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Home My WebLink AboutMcClone Downtown Development AGREEMENT THIS AGREEMENT is made and entered into this Jdc~;~ day of September, 2003, by and among the CITY OF OSHKOSH, a Wisconsin municipal corporation (the "City"), WAUKAU, LLC, a Wisconsin limited liability company ("Waukau") and MC CLONE DOWNTOWN DEVELOPMENT, LLC, a Wisconsin limited liability company ("McClone"). RECITALS 1.01 Waukau is the owner of certain real estate designated as City of Oshkosh tax parcel numbers 13-2960 and 13-2961 and legally described in Exhibit A of this Agreement (the "Waukan Property"). 1.02 McClone is the owner of certain real estate designated as City of Oshkosh tax parcel number 1365000000 and legally described in Exhibit A of this Agreement (the "McClone Property"). 1.03 The Waukau Property and McClone Property are adjacent to one another and are proposed to be served by the extension of a sanitary sewer main running from the existing sanitary sewer main and lift station on Washburn Street to a point on the McClone Property designated as manhole S4, as more fully described in the plans and specifications attached as Exhibit B of this Agreement (the "Sanitary Sewer Extension"). 1.04 The parties are entering into this Agreement for the purpose of setting forth each party's obligations with respect to the design, bidding, construction and payment for the Sanitary Sewer Extension. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreement contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 2.01 Recitals. The foregoing recitals are adopted by the parties, incorporated herein and made a part of this Agreement. 2.02 Description of Sanitary Sewer Extension. The Sanitary Sewer Extension shall consist of a twenty-one (21) inch interceptor sewer designed to serve the McCLone Property, the Waukau Property and other undeveloped lands to the south and west of the McClone Property, as more fully described in the plans and specifications attached as Exhibit B of this Agreement. 2.03 Desima of Sanitary Sewer Extension. Waukan shall arrange for the design of the Sanitary Sewer Extension by Davel Engineering. The design of the Sanitary Sewer Extension shall comply with the design parameters, specifications and requirements established by the City. The final plans and specifications developed by Davel Engineering shall be submitted to all parties for approval before the preparation of the bidding documents. 2.04 Bidding of Sanitary Sewer Extension. Upon the approval of the final plans and specifications for the Sanitary Sewer Extension, the City and Davel Engineering shall cooperate in the preparation of the documents necessary to bid the Sanitary Sewer Extension as a public works project of the City. The formal solicitation of bids shall be handled by the City in the usual and customary manner for public works projects of the 2.05 2.06 2.07 2.08 City ora similar nature and shall be undertaken and completed as soon as reasonably possible. The final determination with respect to the award of the contract for the Sanitary Sewer Extension shall be made by the City. Supervision of Construction. The construction of the Sanitary Sewer Extension shall be supervised by the City to insure that the Sanitary Sewer Extension complies with the plans and specifications. The City shall not be required to accept the Sanitary Sewer Extension until it has reasonably determined that the Sanitary Sewer Extension has been properly constructed and conforms with the plans and specifications. Cost of Sanitary Sewer Extension. The parties acknowledge that the City did not include the Sanitary Sewer Extension in its current capital improvements budget and does not currently have the available funds necessary to pay the cost of the Sanitary Sewer Extension. Waukau and McClone shall initially pay all design costs, engineering fees, bidding costs, construction costs and other costs related to the design, bidding and construction of the Sanitary Sewer Extension, including usual and customary charges by the City in connection with projects of the same or a similar nature. An itemized statement of such costs shall be provided to each of the parties. All costs related to the design, bidding and construction of the Sanitary Sewer Extension shall ultimately be apportioned between the parties in a manner which results in McClone paying an amount equal to the cost McClone would have incurred to construct a ten (10) inch sewer main in the same location as the Sanitary Sewer Extension, the City paying the cost of oversizing the Sanitary Sewer Extension from the ten (10) inch sewer main McCIone would have been required to provide to the twenty-one (21) inch sewer main required by the City to serve other properties in the future and Waukau paying the cost of the sewer main running from the Sanitary Sewer Extension to the Waukau Property. Any dispute between the parties with respect to the apportionment of the costs shall be resolved pursuant to Section 2.13 of this Agreement. The City agrees to include its portion of the costs of the Sanitary Sewer Extension in its next capital improvement budget and to reimburse Waukau and McClone for their respective shares of the funds advanced on behalf of the City as soon as the budgeted funds become available. Security For Payment. Wattkau and McClone shall escrow such funds as may be reasonable required by the City to insure payment of all costs related to the sewer extension. The escrowed fimds shall be deposited in an escrow account established and controlled by the City. Dedication of Rieht of Way and Easements. McClone shall dedicate the road right of way in which the Sewer Extension is to be constructed by certified survey map prior to the construction of the Sanitary Sewer Extension, as sho~vn on the proposed certified survey map of the McClone Property attached as Exhibit C of this Agreement. McClone shall also grant an easement for the extension ora sewer main from the Sanitary Sewer Extension to the Waukau Property, as shown on the plans and specifications attached as Exhibit B of this Agreement. The documents dedicating the right of way and easements shall be in a.form satisfactory to the City. McClone acknowledges that the City has advised McClone that it will be acquiring an additional parcel of land in the future for the replacement of the existing sanitary sewer lit~ pump station. The parcel acquired ~vill be approximately one hundred thirty (130) feet by one hundred thirty (130) feet and will be part of the east one hundred thirty (130) feet of Lot 2 of the proposed certified survey map of the McClone Property attached as Exhibit C of this Agreement. The exact location, dimensions, purchase price and other terms 0fthe acquisition will be determined at the time the parcel is acquired by the City. 2 2.09 2.10 2.11 2.12 2.13 2.14 2.15 Notices. Ali notices, demands, statements, elections, options and other instruments required or permitted to be given or made by either party upon the other by the terms of this Agreement shall be in writing and shall be deemed to have been sufficiently served if sent by certified mail or registered mail with proper postage prepaid to a party at the addresses set forth in this Agreement or such other address as either party may hereafter designate in writing to the other party. Complete Agreement. This Agreement (includir~g all Exhibits attached hereto) constitutes the complete Agreement between the parties with respect to its subject matter and supersedes any and all prior agreements, statements or representations, either oral or written. No change, modification, or addition to this Agreement shall be valid unless in writing signed by or on behalf of all parties to this Agreement. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin. Severabilitv. If any term of this Agreement is held by a court of competent jurisdiction to be invalid and unenforceable, then this Agreement, including all other remaining terms, shall remain in full force and effect as if such invalid or unenforceable term had never been included. Arbitration of Disputes. The parties agree to use their best efforts to amicably resolve any dispute arising out of, or in any way related to, the interpretation, implementation or per~brmance of this Agreement. Any dispute that cannot be amicably resolved shall be settled by final binding arbitration. Each party shall submit a list of three (3) acceptable arbitrators, which must be active or retired attorneys. The parties shall attempt to select one (1) individual to act as arbitrator from the lists submitted by the parties. If the parties do not agree on a single arbitrator from such lists, then each party shall select one (1) arbitrator from its list to select the arbitrator. If one of the parties fails to follow the procedure required by this Section, then the other party may resort to judicial assistance for the purpose of selecting an arbitrator, and for that purpose only. The parties agree to be equally liable for the costs and expenses of any arbitrator or arbitrators. The decision of any arbitrator shall be binding upon the parties and may be entered as a judgment in any court of law. No party shall resort to any legal action under this Agreement, but rather shall be bound by the arbitrator's decision. The parties waive any objections to the procedm'es set forth in this Agreement based upon statutory provisions related to arbitration or alternate dispute resolution. Nothing contained herein shall be construed to prohibit or limit the right of a party to seek judicial enforcement of an arbitration award or injunctive relief or a decree of specific performance. Any arbitration hereunder shai1 be conducted in Winnebago County, Wisconsin. Binding Effect. This Agreement shall be binding upon and inure to benefit of each of the parties and their respective successors, transferees and assigns. Reading and Understanding. Each person executing this Agreement on behalfofa party acknowledges and represents to the other party that he or she has read each and every section of this Agreement and that he or she has had the opporttmity to ask any questions that he or she may have with respect to this Agreement, or any part of it. Each such person also acknowledges and represents that he or she fully understands each and every provision of this Agreement and that the party on whose behalf he or she is executing this Agreement will be fully bound by it. 3 1N WITNESS WHEREOF, the parties have set their hands and seals on the day and year first written above. Pamela R. Ubrig, City C1 CITY OF OSHKOSH Richard A. Wo ang , ci y Manager WAUKAU, LLC I hereby certify that me necessary provisions have been made to pay the liability which will accrue under this contract. L~,~ c,~ ~-/ .... City Comptroller APPROVED By: MC CLONE DOWNTOWN DEVELOPMENT, LLC This Agreement Was Drafted By: Attorney Russell J. Reft 217 Ceape Avenue, P.O. Box 1190 Oshkosh, WI 54903-1190 4 Exhibit A Legal Description of Waukau Property Legal Description: That part of the North West 1/4 of the NORTH EAST i/4 and the South West I/4 of the NORTH EAST 1/4 &Section 4, Township 17 North, Range 16 East, Town of Nekimi, Winnebago County, Wisconsin, bonded and described as follows: Commencing at the North 1/4 corner of said Section 4; thence north 89 degrees 23 minutes 11 seconds east, 335.00 feet, along the North line of the North East I/4 of Section 4, to the East line of Certified Survey Map Number 1885 as recorded in Volume 1 of Certified Survey Maps on Page 1885 and to the point of beginr~ng; thence continuing north 89 degrees 23 minutes 11 seconds east, 60.00 feet, along said North line, to the West line of Certified Survey Map Number 2I 94 as recorded in Volume 1 of Ce~fied Survey Maps on Page 2194; thence south 00 degrees 50 minutes 51 seconds east, 613.81 feet, along said West line, to the South llne of said Certified Survey Map; thence north 89 degrees 23 minutes 11 seconds east, 150.00 feet, along said South line, to the East line of said Certified Survey Map; thence north 00 degrees 50 minutes 51 seconds west, 613.81 feet along said East line, to the North line of the North East 1/4 of Section 4; thence north 89 degrees 23 minutes 11 seconds east, 473.00 feet, along said North line, to the W6st line of those lands described in Document Number 721212; thence south 00 degrees 50 minutes 51 seconds east 245.00 feet, along said West line, to the South line of said described lands; thence north 89 degrees 23 minutes 11 seconds east, 141.75 feet, along said South line, to the East line of said described lands; thence north 00 degrees 50 minutes 51 seconds west, 245.00 feet, along said East line, to the North line of the North East 1/4 of Section 4; thence north 89 degrees 23 minutes 11 seconds east, 186.01 feet along said North line, to the East line of the West 1/2 of the North East 1/4 of Section 4; thence south 00 degrees 52 minutes 52 seconds east, 2648.85 feet, along said East line, to the North line of the South 6 rods of the West 1/2 of the North East 1/4 of Section 4; thence south 89 degrees 03 minutes 46 seconds west, 1347.30 feet, along said North line, to the West line of the North East 1/4 of Section 4; thence north 00 degrees 50 minutes 51 seconds west, 2217.66 feet, along said West line, to the South line of Certified Survey Map Number 1885; thence north 89 degrees 23 minutes 11 seconds east, 335.00 feet, along said South line, to the East line of said Certified Survey Map; thence north 00 degrees 50 minutes 51 seconds west, 438.80 feet, along said East line, to the point ofbegirming. Legal Description of McClone Property Being all of Lot Four of Certified Survey Map No. 4802 as recorded in Volume 1 of Certified Survey Maps on Page 4802, located in the Northeast 1/4 of the fi'actionaI Northeast 1/4 of Section 4, Township 17 North, Range 16 East, 13th Ward, City of Oshkosh, Winnebago County, Wisconsin. Graphic Scale Waukau _R~ad_ Hunters Ridge City of Oshkosh, Winnebago County, WI For: Midwest Real Estate Development CO., I~c, Sanitary Sewer Layout '~ DAVEL ENGINEERING, INC. EXHIBIT C CERTIFIED SURVEY M~P NO. BEING ALL OF LOT 4 OF CERTIFIED SURVEY MAP NUMBER 4802 AS RECORDED IN VOLUME 1 OF CERTIFIED SURVE"f MAPS ON PAGE 4,802. LOCATED IN THE NORTHEAST I/4 OF THE FRACTIONAL NORTHEAST 1/4 OF SECTION 4, TOWNSHIP 17 NORTH. RANGE 16 EAST, 1.TI'H WARD. Cf'Pr' OF OSHKOSH. WINNEBAGO COUNTY. WISCONSIN. NORTH LINE OF THE FRACTIONAL 'NORTHEAST 1/4 OF SECTION 4-17-16 NORTHEAST CORNER S89"02'52"E LOT $ 2642.19' SECTION 4--17-16 7 j SECTION 33--18-1§ ' NO'CE.S: I -<'- SEE sH~ 4 oP 4 SH~TS ~-- ~ .REbellIONS PROHIB~ {MPRO~ME~S. ~o ~ s[¢ SH[~ 4 OF ~ SH~.---- B38.01 ' 50' HIGHWAY ~ ~z~o' LOT l 74.17 S89'21'56'E 439.34 C8 NBg'21'Se"W , ~ 459,34 C~ LOT ~ 310,397 ~.~.~ N89'21 '56~ 600.~' LEGEND: · = 3/4" X 2~" SOLED ROUND lEON R~AR ~, WEIGHING 1.502 ~S. PER ~ = 3/&" IRON R~ FOUND ~ = BER~SEN MONUME~ FOUND ~ = CORNER IS OBLIgaTED ~ -x-= ~I~ING FENCE ~ G~p~[c S~LE: 1" = 200' 100 500 2 6 0 200 400 FU',N~.OAN REV TRUST rlN'rAN/C~O WISCONSIN DEFAETME~ OF T~NSPORTATIONI NO.: I NORTH iS REFERENCED TO ~OS[ B~RINGS SHOWN ON CERTIFIED ~U~ MAP NUMBER 48o2 AS RECORDED ~N VOLUME 1 OF CERTIFIED SU~ ~PS ON PAGE 4BO2, THOMAS F. HALVERSON, RLS-14¢5 DATED CAROW LAND SURVEYING CO.. INC, 1857 W, WISCONSIN AVE., P,0. BOX 1297 APPLETON, WISCONSIN 54912-1297 PHONE: (920)731-4168 A017.73-03 (RDD) 5-14,-03 SHEET 1 OF 4 SHEETS