HomeMy WebLinkAbout11. 19-544 OCTOBER 8, 2019 19-544 RESOLUTION
(CARRIED 7-0 LOST LAID OVER WITHDRAWN )
PURPOSE: ACCEPT STORM WATER EASEMENT AT 2105 SOUTH
KOELLER STREET
INITIATED BY: CITY OF OSHKOSH
PLAN COMMISSION RECOMMENDATION: Approved
BE IT RESOLVED by the Common Council of the City of Oshkosh that the City
hereby accepts a storm water easement at 2105 S. Koeller Street, per the attached, and the
proper City officials are authorized and directed to execute any and all documents
necessary for purposes of same.
06,
City
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Oshkosh
TO: Honorable Mayor and Members of the Common Council
FROM: Mark Lyons
Planning Service Manager
DATE: October 3, 2019
RE: Accept Storm Water Easement at 2105 South Koeller Street (Plan Commission
Recommends Approval)
BACKGROUND
The subject 16.43 acre property which is part of Aviation Plaza and is located at the southwest
corner of S. Koeller Street and W. 20th Avenue, east of Interstate 41. The property is currently
being developed with the Mineshaft restaurant and entertainment complex on the northern
portion of the subject site.
ANALYSIS
The proposed easement is a variable-width, "U" shaped area along the perimeter of the west,
north and east lot lines. The purpose of the easement is to allow storm water runoff to flow onto
the private property. Runoff originating from the Stringham Creek Drainage Basin flows from
the west under Interstate 41 onto the subject site. The easement is required to allow this runoff
to flow onto this property. The runoff exits the site and flows to the northeast, eventually
discharging into the Fox River near Iowa Street. The part of the easement located along the east
perimeter of the property is to allow storm water to enter the property from S. Koeller Street
east of the subject site. The runoff flows to the north to W. 20th Avenue, which again flows to
the northeast discharging into the Fox River. The Department of Public Works and City
Attorney's Office will work with the property owner to have appropriate easement documents
signed and recorded at the Winnebago County Register of Deeds.
RECOMMENDATION
The Plan Commission recommended approval of the acceptance of the storm water easement at its
September 17, 2019 meeting.
Respectfully Submitted, Approved:
V/ Z90
Mark Lyons Mark A. Rohloff
Planning Services Manager City Manager
City Hall,215 Church Avenue P.O.Box 1130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
Water Drainage, Retention, and
Natural Flow Easement Agreement
Document Number Document Title
THIS INDENTURE, made this day of , 2019, b
MASTERS OSHKOSH, LLC and ROGAN STORES OSHKOSH LLC,
collectively,Grantor,and CITY OF OSHKOSH,a municipal corporation,located in
Winnebago County,Wisconsin,Grantee,
WITNESSETH: Recording Area
Name and Return Address
IN CONSIDERATION of the sum of One Dollar($1.00)and other good City Attorney's Office
and valuable consideration paid by the Grantee,the receipt of which is hereby PO Box 1130
acknowledged,the Grantor,its successors and assigns,does hereby give and grant Oshkosh,WI 54903-1130
unto the Grantee,its successors and assigns,and Grantee accepts,an easement over,
under,and through the land hereinafter described. 91334222034,91323100404
1. PURPOSE: The Grantor's Property is a large commercial site parcel Identification Number (PIN)
previously containing both big box and smaller retail buildings. The larger site is currently being
redeveloped. The City currently utilizes some of the Grantors'Property for storm water drainage and
retention,as well as flow and drainage related to a natural creek along or near the west boundary of
Grantors'Property. The City's use of the Grantor's Property for storm water drainage and natural flow and
drainage will need to continue and be adjusted as part of the redevelopment of Grantor's Property. The
City's use of Grantors'Property will also include receiving water runoff from private properties,including
Grantors',as part of the City's storm water and natural flow management system. Currently the Grantee's
use of Grantor's Property for drainage,retention,and natural flow is at the surface level. However,as noted
herein,further use may include underground facilities at the Grantee's discretion.
2. GRANTOR'S PROPERTY:The Grantor's Property is situated in the City of Oshkosh,Winnebago County,
Wisconsin,and is described as follows:
Masters Oshkosh,LLC.Parcel Number 91334222034
Lot 3 and 4 of Certified Survey Map Number 5964,as recorded September 7,2006 in Volume 1,Page 5964,
Document Number 1410416,Winnebago County Register of Deeds,excluding lands used for right-of-way purposes
for DOT Project 1120-10-21 described in documents 1493434 and 1511246,Winnebago County Register of Deeds.
Rogan Stores Oshkosh LLC.Parcel Number 91323100404
Lot 2 of Certified Survey Map No. 5964 recorded with the Winnebago County Register of Deeds on September 7,
2006 in Volume 1 of Certified Survey Maps on Page 5964 as Document No. 1410416. Said land being in the City o
Oshkosh,County of Winnebago,State of Wisconsin.
3. EASEMENT PROPERTY: The Grantor's Property subject to the Easement granted herein shall be over,
under,and through certain tracts of land situated in the City of Oshkosh,Winnebago County,Wisconsin,
(`Easement Property"),described as follows:
Easement Property Described in Exhibit A,Attached
4. EASEMENT LOCATION: The location of the Easement Property is identified on Exhibit B,attached.
Improvements within the Easement Property along with future improvements to the adjoining private property are
identified on Exhibit C,attached.
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September 26, 2019
5. ACCESS RIGHTS: The City shall have the complete right to access and use the Easement Property for,and related
to,the public storm water management system as described in this Agreement,
6. USE FOR WATER MANAGEMENT SYSTEM: The City will use the Easement Property for public storm water
drainage and retention,as well as natural water flows of the Stringham Creek watershed. The City shall have the right
to fully use the Easement Property for these drainage purposes as part of its public storm water management system.
The City shall have the right,at its discretion,to access,survey,operate,maintain,repair,and use the drainage swale
for these purposes. The City may,at its discretion,install underground storm sewer drainage structures and other
related items to convey storm water runoff and/or to address flows of the Stringham Creek watershed.
7. MAINTENANCE: Grantor shall be responsible for cleaning,maintenance, and repair of the surface of the Easement
Property to the same extent that it undertook those activities prior to this Agreement. The City shall be responsible
for damage to the Easement Property caused by the City's use of its Easement rights described in this Agreement.
The Grantor's responsibilities include mowing and ensuring that the drainage swale and/or channel retains its
established grade,remains free of obstructions that would prevent it from draining in the manner it was designed to
drain,and retains sufficient grass to minimize erosion. Grantor shall be responsible for maintaining any
improvements allowed to in installed within the Easement Property. In the event that Grantor believes that certain
erosion,debris,and/or damage to the Easement Property is the result of the City's use of the Easement Property,then
both parties agree to meet and confer and attempt to reach a good faith resolution of the issue. Grantor's
responsibilities do not include repairs of City structures and facilities,or repairs which are the result of the City's use
of the Easement Property.
8. INTERFERENCE WITH EASEMENT: Except as otherwise allowed in this Agreement,Grantor,their heirs,agents,
or assigns,shall not interfere in any way with the City's use of the Easement Property,or install or construct any
structures or improvements,landscaping or similar impediments,within the Easement Property,The City
acknowledges that the Grantor will be redeveloping the Grantors' Property and,therefore,is allowed to install
improvements otherwise approved by the City. These improvements may include driveways,parking spaces,drive
aisles,signage,and electrical poles.Grantor shall not place,pile,or move snow or ice onto the Easement Property.
Prohibited new structures or improvements on the Easement Property include,but are not limited to,temporary or
permanent building structures,driveways,parking areas,sheds,change in elevations,vegetation except grass,
landscaping or fences. However,Grantee shall be allowed to install private utilities benefitting Grantors'property,
including but not limited to electrical,storm water,water distribution,and sanitary sewer facilities,as long as plans
for such installations are submitted to and approved by the City prior to their installation. The City retains the right to
direct the type and location of private utilities which may be used based on the current or future use of the Easement
Property by the Grantee. Grantor shall promptly remove any objects,materials,or structures which impede the
Grantee's use of the Easement Property or limits the capacity of the Grantee's storm water drainage system. If
Grantor fails to remove these materials or objects,Grantee shall remove them at Grantor's expense. The Grantor
shall take reasonable steps to prevent third parties from interfering in any way with the City's use of the Easement
Property. However,the City may immediately remove any object or material which it believes materially interferes
with the design or function of any storm water drainage facility within the Easement Property. The City will,to the
maximum extent allowed by the City's Storm water Management Ordinance,prevent the increase of volume and rate
of storm water runoff into the drainage swale.
9. USE OF EASEMENT BY OTHERS: The Grantor agrees that the Grantee may temporarily assign the access rights
identified herein to any contractor,third party,or other assignee that will be performing work on the Easement
Property which would otherwise be allowed for Grantee itself to undertake. Grantee shall take reasonable steps to
ensure that the other party has sufficient competence and gives adequate assurances that any work to be performed in
or around the easement shall be conducted in a skillful manner,and that the Grantor's interest in the Easement
Property shall be protected to the same extent as if the Grantee was itself performing the construction and
maintenance.
10. DEFAULT: If either Grantor or Grantee reasonably believes that the terms of this Easement Agreement have been
breached,then written notification of the alleged breach shall be delivered to the other party. Any party in breach
shall have thirty(30)days to cure any actual breach. However,Grantee may immediately remove any object or
material which it believes materially interferes with the design of a storm water management facility within the
Easement Property.
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September 26, 2019
11. TERM: This easement is being granted in perpetuity for public purposes and uses,both current and future,without
regard to the Grantee's use of the Easement Property at any particular time. All rights,title and privileges herein
granted,including benefits and burdens,shall run with the land and shall be binding upon and inure to the benefit of
the Grantor and Grantee,their respective heirs,executors,administrators,successors,assigns,and legal
j representatives.
I
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12. EXISTING EASEMENTS: The Grantor and Grantee are aware of other existing recorded easements and potential or
future public utility easements which relate to or affect the Easement Property and are necessary for the
redevelopment and use of the Grantors'Property. In all cases Grantors shall notify the Grantee when a public utility
or another party requests an easement which affects the Easement Property. Uses of all easements within the
Easement Property shall consider the codes and regulations affecting the installations of other entities. Uses,
facilities,or structures installed within the Easement Property which violate codes and regulations affecting existing
uses shall be responsible for moving the offending use or structure to remedy the violation at their expense. Other
changes by municipal utilities and public utilities using the Easement Property will be the responsibility of the party
making changes to ensure that those changes fit within configuration of uses within the Easement Property existing at
that time.
13. 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 a party of any of the obligations of the other party shall not be construed to be a waiver of any breach of
any other terms or conditions of this Agreement.
14. INVALIDITY: If any term or condition of this Agreement,or the application of this Agreement to any person or
circumstance,shall be invalid or unenforceable,the remainder of this Agreement,or the application of the term or
condition to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be
affected thereby,and each term and condition shall be valid and enforceable to the fullest extent permitted by law.
15. NO THIRD PARTY BENEFICIARY: The terms of this Agreement are for the benefit of the two parties identified,
and it is not the intention of either the Grantor or Grantee that other parties shall acquire any rights,to enforce or
benefit from,through this Agreement.
16. 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 govern all disputes,contractual or otherwise,as they apply to the municipality and its agents,officers,and
employees.
17. GOVERNING LAW: This Agreement shall be construed and enforced in accordance with the laws of the State of
Wisconsin. Venue for any action regarding this Agreement shall be the Winnebago County,Wisconsin,Circuit Court
or,if a federal court action,then the appropriate district and/or branch within which Winnebago County is located.
18. NOTICES: Any notices required by this Easement shall be in writing and delivered via certified mail,return receipt
requested,as follows. Changes to these addresses shall be in writing. In addition to formal notification,both parties
agree to take reasonable measures to keep the other party informed of issues or questions regarding the Easement
Property.
FOR THE GRANTOR:
Masters Oshkosh,LLC Rogan Stores Oshkosh LLC
22 N.Main Street 1750 Ohio Street
Hartford,WI 54927-1532 Racine,WI 53405-3626
FOR THE GRANTEE:
City of Oshkosh
c/o Director of Public Works
P.O.Box 1130
Oshkosh,WI 54903-1130
3
September 26, 2019
19. AUTHORITY: The City affirms that all necessary boards and elected officials have approved the acceptance of this
Easement,and that the undersigned have the authority to sign this Agreement on behalf of the City. Grantor affirms
that it has the authority to enter into this easement agreement,and that the undersigned has the authority to sign this
Agreement on behalf of the Grantor.
IN WITNESS WHEREOF,said Grantor and Grantee have hereunto set their hand and seal the day and year first above
written.
MASTERS OSHKOSH,LLC
By:
Thomas J, Masters,Managing Member
STATE OF WISCONSIN )
) ss,
WASHINGTON COUNTY )
Personally came before me this day of ,2019,the above-named Thomas J.Masters of Masters
Oshkosh,LLC,to me known to be such person who executed the foregoing document and acknowledged that they executed the
same as such officers by its authority,for the purpose therein contained.
Notary Public, State of Wisconsin
My Commission expires:
ROGAN STORES OSHKOSH LLC by
ROGAN SHOES,INCORPORATED,its sole member
By:
Patrick A. Rogan,President of Rogan Shoes,
Incorporated, its sole member
STATE OF WISCONSIN )
) ss.
RACINE COUNTY )
Personally came before me this day of ,2019,the above-named Patrick A.Rogan of Rogan
Shoes, Incorporated, the sole member of Rogan Stores Oshkosh LLC, to me known to be such person who executed the
foregoing document and acknowledged that they executed the same as such officers by its authority,for the purpose therein
contained.
Notary Public,Racine County,WI
My Commission expires:
4
September 26, 2019
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C
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CITY OF OSHKOSH
By:
Mark A.Rohloff,City Manager
By:
Pamela R.Ubrig,City Clerk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
I
Personally came before me this day of ,2019,the above named Mark A.Rohloff and Pamela R.
Ubrig of the City of Oshkosh,to me known to be such persons who executed the foregoing instrument and acknowledged the
same,for the purpose herein contained.
Notary Public,State of Wisconsin
My Commission expires:
APPROVED AS TO FORM:
Lynn A.Lorenson, City Attorney
This instrument drafted by:
Attorney David J.Praska
Oshkosh,W1 54903-1130
5
September 26, 2019
CONSENT OF MORTGAGEE
The undersigned,being the holder of a mortgage against part of the property identified and described as"Easement Property"
in this Easement Agreement, and specifically the property owned by Masters Oshkosh, LLC, consents to the grant of the
Easement set forth above but only to the extent necessary to subordinate its mortgage interest in the Easement Property to this
Easement.
(print name of mortgagee)
By:
(signature) (title)
(print name) (print title)
STATE OF )
)ss.
COUNTY )
Personally came before me this day of ,2019,the above named
(signator)of (mortgagee), to me known to be such persons who executed
the foregoing instrument and acknowledged the same,for the purpose herein contained.
Notary Public,State of
My Commission expires:
6
September 26, 2019
STORMWATER EASEMENT LEGAL DESCRIPTION
An easement located within Lots 4, 3 & 2 of Certified Survey Map No. 5964, being a part of the
Northwest 1/4 of the Northwest 1/4 of Section 34,Township 18 North, Range 16 East, City of
Oshkosh, Winnebago County, Wisconsin being more particularly described as follows;
Beginning at the Northeast corner of Lot 4 of Certified Survey Map No. 5964, recorded in the
Winnebago County Register of Deeds Office in Volume 1 on Page 5964 as Document No.
1410416;thence South 00°-49'-01" West along the Westerly right-of-way line of Koeller Street,
a distance of 74.78 feet;thence South 04°-41'-12" East along said Westerly line, a distance of
120.84 feet;thence South 00'-48'-48" West along said Westerly line, a distance of 819.98 feet;
thence Southeasterly 39.54 feet along said Westerly line on a curve to the left having a radius
of 300.00 feet,the chord of said curve bears South 02°-57'-46" East, a chord distance of 39.51
feet; thence South 83°-15'-41'' West, a distance of 11.33 feet;thence North 04°-16'-15"West, a
distance of 71.83 feet;thence North 00'-00'-58" West, a distance of 136.17 feet;thence North
00'-21'-25" West, a distance of 148.29 feet;thence North 00*-48'-48" East, a distance of 242.73
feet; thence North 65°-19'-59" West, a distance of 13.12 feet;thence North 00'-48'-48" East, a
distance of 28.66 feet;thence North 230-51 -44 West, a distance of 131.74 feet;thence North
00°-48'-48" East, a distance of 269.52 feet;thence North 59'-05'-04" West, a distance of 40.36
feet;thence North 89'-11'-12" West, a distance of 332.95 feet;thence South 47'-10'-22" West,
a distance of 71.92 feet; thence South 220-32'-08" West, a distance of 140.72 feet;thence
South 37'-42 -41" West, a distance of 111.41 feet; thence South 21°-49'-14" West, a distance of
154.86 feet;thence South 00°-48'-48" West, a distance of 182.30 feet;thence South 070-59'-
57" West, a distance of 36.22 feet;thence South 170-59'-15" West, a distance of 78.64 feet;
thence South 080-52'-58" West, a distance of 77.32 feet;thence South 01°-08'-41" East, a
distance of 218.39 feet;thence South 80°-16'-42" West, a distance of 45.17 feet to the Easterly
right-of-way line of Interstate 41;thence North 04'-11'-35" West along said Easterly line, a
distance of 259.08 feet;thence North 000-50'-41" East along said Easterly line, a distance of
40.34 feet;thence North 11°-48-28" East along said Easterly line, a distance of 117.14 feet;
thence North 10'-07'-06" West along said Easterly line, a distance of 117.14 feet;thence North
000-50'-41" East along said Easterly line, a distance of 156.47 feet;thence North 27'-30'-05"
East along said Easterly line, a distance of 386.58 feet to the Southerly right-of-way line of W.
20th Avenue;thence South 88°-36'-28" East along said Southerly line, a distance of 594.16 feet
to the point of beginning.
Said easement contains 149,444 square feet.
Exhibit
W. 20TH AVENUE SOUTH RIGHT—OF—WAY
LINE OF W. 20TH AVENUE
SB8'36'28"E 594.16'
NW CORNER
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ITEM: ACCEPT STORM WATER EASEMENT AT 2105 S. KOELLER STREET
Plan Commission meeting of September 17,2019.
GENERAL INFORMATION
Applicant: City of Oshkosh
Owner: Masters Oshkosh,LLC.
Action Requested:
The City of Oshkosh is requesting acceptance of a storm water drainage easement located at 2105
S. Koeller Street.
Applicable Ordinance Provisions:
N/A
Property Location and Background Information:
The subject 16.43 acre property which is part of Aviation Plaza and is located at the southwest
corner of S.Koeller Street and W. 2011,Avenue, east of Interstate 41. The property is currently
being developed with the Mineshaft restaurant and entertainment complex on the northern
portion of the subject site.
ANALYSIS
The proposed easement is a variable-width, "U" shaped area along the perimeter of the west,
north and east lot lines. The purpose of the easement is to allow storm water runoff to flow onto
the private property. Runoff originating from the Stringham Creek Drainage Basin flows from
the west under Interstate 41 onto the subject site. The easement is required to allow this runoff to
flow onto this property. The runoff exits the site and flows to the northeast, eventually
discharging into the Fox River near Iowa Street.
The part of the easement located along the east perimeter of the property is to allow storm water
to enter the property from S.Koeller Street east of the subject site. The runoff flows to the north
to W. 20f Avenue,which again flows to the northeast discharging into the Fox River.
The Department of Public Works and City Attorney's Office will work with the property owner
to have appropriate easement documents signed and recorded at the Winnebago County Register
of Deeds.
RECOMMENDATION/CONDITIONS
Staff recommends approval of the acceptance of the storm water easement at 2105 S.Koeller
Street as requested.
The Plan Commission approved of the acceptance of the storm water easement as requested. The
following is the Plan Commissions discussion on this item.
Site Inspections: Report:Mr.Hinz reported visiting the site.
Staff report accepted as part of the record.
The City of Oshkosh is requesting acceptance of a storm water drainage easement located at 2105
S. Koeller Street.
Mr. Nau presented the item and reviewed the site and surrounding area as well as the land use
and zoning classifications in this area. The proposed easement is a variable-width, "U" shaped
area along the perimeter of the west,north and east lot lines. The purpose of the easement is to
allow storm water runoff to flow onto the private property. Runoff originating from the
Stringham Creek Drainage Basin flows from the west under Interstate 41 onto the subject site.
The easement is required to allow this runoff to flow onto this property. The runoff exits the site
and flows to the northeast, eventually discharging into the Fox River near Iowa Street. The part
of the easement located along the east perimeter of the property is to allow storm water to enter
the property from S. Koeller Street east of the subject site. The runoff flows to the north to W.
20th Avenue, which again flows to the northeast discharging into the Fox River. He said staff
recommends approval of the acceptance of the storm water easement at 2105 S. Koeller Street as
requested.
Mr. Fojtik opened technical questions to staff.
Mr. Kiefer asked if the drainage from the parking lot and buildings are flowing into the ponds or
storm water sewers.
Mr. Lyons said they are working with the city on their storm water management plans for the
entire redevelopment area. He said all the water will be flowing into the storm water easement
area/associated storm water plan.
Mr. Fojtik asked if there were any public comments and asked if the applicant wanted to make
any statements.
There were no statements from the applicant.
There were no public comments on this item.
Mr. Fojtik closed public comments and asked if the applicant wanted to make any closing
statements.
There were no closing statements from the applicant.
Item-Accept Easement 2105 S.Koeller St.
Motion by Perry to adopt the findings and recommendation as stated in the staff report.
Seconded by Kiefer.
Mr. Fojtik asked if there was any discussion on the motion.
There was no discussion on the motion.
Motion carried 8-0.
Item-Accept Easement 2105 S.Koeller St.
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STORMWATER & DRAINAGE EASEMENT EXHIBIT B
W__20TN__AVENUE
SOUTH RIGHT-OF-WAY
LINE OF W. 20TH AVENUE
NW CORNER
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OF LOT 4
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NE CORNER
OF LOT 4
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RIGHT-OF-WAY LINE LOT 4
OF INTERSTATE "41" CSM NO_5964
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DATE: AUGUST 28, 2019
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STORMWATER & DRAINAGE EASEMENT EXHIBIT B
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DATE: AUGUST 28, 2019
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