HomeMy WebLinkAboutOshkosh Corporation Temporary Construction Access32-0
LICENSE AGREEMENT FOR TEMPORARY CONSTRUCTION ACCESS
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 Oshkosh Corporation, a Wisconsin
Corporation (Corporation), with a principal address of 2307 Oregon Street, Oshkosh,
Wisconsin 54902.
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City and Corporation have previously entered into an Agreement for Purchase and Sale
of Property dated January 10, 2018 ("Purchase Agreement"), whereby Corporation will
purchase a parcel of being a portion of Lakeshore Golf Course located at 2175
Punhoqua Street and legally described on the attached Exhibit A (the "Property") for the
purpose of constructing a Global Headquarters Facility. The Property is currently
accessed from the north via Punhoqua Street, a public street proceeding through a
neighborhood consisting primarily of residential and park property, to a driveway and
parking area for the current Lakeshore Golf Course.
The City has created Tax Increment District No. 34 (Oshkosh Corporation Global
Headquarters) and approved a project plan for the redevelopment of the Tax
Incremental District. City and Corporation have entered into a Development Agreement
dated March 16, 2018 in relation to the Global Headquarters Project to facilitate the
District Project Plan.
The District Project Plan includes the construction of new streets, extensions of Koeller
Street and Westfield Street, to access the Property from Oshkosh Avenue to the
South/Southwest of the Property.
It is beneficial to both parties to allow Corporation to access the site for construction
purposes in the area proposed for the extension of Koeller Street. In addition,
Corporation has requested the ability to control access to and utilize a portion of
Punhoqua Street, the golf course driveway and parking area incidental to the
construction of the headquarters facility on the adjacent Property and access to
municipal water through an existing hydrant located on the Property.
AGREEMENT
1. LICENSE. The City grants to Corporation a non-exclusive License to use the area
currently mapped for the extension of Koeller Street or other area within the area
subject to Corporation's NOI Permit as approved by the Director of Public Works as
provided in Paragraph 3.a. below, a portion of Punhoqua Street, the golf course
driveway and parking area (the "Licensed Area") as depicted on attached Exhibit "B"
to this Agreement and to utilize an existing municipal water hydrant located on the
Property in accordance with the terms and conditions stated herein. Corporation
accepts the License pursuant to the obligations described in this Agreement,
including:
May 10, 2018
a. The License is temporary;
b. The License is for the limited purpose of allowing access to the Property for
construction purposes for Corporation's Global Headquarters Project and to
permit access to an existing water hydrant on the Property for purposes
incidental to the construction of the headquarters facility.
c. The License requires full cooperation and compliance with the City in
establishing and maintaining the use of the Licensed Area and connection to
the City's water hydrant.
d. The License applies to Corporation's employees, officers, agents, contractors,
suppliers, and subcontractors, and the City acknowledges that Corporation
may cause any of its performance obligations under this Agreement to be
performed on Corporation's behalf by its contractors, suppliers and/or
subcontractors (which will collectively be referred to herein as the
Corporation). However, Corporation is directly responsible to the City for all
actions/inactions on the Licensed Area by employees, officers, agents,
suppliers, subcontractors and invitees.
e. The Licensed Area shall only be used for ingress and egress, and to
otherwise provide access to the construction project; except that parking of
personal vehicles shall be permitted in the paved parking lot area accessed
from Punhoqua Street and the current golf course driveway to the
north/northeast of the Property.
f. The Licensed area shall not be used for parking, storage or staging of
construction equipment, supplies or materials, except as noted in paragraph e
above.
g. Due to the nature of the vehicles and construction activities, the City
acknowledges that the Corporation's ingress and egress over the Licensed
Area may cause temporary and/or limited adverse effects to the Licensed
Area and adjoining property (i.e. normal wear and tear). However,
Corporation shall take all reasonable measures to prevent any permanent
and/or material adverse effects from Corporation's use of the Licensed Area
upon the Licensed Area, the adjoining City park property, adjoining right of
way, neighboring properties, public storm water facilities, or surface water
runoff.
h. Except for the right of access set forth herein, nothing contained herein shall
be construed as granting to Corporation any property interest or ownership
rights in the Licensed Area.
i. Nothing contained in this Agreement is intended to nor has the effect of
releasing Corporation from compliance with all applicable laws, rules,
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regulations and ordinances in addition to compliance with all terms, conditions
and obligations contained in this Agreement.
2. TERM. The term of this License begins on the date this Agreement is signed by all
parties. The License will terminate in whole or in part upon occurrence of the
following events:
a. The License, or any portion of the License not previously terminated as
provided below, will automatically terminate upon the substantial completion
of the City Project and the Headquarters Project, each as defined in the
Development Agreement entered into by these same parties and referenced
above.
b. Use of the Punhoqua Street Access shall terminate no later than July 1, 2019
to allow for City construction of the adjacent Riverwalk.
c. The License will terminate on written notice from Corporation that the
Licensed Area, or any portion thereof identified in the notice, is no longer
necessary, delivered via personal delivery, email delivery or first class mail to
the City of Oshkosh to the person identified in this Agreement.
d. The City may terminate the License if Corporation materially breaches this
Agreement. In the event of a breach of this Agreement, City shall provide
Corporation with written notice of breach delivered via personal delivery,
email delivery or first class mail to the person identified in this Agreement and
allow Corporation seven (7) calendar days from the date of delivery of the
notice to begin good faith efforts to correct the breach and show cause why
the License should not be terminated. The License shall be automatically
terminated if Corporation shall fail to respond to the notice. If the City
determines that Corporation has corrected the breach or is diligently pursuing
correction of the identified breach and taken such actions as reasonably
necessary to prevent further breaches, the City shall not terminate the
License. If the City determines that Corporation has failed to correct or
diligently pursue correction of the breach and/or failed to take actions as
reasonably necessary to prevent further breaches, the City may terminate the
License immediately upon written notice delivered via personal delivery, email
delivery or first class mail to the person identified in this Agreement.
e. Without regard to any other provision in this License, City may immediately
take any action that it believes is necessary to ensure public safety or
imminent damage to City's adjoining property with or without the permission
of Corporation. Corporation shall reimburse City for all expenses incurred by
City in connection with the exercise of City's rights under this paragraph that
are attributable to Corporation's or Corporation's employees, contractors, or
agents intentional acts or negligence.
f. All responsibilities, obligations, and liabilities identified in this Agreement or
pursuant to any law shall survive the expiration of the License.
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3. USE OF LICENSED AREA: This Agreement allows/requires Corporation to use the
Licensed Area as follows:
a. EXTENSION OF KOELLER STREET- ACCESS ROAD
Corporation shall construct at Corporation's expense a gravel road within
the portion of the Licensed Area comprised of the mapped extension of
Koeller Street or such other location within the area subject to
Corporation's NOI Permit as otherwise approved by the Director of Public
Works (the "Access Road"). Corporation shall obtain the Notice of Intent
(NOI) Permit and any other permits necessary from the State of Wisconsin
or other entities for the construction of the Access Road and shall be
responsible for constructing, installing, and maintaining any required
erosion control measures.
ii. Corporation shall remove the curb on N. Koeller Street at the intersection
with the Access Road. Removal and Replacement, if necessary, of curb
and gutter shall meet the standards specified in Section 25-19 of the City
of Oshkosh Municipal Code.
iii. Corporation shall construct and maintain the Access Road in such a
manner to prevent/minimize tracking onto Koeller Street. Corporation
shall remove all tracked material from paved streets as frequently as
necessary to keep adjacent streets free from material and debris.
iv. Except as specifically required or permitted under the terms of this
Agreement, All Heavy Traffic Vehicles, as defined in the City of Oshkosh
Municipal Code Section 27-14, and heavy equipment, which shall be
defined for purposes of this Agreement as anything heavier than a utility
service vehicle, shall access the Property by the Access Road. Vehicles
other than Heavy Traffic Vehicles and heavy equipment, including
personal vehicles may access the Property via the currently existing public
access to the site off of Punhoqua Street.
b. PUNHOQUA STREET ACCESS
i. Corporation may access site using existing Punhoqua Street (or other
public streets) leading to the existing golf course clubhouse parking lot.
Use of this access area is limited to visitors and Non -Heavy Traffic
Vehicles and equipment other than as defined in section a.iv. above;
except as necessary for alternative access to the Property as provided
under paragraph 11 below or as approved by the Director of Public Works.
ii. Corporation may place a gate across golf course parking lot as shown in
Exhibit B and shall erect barriers as necessary for the protection of the
property and the public during construction activities. Barriers may include
temporary construction fencing, barricades and signage.
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May 10, 2018
iii. Corporation shall allow city employees and city contractors and
consultants access through the gate as necessary for such persons to
perform work within the scope of their job duties.
iv. Upon completion of the construction project, Corporation shall restore or
remove any asphalt that has been damaged. Asphalt restoration shall be
coordinated with City to align with Riverwalk plans.
c. Corporation shall provide the City with a map and written description of uses
of the Licensed Area.
d. Corporation shall obtain a license for street obstructions as provided in
Chapter 25 of the City's Municipal Code and place directional signage for
contractors and visitors. Locations shall be in existing public right of way and
generally located as follows:
i. Northwest corner of Oshkosh Ave and Punhoqua Street
ii. Northeast corner of Oshkosh Ave and N. Koeller Street
iii. Southwest corner of Oshkosh Ave and N. Koeller Street
Final locations shall be approved by WisDOT.
e. Corporation shall take all reasonable and necessary actions to preserve and
maintain the surrounding property and vegetation within the Licensed Area.
Corporation shall operate and park vehicles only on paved or gravel surfaces.
Corporation shall maintain the Licensed Area 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. Corporation
shall maintain the grass by mowing on a frequency necessary to maintain the
property in a manner similar to the adjacent public property including trimming
along any fence lines and/or around signs, barricades or other objects.
Corporation shall operate equipment with reasonable and necessary care to
prevent damage to trees and other landscaping within the Licensed Area.
Corporation shall not trim or remove any trees from the License Area without
approval of the City Forester.
f. All locations of proposed gravel access must be approved by the Director of
Public Works prior to construction.
g. Corporation is responsible for any necessary erosion control, barricades,
fencing and posting all necessary signs. Corporation is solely responsible for
the means and methods of carrying out this obligation, and is solely
responsible for all liabilities associated with barricades, fencing and signage
issues, as well as all responsibilities associated with their use of the Licensed
Area.
h. Corporation shall provide a site plan for the Licensed Area, which shall
include, at a minimum, signage, barricade locations, security fencing, erosion
control measures and proposed gravel access areas. The site plan shall be
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May 10, 2018
updated as necessary to reasonably reflect the current status and uses of the
Licensed Area.
Corporation shall remove all equipment, fencing, gates, debris, and other
materials or substances from the Licensed Area at the expiration of the
License or upon termination of any portion of the License as it relates to that
portion. The City may, following reasonable notice to the Corporation and a
right to cure such condition, take all reasonable actions to remove any object
from or correct any condition within the Licensed Area related to the License
which Corporation has failed to remove or correct, and shall be fully
reimbursed by Corporation for these actions.
Corporation shall submit a plan for restoration of the Licensed Area which
shall include restoration of damaged pavement, sidewalk or other improved
areas or for removal of gravel access areas and pavement; and grading and
seeding or otherwise restoring all grass and landscaped areas within the
Licensed Area as may be agreed upon by the parties. Restoration shall
include blending areas as necessary to match then existing conditions which
may extend beyond the Licensed Area as necessary. Upon approval of such
plan by the Director of Public Works, Parks Director and Director of
Community Development, Corporation shall complete restoration of the
Licensed Area in compliance with the approved plan.
4. USE OF ADJOINING CITY RIGHT OF WAY: Corporation will access the Licensed
Area via City streets, driveway and parking area. The License is contingent upon
Corporation's protection of nearby City facilities such as streets, driveways, parking
areas, curbs and gutters, right of way terrace, and public sidewalks. Corporation
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. Corporation shall
repair or replace all damaged City property and facilities at the completion of the
construction project. The City Director of Public Works shall have complete
discretion to perform inspections and to determine if repair or replacement is
appropriate (in light of the City's obligations to complete certain aspects of the City
Project in, on or about the Licensed Area(s)), along with the appropriate time frame
for performing such repairs and/or replacements. Corporation shall keep the
adjoining right of way free from equipment, construction material, tracked material
and debris resulting from the Corporation's ingress/egress and construction
activities. Corporation shall not cause the accumulation of dirt or debris or the
artificial accumulation of snow and/or ice on the street or public sidewalk.
5. FIRE HYDRANT ACCESS. Corporation is hereby granted a license to use the
existing fire hydrant on the Property as shown on attached Exhibit B to this
Agreement. Corporation shall provide a meter assembly to measure water usage
which shall be approved for use by the City Water Utility and shall enclose the
hydrant in a manner to assure that the hydrant and meter are protected from
damage due to exposure to adverse weather, temperature and/or vandalism.
Corporation shall be charged for water usage at the customary rates and shall timely
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May 10, 2018
pay for all water usage. City Water Utility Staff shall be provided access to the
hydrant and meter assembly at all times. When the hydrant is no longer needed for
the construction project, and in no case no later than the Completion Date as
defined in the Development Agreement between these parties referenced above,
Corporation shall properly abandon the water line to the site and relocate the
hydrant to a location in the area of the existing City maintenance building located to
the East of the headquarters facility on Punhoqua Street. All work shall be
completed according to a plan to be submitted and approved by the City Water
Utility, which shall be consistent with the then current City of Oshkosh Standard
Specifications.
6. FEE. No fee shall be required.
7. RISK OF DAMAGE OR LOSS. Corporation assumes all risk of damage to or loss of
property it uses or places in the Licensed Area. Corporation accepts the property
"as -is," and releases the City and waives any recovery against the City and the
City's insurers for any loss arising out of or incident to Corporation's use of the
Licensed Area. This release and waiver shall not limit any claims incident to
Corporation's use of the Licensed Area to the extent the same arise from the City's
willful misconduct, negligence or other willful acts or bad faith.
8. INDEMNIFICATION. Corporation hereby indemnifies, defends and holds the City
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, including reasonable attorneys' fees (collectively, "Losses"),
suffered or incurred by the City to the extent caused by the following: (a) the acts or
omission of the Corporation (or its officers, employees, agents, suppliers, or
subcontractors while acting within the scope of their employment or service to
Corporation) in connection with this Agreement; or (b) the failure of the Corporation
or its contractors, subcontractors, agents, employees, or invitees to comply with any
law, rule, regulation or ordinance, or any order of any regulatory or administrative
authority in connection with this Agreement (including without limitation, as a result
of any release of any of petroleum products or hazardous materials or hazardous
substances on, upon or into the Licensed Area including any and all damages to
natural resources or real property or harm or injury to persons resulting or alleged to
have resulted therefrom). Subject to any limitations contained in Secs. 893.80,
893.83, 345.05, and any similar statute, of the Wisconsin Statutes, City hereby
indemnifies, defends and holds the Corporation harmless from any and all Losses,
suffered or incurred by the Corporation to the extent caused by the following: (a) the
acts or omission of the City (or its employees, agents or contractors while acting
within the scope of their employment or service to Corporation) in connection with
this Agreement; or (b) the failure of the City or its employees, agents or contractors
to comply with any law, rule, regulation or ordinance, or any order of any regulatory
or administrative authority in connection with this Agreement.
Nothing contained within this agreement is intended to be a waiver or estoppel of the
ability of the contracting municipality or its insurer to rely upon the limitations,
defenses, and immunities contained within Wisconsin law, including those contained
May 10, 2018
within Wisconsin Statues §§ 893.80, 895.52, and 345.05 and that such damage
limits, caps and immunities shall be used to govern all disputes, contractual or
otherwise, as they apply to the parties, their agents, officers and employees. To the
extent that indemnification is available and enforceable, the municipality or its
insurer shall not be liable in indemnity or contribution for an amount greater than the
limits of liability for municipal claims established by Wisconsin Law.
It is the intention of the parties to this Agreement that each party shall be solely
responsible for its own actions and activities and the actions and activities of its own
officers, employees and agents while acting within the scope of their employment.
9. INSURANCE. Corporation shall maintain during the term of the License, at
Corporation's sole expense, a policy of comprehensive general liability insurance in
such amounts as required by the Development Agreement.
10. RULES AND REGULATIONS.The Director of Public Works shall have the sole right
to establish and enforce reasonable rules and regulations concerning the
management, use, and operation of the License Area and adjoining City right of way
by Corporation, including addressing issues related to how Corporation's use of the
License Area 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, waiver, or consent to any action or inaction of
Corporation, or wavier of any right of the City. Compliance with any subsequently
created rules and regulations established by the Director are expressly made terms
of this Agreement.
11. CITY CONSTRUCTION IN LICENSED AREA. The parties acknowledge that during
the period of this License, the City will install public utilities/pavement within the
Licensed Area to serve the Property. Corporation's access to portions of the
Licensed Area will be restricted while installation of the utilities/pavement is
occurring; provided that the Corporation shall at all times be provided with access to
some portion of the Licensed Area in order to access the Property (whether by
means of an alternate access or otherwise). City shall give reasonable notice to
Corporation of the necessity to limit or close access to any portion of the Licensed
Area. Corporation agrees to cooperate with the City's construction in the Licensed
Area and shall not interfere with the City Construction or City contractor access to
the Licensed Area. The Parties specifically recognize and acknowledge that in
addition to City construction, private utilities may also perform work in the Licensed
Area which may require partial or full closure of access. Both parties agree to work
together to accommodate the requirements of private utilities working in this area as
necessary. During any period when access to any portion of the Licensed Area is
restricted or unavailable to Corporation, City shall work with Corporation to permit
alternative access to the Property for Heavy Traffic Vehicles, Machinery and
Equipment.
12. NOTICES. Any Notice required or permitted to be given hereunder shall be given in
writing and shall be deemed properly given when sent by nationally -recognized
courier, U.S. mail, facsimile transmission or email addressed as follows:
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May 10, 2018
To the City:
City of Oshkosh
Director of Community Development
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
Telephone: 920-236-5055
Fax: 920-236-5053
Email: adavis@ci.oshkosh.wi.us
With a Copy to:
City Attorney
City of Oshkosh
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
Telephone: 920-236-5115
Fax: 920-236-5106
Email: Ilorenson@ci.oshkosh.wi.us
To Corporation:
Oshkosh Corporation
Attn: Jason Havlik
2307 Oregon Street
Oshkosh, WI 54902
Telephone:
Fax:
Email: jhavlik@oshkoshcorp.com
With a Copy to:
Oshkosh Corporation
Heather Kelly
2307 Oregon Street
Oshkosh, WI 54902
Telephone:
Fax:
Email: hkelly@oshkoshcorp.com
13.AMENDMENTS; APPROVALS. No provision of this Agreement may be amended or
modified except by an agreement in writing executed by both parties. Any approvals
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May 10, 2018
or consent required from any party under this Agreement (including without
limitation, the Director of Public Works, City Forester, Parks Director or Director of
Community Development) shall not be unreasonably withheld, conditioned or
delayed.
14.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.
15. WAIVER. No delay or omission by any party to this Agreement in exercising any
right or power arising out of any default under any of the terms or conditions of this
Agreement shall be construed as a waiver of the right or power. A waiver by any
party of any of the obligations of the other party shall not be construed to be a waiver
of any breach of any other term or condition of this Agreement.
16.AGREEMENT NOT TO BE CONSTRUED AGAINST EITHER PARTY. This
Agreement is the product of negotiation between the parties hereto and no term or
provision herein or the failure to include a term or provision shall be construed
against any party hereto solely on the basis that one party or the other drafted this
Agreement or any term or provision contained herein.
17. 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.
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.
Signature Page to Follow
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May I O, 2018
CITY OF OSHKOSH
Date:
By: —-- -y'
MarkAhloff, City Manager Pam R. Ubrig, City Clerk
OSHKOSH CORPORATION
Date:
By:
Son ).
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May 10, 2018
EXHIBIT A
Property Legal Description
Lot Two (2) of CERTIFIED SURVEY MAP NO. 7312 filed in Volume 1 of Certified
Survey Maps on Page 7312 as Document No. 1757108; being part of unnumbered
portion of Block 100 of Leach's Map of 1894, part of the Fractional Northwest % of
Section 15, and part of Fractional Section 10, all in Township 18 North, Range 16 East,
Sixteenth Ward, City of Oshkosh, Winnebago County, Wisconsin.
Tax Parcel — 916-0847-02-00
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