taken dependent upon weather conditions. Annex agrees to remove its property, which may include containers, construction trailer, construction equipment, construction materials, and other items, from Staging Property during water tower demolition; however, if any property of Annex is not removed from the Staging Property any damage to such Annex property located on the Staging Property shall be at the sole risk of Annex, without liability to the City Annex agrees to protect its officers, employees, agents, suppliers, or subcontractors from hazardous conditions resulting from the water tower demolition. The City expects to provide seven (7) calendar days advance notice before the Staging property must be cleared. The City is not responsible for protection of Annex property located on the Staging Property during demolition. b. Annex agrees to allow the City the right to use a uniform sixty (60) foot strip on Annex's property along the Staging Property's west boundary line (the "Annex Easement Property") for the purpose of removing the old water tower. A map of this area is attached as Exhibit B and is identified therein as Water tower demo work area and route of trucking. The demolition and removal of the old water tower will require relatively intensive use over the course of the demolition, which is currently expected to last for seven (7) days. The City will not have exclusive use of this area, but Annex will make reasonable efforts to ensure that the City demolition process experiences minimal interruption. The demolition of the old water tower is important to the completion of Annex's development, and both parties agree to work together to ensure the timely demolition and clearing of the old water tower site. The City shall fully document the condition of the Annex Easement Property prior to the commencement of removal of the old water 5 March 12, 2018 tower so that any damage identified by Annex can be compared to its original condition. The City shall repair or replace any damage to the Annex Easement Property at the completion of the removal of the old water tower. The City's right to use the Annex Easement Property shall automatically terminate upon the completion of the City's removal of the old water tower. 6. FEE. No fee shall be required. However, the promises contained in this Agreement, including but not limited to the ability to use Annex property for the demolition of a City water tower, are material considerations received by the City that have resulted in this Agreement. 7. INDEMNIFICATION. (a) Annex agrees to hold the City; its officers; officials; employees, and agents including Marion Road Water Tower construction contractor Chicago Bridge & Iron, Inc. (CBI), CBI's subcontractors, construction Engineers CH2M Hill Engineer's Inc., Dixon Engineering, Inc., and AECOM Technical Services Inc. 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 Annex's officers, employees, agents, suppliers, or subcontractors while acting within the scope of their employment or service to Annex. Annex shall indemnify the City for any costs or damages it incurs that are associated with or related to this License and the terms of this Agreement, excepting those costs or damages the City incurs as a result of its own negligence, or willful or malicious actions. (b) The City agrees to hold Annex, its officers, officials, employees, affiliates, subcontractors, 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 Section 5(b) of this Agreement where such liability is founded upon or grows out of the acts or omission of any of the City's officers, employees, agents, suppliers, or subcontractors while acting within the scope of their employment or service to the City. The City shall indemnify Annex for any costs or damages it incurs that are associated with or related to the City's use of the Annex Easement Property pursuant to Section 5(b) and the terms of this Agreement, excepting those costs or damages Annex incurs as a result of its own negligence, or willful or malicious actions. 8. 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. 9. RISK OF DAMAGE OR LOSS. Annex assumes all risk of the damage to or loss of any person or of anything it places on the Staging Property. Annex is responsible for any 6 March 12, 2018 injury to all persons and personal property related to this License. Annex 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 Annex's use of the Staging Property or City right of way. 10. HAZARDOUS MATERIALS. Annex 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 Annex will use for the adjoining construction project. Any discharge, leakage, or spillage of hazardous materials of any type under, on or over the Staging Property as a result of Annex'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. Annex, 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. Annex 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. 11. INSURANCE. Annex shall maintain during the term of the License, at Annex's sole expense, a policy of comprehensive general liability insurance in an amount no less than One Million and NO/100 Dollars ($1,000,000.00) along with other terms and amounts satisfactory to the City. The City shall be included as an additional insured for such policy using language provided by the City. A copy of Annex'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. 12. DEFAULT. In the event of a breach by Annex 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. 13. 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 Annex, including addressing issues related to how Annex's use of the Staging Property and right of 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 Annex, or wavier of any right of the City. Annex requests that this Agreement not list additional specific rules and regulations to maintain flexibility in its use of the Staging Property and acknowledges that its best interests are served by this method. Compliance with any subsequently created rules and regulations established by the Director for Annex, its officers, agents, employees, and subcontractors are expressly made terms of this Agreement. 14. ASSIGNMENT AND SUBLETTING. This License and Agreement is personal to Annex 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 7 March 12, 2018 approves any delegation or assignment duties related to this License, any such assignment shall not relieve Annex of its obligations under this Agreement. 15. 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. 16. AMENDMENTS. No provision of this Agreement may be amended or modified except by an agreement in writing executed by both parties. 17. 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. 18. 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. [signatures on next page] 8 March 12, 2018 CITY OF OSHKOSH Date: 01 By: a— Mar A. Rohloff, City Manager Pam R. Ubrig, City Clerk REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH Date: 's -We -- , By: H. Allen Davis III, Executive Director Steven J. C mmings, Chairman -o" ANNEX 71, LLC, an Indiana limited liability company By: Mecca Companies, Inc., its Manager Date: µ �� By: �<Z6 • &L Name: Kyle D. Bach Title: CEO March 12, 2018 1 SIR P F 1 WN i FAA S; 4 APAMMJ� N U City of Oshkosh maps and data are intended to be used for general identification purposes only, and the City of Oshkosh assumes no liability for the accuracy of the information. Those using the information are responsible for verifying accuracy. For full disclaimer please go to www.ci.oshkosh.wi.us/GlSdisclaimer ing Base Map.mxd Ex N 1 in = 0.05 mi 1 in= 281 ft Printing Date: 11/1/2017 Prepared by: Char of Oshkosh, Wl ibit A iavi User- dadeneb is NOS)l 3vr xhioL Eb LLr Client#: 31715 ANNEGRO ACORD. CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 5/08/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ONI Risk Partners 600E 96th St Suite 400 CONTACT Kathleen Lemont, CIC, ACSR PHONEo FA (AIC Ext): - A/C No): E-MAIL ADDRESS: kathleen.lemont@onirisk.com Indianapolis, IN 46240 INSURER(S) AFFORDING COVERAGE NAIC # INSURER A : Ironshore Specialty Insurance C 25445 8/18/2017 INSURED Annex 71, LLC 409 Massachusetts Ave., Suite 300 Indianapolis, IN 46204 INSURER B : The North River Insurance Compa 21105 INSURER C : Auto -Owners Insurance Company 18988 INSURER D INSURER E INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTRR TYPE OF INSURANCE ADDLSUBIR NSR WVD POLICY NUMBER POLICY EFF MMIDDY EXP LIMITS A X COMMERCIAL GENERAL LIABILITY X X WKGO0249000 8/18/2017 08/18/2018 EACH $1,000,000 � �OCCURRENCE PREMISES ence CLAIMS -MADE OCCUR EsEoNccTu $100,000 X $2,500 Ded BI&PD MED EXP (Any one person) $5,000 PERSONAL & ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 PR POLICY FXI ECOT- FX] LOC PRODUCTS - COMP/OP AGG $ 2,000,000 OTHER: $ Ci AUTOMOBILE LIABILITY X X 5135001700 8/18/2017 08/18/201 EO acoden SINGLE LIMIT 1,000,000 X ANY AUTO BODILY INJURY (Per person) $ ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ X HIRED AUTOS X NON -OWNED AUTOS PROPERTY DAMAGE $ Per acc dent B UMBRELLA LIAB X OCCUR 5821085097 8/18/2017 08/18/2018 EACH OCCURRENCE $10,000,000 X EXCESS LIAB CLAIMS -MADE AGGREGATE $10,000,000 DED X RETENTION $0 $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N / A (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Oshkosh, a Wisconsin Municipal Corporation Redevelopment Authority of the City of Oshkosh, Wisconsin are Additional Insured on Commercial General Liability RE: City -owned property at Lot 2 of Certified Survey Map No. 7150 as recorded in the Register of Deeds (See Attached Descriptions) City of Oshkosh, a Wisconsin Municipal Corporation Redevelopment Auth. of the City of Oshkosh, WI 215 Church Ave. PO Box 1130 ACORD 25 (2014/01) 1 Of 2 #S1474928/M1120780 a,.:.. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD KLEMO DESCRIPTIONS (Continued from Page 1) Office as Document Number 1724920 and being a part of the Southeast 1/4 of the Northeast 1/4 and part of the Northeast 1/4 of the Southeast 1/4, Section 23, Township 18N, Range 16E, 1st Ward, City of Oshkosh, Winnebago County, Wisconsin. SAGITTA 25.3 (2014/01) 2 of 2 #S1474928/M1120780