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HomeMy WebLinkAboutLunda Construction Canadian National Railroad I345-o 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 Lunda Construction Company, a Wisconsin Corporation (Lunda), with a principal address of 620 Gebhardt Road, PO Box 669, Black River Falls, Wisconsin 54615-0699. RECITALS The City through its Parks Department owns property upon which it operates a public facility commonly known as the 24th Avenue boat launch. This City property is located east of South Main Street and south of East 24th Avenue, and has a tax parcel number of 0614440000 and a street address of 2404 South Main Street, and is identified in the attached Exhibit A. Canadian National Railroad (CN), through its subsidiary Fox Valley & Western, Ltd., owns property and operates railroad tracks on a parcel between the City boat launch property and the South Main Street public right-of-way. CN will be repairing, reconstructing, and/or replacing a bridge on its adjoining property and has hired Lunda to complete this project. The CN property contains sufficient space for construction and staging activities, but has limited access points. Lunda has requested the opportunity to use the parking lot drive aisles that are part of the City's boat launch facilities to access the railroad property and the bridge construction site. The City agrees with the request subject to the terms of this Agreement. The City property will be used for access only. Access does not include standing, stopping, or parking, regardless of whether such actions are on a short—term or long-term basis. Additionally, the access through City property will not include project staging, or for storage of materials or equipment. This limited use of public property as part of this project does not and is not intended to cause this CN project to become a public improvement project nor a public project in any manner. Lunda's ability to access CN's bridge site through the City's boat launch parking lot will result in efficiencies in terms of project access, time, construction cost savings, and limited blockage of the adjoining South Main Street right-of-way. These efficiencies benefit both Lunda and the City and form the underlying consideration for this Agreement. Therefore, the City agrees to allow Lunda to temporarily use the City's parking lot for the 24th Avenue boat launch for the limited purposes as described in this Agreement. AGREEMENT 1. LICENSE. The City grants to Lunda, and Lunda accepts, a temporary, limited License to use the City boat launch property parking lot for purposes of allowing Lunda to access CN's March 8, 2019 1 will take approximately 180 calendar days. The License will expire pursuant to any of the following events: a. The Director determines, at their discretion,that the bridge project is complete, or has been interrupted for an extended period of time, or has been abandoned, provided the Director provides such notice no less than twenty (20) days before such expiration determination is final. b. Lunda materially breaches this Agreement, after the Director provides Lunda with written notice of breach via first class mail and allow Lunda seven (7) calendar days from the date of mailing to show-cause why the License should not expire. c. Lunda fails to reasonably minimize the impact of its use of the City boat launch property, whether the impacts affect the City property directly, or impacts neighboring properties. The City shall provide Lunda with written notice of breach via first class mail and allow Lunda seven(7) calendar days from the date of mailing to show-cause why the License should not expire. d. The License will expire for any reason based upon any material adverse effect upon the City, City property, the adjoining City right-of-way, neighboring properties, or lakes, creeks, streams, or wetlands after the Director provides Lunda with written notice of breach via first class mail and allow Lunda seven (7) calendar days from the date of mailing to show cause why the License should not expire. e. All responsibilities, obligations, and liabilities identified in this Agreement or pursuant to any law shall survive the expiration of the License. 3. USE OF CITY PROPERTY: In addition to other terms within this Agreement, Lunda may use the City boat launch property as follows: a. A map of the allowed path for ingress and egress, along with the boundaries of the City boat launch property is attached as Exhibit A, with the attached map and the information contained on this map fully incorporated into this Agreement. b. All trees, including all branches on the trees, shrubs, vines, and similar vegetation which are located on or near the City Property shall be protected and preserved. No tree, tree branch, shrub, vine or similar vegetation on or extending over the City boat launch property will be cut, trimmed, bent, broken, damaged, or adversely affect in any way, except for those approved for removal or trimming by the Parks Director or designee. c. All surfaces, whether Iandscaped or hard surface, that are damaged as a result of the activities described in this Agreement shall be repaired by Lunda at the discretion of the City and as required by the City. March 8, 2019 3 by any vehicle, piece of equipment, or material, even if otherwise not allowed. The City's prohibition of certain heavy and/or wide vehicles or equipment does not warranty that all other equipment may be used safely and without damaging City property or other property. c. Lunda has an obligation to undertake a due diligence review regarding the soil types they will be crossing, construction of the driveway and parking lot and resulting weight restrictions of the City parking lot and grass areas, as well as distances, widths, and turning radius, including driveways and drive aisles, and is responsible for ensuring that the City property will withstand Lunda's intended use without damaging City Property or the property of others using the boat launch facilities. d. The City shall have sole discretion to perform inspections and to determine if repair or replacement of improvements or other damaged property is appropriate, along with the appropriate time frame for performing such repairs and/or replacements. e. Any actions or blockage of South Main Street shall be subject to all other right-of- way restrictions and necessary approvals. Lunda shall keep the adjoining South Main Street right of way free from equipment, construction material, and debris. Except for emergency safety concerns, Lunda shall not block the City's parking lot, street or sidewalk for any reason without the explicit permission of the City. Lunda shall be responsible for the cost of all signage or other expenses the City deems necessary as a result of any uses or conditions related to this Agreement. 5. FEE. No fee shall be required. • 6. INDEMNIFICATION. Lunda 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 Lunda's officers, employees, agents, suppliers, or subcontractors while acting within or outside the scope of their employment with Lunda or service to CN. The City agrees, subject to any limitations contained in Sec 893.80 and any similar statute, of the Wisconsin Statutes, the City agrees to hold Lunda, 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 March 8,2019 5 Subsequently created rules and regulations established by the City related to its boat launch property or public right-of-way are expressly made terms of this Agreement. 13. ASSIGNMENT AND SUBLETTING. The permissions granted by this Agreement are personal to Lunda, and they cannot be sold, assigned, transferred, encumbered, or pledged to any other person or entity without the specific written approval of the City. In the event the City approves any assignment of this Agreement, any such assignment shall not relieve Lunda of its obligations under this Agreement. 14. GOVERNING LAW. This 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. 16. THIRD PARTY BENEFICIARIES. This Agreement shall benefit and burden only the parties to this Agreement and are not intended to benefit any third party. 17. SEVERABILITY. A 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 and the remaining terms shall remain in effect. Date: 7- 2 Z" I�I CITY OF OSHKOSH ��� By: Mar A. Rohloff, City Manager Pam R.Ubrig, City Clerk Approved as to form: ftk 1/3 lilt .. • . Lorenson, Attorney LUNDA CONSTRUCTION COMPANY By: -7):2 ^tom�,, � 1--Y1 Rr�,,�v a )v' �AL. j (print name) (title) March 8, 2019 7 •A�Q® DATE(MMIDDIYYYY) CERTIFICATE OF LIABILITY INSURANCE 3/14/2019 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 have ADDITIONAL INSURED provisions or 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 CONTACT NAME: Alliant Insurance Services, Inc. PHONE FAX 333 South Hope Street, Suite 3750 (A/C.No.Extl:213-443-2440 (A/c,Nol: Los Angeles CA 90071 ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# INSURER A:Zurich American Insurance Company 16535 INSURED INSURER B: Lunda Construction Company 620 Gebhardt Road INSURERC: P.O. Box 669 INSURER D: Black River Falls WI 54615 INSURERE: INSURER F: COVERAGES CERTIFICATE NUMBER:1547490808 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 CONTRACT OR 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. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP W (MM/ LIMITS LTRINSD VD POLICY NUMBER DD/YYYY) (MM/DD/YYYY) A X COMMERCIAL GENERAL LIABILITY Y GL0654236307 5/31/2018 5/31/2019 EACH OCCURRENCE $3,000,000 DAMAGE RENTED CLAIMS-MADE X OCCUR PREMISESO(Ea occurrence) $1,000,000 MED EXP(Any one person) $10,000 PERSONAL&ADV INJURY $3,000,000 GEN'L AGGREGATE LIMIT APPLIES PER. GENERAL AGGREGATE $6,000,000 POLICY X JE X LOC PRODUCTS-COMP/OP AGG $6,000,000 OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1Ea accident) ANY AUTO BODILY INJURY(Per person) $ OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY _(Per accident) UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED _RETENTION$ , $ WORKERS COMPENSATION PER AND EMPLOYERS'LIABILITY Y!N STATUTE EERH ANYPROPRIETOR/PARTNER/EXECUTIVE N!A E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (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) Lunda Job Number 10836900 Certificate Holder is included as additional insured as required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Oshkosh P 0 Box 1130 Oshkosh WI 54903-1130 AUTHORIZED REPRESENTATIVE ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD