HomeMy WebLinkAbout33. 20-298 JUNE 23, 2020 20-298 RESOLUTION
(CARRIED 7-0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE LAND EXCHANGE AGREEMENT WITH UNITED
COOPERATIVE FOR ECONOMIC DEVELOPMENT
ADMINISTRATION SOUTHWEST INDUSTRIAL PARK PAVING
PROJECT
INITIATED BY: COMMUNITY DEVELOPMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh that a land
exchange between United Cooperative and the City of Oshkosh for properties on
Clairville Road and Outlot 1 in the Southwest Industrial Park, as noted on the attached
map, for dedication of public right-of-way along Clairville Road and rail spur
development in Outlot 1, is hereby approved.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized and directed to execute and
deliver the agreement in substantially the same form as attached, any changes in the
execution copy being deemed approved by their respective signatures, and said City
officials are authorized and directed to take those steps necessary to implement the terms
and conditions of the Agreement.
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Oshkosh
TO• Honorable Mayor and Members of the Common Council
FROM. Kelly Nieforth, Economic Development Services Manager
DATE: June 18, 2020
RE. Approval of Land Exchange Agreement with United Cooperative for Economic
Development Administration Southwest Industrial Park Paving Project
BACKGROUND
City staff has been working with a consultant on plans for the Southwest Industrial Park
paving and street construction project as part of the $1.5 million dollar Economic Development
Administration (EDA) grant that the city received. While reviewing the plans for the new
access location for Transit Way onto Clairville Road, it became apparent that additional right-
of-way (ROW) was needed for safety purposes to improve the truck turning movements and
handle the anticipated traffic on Clairville Road. United Cooperative, located on Clairville
Road and in the Town of Algoma, has been working with the city for over a year on obtaining
city industrial park property along the railroad so they could build additional spurs to help
support their business growth. The parcel that United is located on is scheduled to be attached
to the city in 2023 per the Cooperative Plan Between the City of Oshkosh and the Town of Algoma.
The city coordinated discussions with United Co-op and Illinois Cement (who recently
purchased property from the city located just north of United's desired parcel) and worked
together to allocate rail frontage for United and at the same time, allow Illinois Cement to
operate their business and have room for expansion. During those discussions, United was
going to purchase the property when United was ready
When approached by the city, representatives from United were receptive about completing a
land exchange where United would dedicate the ROW that the city needs, and the city would
convey the city property along the railroad to United that they hoped to purchase for their
business expansion. United will dedicate roughly 17' of their property along Clairville as ROW
which is approximately 25,000 sq ft. In return, the city will convey the city property along the
railroad which is 32,104 sq ft. In addition to the ROW that United is dedicating, they are
removing their northernmost driveway on Clairville Road and relocating it to Transit Way
which will also enhance the vehicular safety on Clairville Road as well.
City Hall.215 Church Avenue P O. Box 1130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh wi.us
ANALYSIS
The proposed land exchange will immediately allow the city to improve the vision triangle
safety on Clairville Road near the new Transit Way intersection. Constructing an intersection
that allows for multiple trucks to make movements in and out of the park with ease will
improve the functionality of the city's industrial park. The land exchange will also allow the
city to plan for the future when Clairville Road must be reconstructed and brought up to city
standards. When future staff and councilors decide to complete the reconstruction, the city will
already have the additional ROW needed under city control and have the driveway relocated
to a location that meets city standards. Improving the safety and access on Clairville Road to
the city's industrial park and transload terminal is critical to the growth of the industrial park.
The Land Exchange Agreement is the first step in the process to dedicate United's property as
ROW. Should the Land Swap Agreement be approved by Council, the next step would be for
United to sign the petition to voluntary attach the portion of their property that will be
dedicated as ROW to the city and then at the next Council meeting, we will ask that Council
waive the second reading for the voluntary attachment and approve the attachment at during
the first reading. At the Council meeting after that, the ROW will be dedicated via a Certified
Survey Map (CSM).
Below is the planned schedule:
June 23rd—Council approves Land Exchange Agreement
July 14th —City conveys city property to United, Council waives second reading for attachment
and approves voluntary attachment to the city
July 21st—Plan Commission approves ROW dedication
July 28th—Council approves ROW dedication
FISCAL IMPACT
The City received a $1.5 million dollar EDA grant for the project and budgeted $1.5 million as
the city match. The project is located in TID #23. The cost to acquire ROW in or near the
Southwest Industrial Park is typically more than $0.80 per square foot.
RECOMMENDATION
The Oshkosh Common Council approves the Land Exchange Agreement with United
Cooperative.
Respectfully Submitted, Approved.
Kelly Nieforth --- Mark A. Rohloff
Economic Development 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
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City-owned Outlot 1 in the
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United Cooperative property �" f{
on Clairville Road to be
dedicated as public right-of-way r
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The City of Oshkosh creates and maintains GIS maps and data for its own use. They may show the
approximate relative location of property, boundaries and other feature from a variety of sources. Printing Date:6/18/2020
These map(s)/datasets are provided for information purposes only and may not be sufficient or Os h koS h
appropriate for legal, engineering, or surveying purposes. They are provided "AS-IS' without Prepared by: City of Oshkosh,WI
warranties of any kind and the City of Oshkosh assumes no liability for use or misuse.
LAGIS_Maps\Engineering Base Map.mxd
Land Exchange Agreement
This Land Exchange Agreement("Agreement") is made as of this day of
2020, by and between United Cooperative("United"), a Wisconsin corporation and the
City of Oshkosh ("City").
WHEREAS,United is the owner of the real property legally described as Parcel#X as described in
CSM #X along Clairville Rd. ("Parcel 1"); and
WHEREAS,the City is the owner of the real property legally described as Outlot 1 in CSM#7469
("Parcel 2").
WHEREAS,the City and United wish to exchange their properties under the terms and conditions
set forth herein.
1. DEFINITIONS. Parcel 1 and Parcel 2 are sometimes individually referred to hereinafter as the
"Exchange Property" or collectively as the"Exchange Properties."
A party who is intending to convey title to an Exchange Property at Closing is sometimes
referred to hereinafter as"Grantor Party"and a party who is intending to accept title to an
Exchange Property at Closing is sometimes referred to hereinafter as"Grantee Party."
2. THE EXCHANGE TERMS. United and the City acknowledge that Parcel 1 and Parcel 2 are of
like kind and equal value and are exchanged in As-In condition. United will convey Parcel 1 to
the City and the City will convey Parcel 2 to United. The City agrees to convey its fee interest
in Parcel 2 to United in return for United's conveyance to the City of its fee interest in Parcel 1,
with such mutual conveyance acknowledged by both parties as full and fair consideration. At
Closing, both parties will execute and deliver a general warranty deed conveying marketable
title to the Exchange Properties. The general warranty deeds will be free and clear of all liens
and encumbrances, except:
2.1 Municipal and zoning ordinances and agreements entered into under them;
2.2 Recorded easements and other restrictions of record;
2.3 Recorded building and use restrictions and covenants;
2.4 General taxes levied in the year of closing;
2.5 Dedications or rights of ways;
2.6 Title exceptions which have been accepted or waived by either party in
writing;
2.7 Other: _
3. DEDICATIONS AND EASEMENTS. After the date of this Agreement, but prior to Closing,
Grantor Party shall not dedicate, gift,transfer, mortgage or convey any interest in Grantor
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Parry's Exchange Property without consent from Grantee Party,which may be withheld for any
reason.
4. VOLUNTARY ATTACHMENT PETITION. On or before July 1,2020,United shall sign a
Voluntary Attachment Petition and the Temporary and Permanent Zoning Petition in order for
Parcel 1 to be attached to the City. The City shall prepare both Petitions at the City's expense.
United may note any issues it deems relevant that are located within the Petitions which are
unrelated to the Voluntary Attachment Petition and Temporary and Permanent Zoning Petition,
but shall have no objections to any action related to the actual Voluntary Attachment Petition or
the Temporary and Permanent Zoning Petition.
5. RIGHT-OF-WAY (ROW)DEDICATION. On or before July 6", 2020, United shall sign a
Certified Survey Map(CSM)to dedicate Parcel 1 as Right-of-Way. United acknowledges
Parcel 1 will be used for dedicated Right-of-Way(ROW)for the City. The CSM shall be
prepared by the City at the City's expense. United may note any issues it deems relevant on the
CSM which are unrelated to the dedication of Parcel 1 as Right-of-Way,but shall have no
objections to any action related to the actual dedication of Parcel 1 as Right-of-Way.
6, TEST. The City and United shall each have the right for thirty(30) days after the date of this
Agreement, at each parry's own expense,to undertake an environmental audit, a professional
wetlands delineation, professional floodplain analysis, survey, grading and soil tests
(collectively"Tests") on the Exchange Property each party is to receive. The Grantor Party
shall, upon the execution of this Agreement, promptly furnish to the Grantee Party, any and
all documents or reports which each party has in its possession which cover all or any
portion of the Exchange Property to be conveyed with regard to any previous Tests.
Grantor Party shall allow Grantee Party and its representatives and agents reasonable access
onto the Exchange Property to conduct such Tests. Grantee Party agrees to indemnify, defend
and hold Grantor Party harmless against all claims for injuries to persons on or damage to the
Exchange Property caused by the Grantee Party and its agents, or caused by the Tests.
Grantee Party shall have thirty (30) days after the date of this Agreement to notify Grantor
Party, in writing, that a licensed professional has reviewed the results of the Tests and has
determined and concluded either that the Exchange Property to be received may be subject to
wetlands protection under federal or state laws or regulations, or that the Exchange Property to
be received is otherwise not conducive or suitable for Grantee Party's intended uses based upon
the Tests. If the Exchange Property is subject to wetlands protection and/or not suitable for
Grantee Parry's intended use of the Exchange Property, Grantee Party will furnish Grantor
Party with a certified copy of the professional's determination and copies of any relevant tests
and conclusion that the Exchange Property is unsuitable. In the event Grantee Party notifies
Grantor Party of the above within such thirty (30) day period, Grantee Party shall have ten
(10) days from the date of notice of the test results to declare this Agreement null and void
and if this option is exercised, then the parties shall have no further obligations under this
Agreement.
7. TITLE INSURANCE. United is entitled to review and approve of a Title
Commitment and Policy for the Exchanged Real Property.
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5.1 The City,at its expense,shall furnish and deliver to United for examination a current
Title Insurance Commitment,ALTA Form issued by a Title Insurance Company selected by
the City.
5.1.1 The City will provide United with a copy of the Title Insurance Commitment
at least twenty(20)business days before the Closing date.
5.1.2 United will notify the City in writing of any objections to any condition of
title not otherwise permitted by this Agreement within five (5) business days after
receiving the Title Commitment.
5.1.3 The City will notify United in writing within two (2) business days after
receipt of the objections whether or not the City intends to make efforts to eliminate
the title defect or otherwise resolve the Buyer's objections. The City retains the sole
discretion to attempt, or to not attempt, resolution of objections to any condition of
title.
5.2 The Title Insurance Commitment shall indicate that an owner's policy is in the
condition called for in this Agreement will be issued to United upon recording of the
warranty deed conveying the Real Properties.
5.3 The owner's policy shall be subject only to restrictions or encumbrances described
in this Agreement, or to those restrictions or encumbrances approved in writing by United.
5.4 The premium (if applicable)for the owner's policy shall be paid by the City before
or at closing. However, United shall pay all costs of providing title evidence required by
United's lender.
5.5 In the event the City elects to attempt to resolve United's objections,the parties will
negotiate a new closing date in good faith. The City will thereafter exercise reasonably
expeditious efforts to correct the title condition within 30 days or less.
5.6 If the condition of title is not corrected within 30 days,United may, at its option,(1)
declare its obligation to exchange the Real Properties be null and void; or (2) elect to
accept title in the condition as the City can convey and proceed to closing without
abatement.
5.7 Actual conveyance of the Real properties shall be deemed the acceptance by United
of the condition of the title as of the date of closing.
8. TAXES. Real Estate taxes on the Exchange Property prior to the date of Closing shall be paid
by Grantor Party. Real estate taxes on the Exchange Property after the date of Closing shall be
paid by the Grantee Party. The taxes for the year of the date of Closing shall be prorated based
upon the then most current property valuations and upon the most current tax rate as determined
by law.
9. CLOSING. Closing shall occur within forty-five(45)days from the date of this Agreement.
10. RISK OF LOSS.Risk of loss or damage to the Exchange Properties shall rest with Grantor Party
until the time of exchange.
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1 1. NO REAL ESTATE COMMISSION AND FINDER'S FEE. The parties agree that no party
hereto shall be liable for any real estate broker's commission, agent's commission, or finder's
fee, in connection with the transaction contemplated by this Agreement. Each party warrants to
the other party that it shall indemnify and hold harmless for any and all claims of any person for
broker's or agent's commissions or finder's fees in connection with this transaction.
12. CONDITION OF EXCHANGE PROPERTY. Grantor Party acknowledges that its
representatives or agents have examined the Exchange Properties prior to entering into this
Agreement. This Agreement is based upon Grantee Parry's inspection of the Exchange Property
and not upon any representation or warranties or conditions by Grantor Party's agents. Grantee
Party acknowledges Grantor Party is conveying the Exchange Property on an "as is"
basis, except for the warranties and representations as provided in this Agreement and the
warranties in the general warranty deed
13. DEFAULT. Time is agreed to be of the essence. In the event either party fails to comply with
any of the material terms hereof, then the other party may declare a default and seek only
specific performance.
14. ASSIGNMENT. In the case of the assignment of this Agreement by either of the parties,prompt
notice shall be given to the other party, who shall at the time of such notice be furnished with a
duplicate of such assignment by such assignors. Any such assignment shall not terminate the
liability of the assignor to perform, unless a specific release in writing is given and signed by the
other party to this Agreement.
15. SEVERABILITY. If any non-economic mutual term or provision of this Agreement or the
application thereof to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or unenforceable shall
not be affected thereby, and each term and provision of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
16. FURTHER ASSURANCES. Each undersigned party will, except as otherwise provided
herein, whenever it shall be necessary to do so by the other, promptly execute, acknowledge,
and deliver,or cause to be executed,acknowledged,or delivered,documents as may be necessary
or proper to effectuate the covenants, contingencies and agreements herein provided. United
and the City agree to use their best efforts in cooperation to carry out the intent of this
Agreement and to provide quality and efficient development sites for both United and the City.
17. INTERPRETATIONS. Any uncertainty or ambiguity existing herein shall not be interpreted
against either party because such party prepared any portion of this Agreement, but shall be
interpreted according to the application of rules of interpretation of contracts generally.
18. CONSTRUCTION. Whenever used herein including acknowledgments, the singular shall be
construed to include the plural, the plural the singular, and the use of any gender shall be
construed to include and be applicable to all genders as the context shall warrant.
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19. NON-MERGER. All representations and warranties made herein are intended to survive
Closing and shall not be merged in the deed unless otherwise stated in this Agreement. This
Agreement shall not be canceled at Closing.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties relating
to the transaction contemplated hereby, and all prior or contemporaneous agreements,
understandings, representations, warranties and statements, oral or written, are merged herein.
This Agreement cannot be modified or altered unless reduced to writing and consented to by all
the undersigned parties.
21. NOTICE AND DEMANDS. Notice, demand, or other communication mandated by this
Agreement by either party to the other shall be sufficiently given or delivered if it is sent by
registered or certified mail, postage prepaid, return receipt requested, or delivered personally at
the address stated above.
22. EXECUTION IN COUNTERPARTS. This Agreement may be executed in two or more
counterparts,each of which shall be an original but all of which shall constitute one and the same
instrument.
23. GOVERNING LAW. All aspects of this Agreement shall be governed by the laws of the
State of Wisconsin.
24. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, legatees, devisees, personal
representatives, successors and assigns.
25. TIME IS OF THE ESSENCE. The parties agree time is of the essence under this Agreement.
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"United"
United Cooperative
By:_ aj
-
Y•'P
Representative of' f..inited Cooperative
"City"
City of Oshkosh
By:
Mark A. Rohloff, City Manager (Witness)
And: —
Pamela R. Ubrig, City Clerk (Witness)
APPROVED:
City Attorney
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