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HomeMy WebLinkAbout06-73.doc FEBRUARY 28, 2006 06-73 RESOLUTION (CARRIED 6-1 LOST LAID OVER WITHDRAWN PURPOSE: APPROVE AGREEMENT WITH STATE OF WISCONSIN AND DECADE'S I PIONEER INN PROPERTY INITIATED BY: DEPARTMENT OF COMMUNITY DEVELOPMENT BE IT RESOLVED by the Common Council of the City of Oshkosh that the Stipulation and Settlement Agreement between the State of Wisconsin, Decade's and the City of Oshkosh regarding construction of a new condo-hotel development on the former Pioneer Inn property and the City's development of a public trail and riverwalk related improvements on said property, is hereby approved and the proper City officials are hereby authorized to execute and deliver the agreement in substantially the same form as on file at the City Clerk's Office, 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. " December 20, 2005 STIPULATION AND SETTLEMENT AGREEMENT THIS AGREEMENT is made this - day of December 2005, by and among, The State of Wisconsin Board of Commissioners of Public Lands ("BCPL"), the Wisconsin Department of Natural Resources ("DNR"), the City of Oshkosh (the "City") and Decade'sMonthly Income and Appreciation Fund, a Limited Partnership ("Decade's"). RECITALS A. Decade's owns certain lands located in the City of Oshkosh (the "Property") shown on the attached Exhibit A which is incorporated herein by reference. BCPL currently leases to Decade's, as successor Lessee, certain lands on and adjacent to the Property pursuant to leases originally executed in 1964 and 1969 (the "Original Leases"). The Origin;:ù Leases '?'Ïth subsequent amendments are attached hereto as Exhibits B and C. DNR a;nâ a previous lessee entered into a Stipulation Agreement in 1998 (the "1998 Stipulation"). A portion of the lands subject to the Original Leases (shown in yellow and blue on Exhibit A) w~ under water at the time the Original Leases. were executed and such submerged lands were s:ubsequently filled. A portion of the footprint of the original Pioneer Inn extends onto the lands leased to Decade's by BCPL as shown on Exhibit A. Decade's wants the State of Wisconsin to release any claims it may have with respect to interests in property located landward of the original meander lines (as opposed to the ordinary high water mark). Furthennore, Decade's asserts that it has a claim to fee title ownership of some of the lands it currently leases. Decade's would like to fonnalize its rights with respect to such property so that it can proceed with construction of improvements. QBMAD\250400.20020\402261.3 ~ 4 B. BCPL asserts that it holds interests in the lands marked in yellow and blue on Exhibit A in trust for the State of Wisconsin as submerged lands. In recognition of the difficulties in defining the historical ordinary high water mark on the property, BCPL is willing to use the original meander lines as the dividing lines between fee-owned land and lands subject to the New Lease ("Leased Lands"). Furthennore, BCPL is willing to lease land to Decade's pursuant to its . statutory authority under Wis. Stat. Section 24.39(4)(a)(1) "for the improvement of navigation or for the improvement or construction of harbor facilities..." C. The City has established a TIP district that includes the Pioneer Inn and the surrounding land. The City wants to facilitate the redevelopment of the Property as a key financial component of the TIP district and as a way to draw people to the waterfront in the City. The City plans to construct a public walkway along the waterfront on portions of the Property and the Leased Lands. D. The DNR and BCPL dispute Decade's right to rebuild thé Pioneer Inn on the portion of its footprint that lies on land leased under the Original Leases or to develop any portion of the lands leased under the Original Leases that lie waterward of the original meander lines except "for the improvement of navigation or for the improvement or construction of harbor facilities." Decade's disagrees with the DNR and BCPL and believes it has a right to rebuild the Pioneer Inn on the portion of its footprint that lies on land leased under the Original Leases and to develop such land in accordance with the terìns of the Original Leases. E. The parties desire to settle their dispute and enter into this Agreement to avoid extended litigation. This is a settlement of disputed claims. NOW, THEREFORE, the parties agree as follows: QBMAD\250400.20020\402261.3 2-.. 1. Termination of Ori!!inal Leases. . The Original Leases between BCPL and Decade's shall be tenninated and neither party shall have any continuing rights or responsibilities under such Original Leases or any amendments thereto. 2. Termination of 1998 Stipulation. The 1998 Stipulation in DNR Docket 3- NE-98-0554UF between the DNR and Decade's predecessor in interest, Oly/Montclair, shall be tenninated and neither DNRrior Decade's shall have any continuing rights or responsibilities under the 1998 Stipulation. 3. The New Lease. BCPL and Decade's shall enter into a new lease which is attached hereto as Exhibit D and incorporated herein by reference (the "New Lease"). BCPL and DNR acknowledge that Decade's is the riparian owner of the lands adjacent and contiguous to the Leased Lands based upon the title commitment covering the Property attached hereto as Exhibit and incørporated herein by reference. This Agreement does not affect Decade's riparian rights associated with the Property to the extent they are exercised in accordance with the requirement for enhanced public access described in Section 5 below. 4. Reco!!nition of Meander Lines. The parties agree that the meander lines established by the original Public Land Survey in 1835, as described in attached Exhibit A, shall serve in place of the undetermined ordinary high water mark throughout the property gffected by this Agreement, and shall serve as the line of division between fee-owned land which the State will not claim an interest in and Leased Lands subject to the public trust. Nothing in this Agreement, however, shall operate to waive Decade's obligations under Wis. Stat. Chapter 30, or other laws of general application, to obtain pennits or authorizations ITom the State prior to placing fill or QBMAD\250400.20020\402261.3 3 4 structures on, or dredging, any submerged lands, for purposes of this Agreement meaning property actually covered by water, owned by Decade's. 5. Enhanced Public Access. The Parties shall work cooperatively to provide enhanced public access to and recreational uses of (i) the Leased Lands; (ii) certain parts of Decade's Property to be used for a public walkway; and (iii) certain lands located south of Decade's Property (including the breakwater area). The parties acknowledge that the present owner of those certain lands located south of Decade's Property is not a party to this Agreement and no party to this Agreement has an obligation to acquire additional.property interests to achieve such goal. However, the City shall make a good- faith effort to acquire such property south ófDecade's Property. The areas where enhanced public access and use are to be provided are shown on attached Exhibit E. The enhanced public access shall include, at a minimum, provisions for dedicated public parking South and Northwest of Decade's Property and the Leased Lands (contingent upon the City's acquisition of a portion of the Canadian National Railroad right-of-way in said area), provision of paths for pedestrian and bicycle travel, and physical access to the shore for fishing, temporary boat and/or canoe tie ups and other recreational pursuits. The City has submitted to the BCPL, DNR, and Decade's for approval, plans for the proposed physical facilities, plans for the provision of public access and use of the area (including any proposed limitations on public use or requirements precedent to use by the public), plans for future maintenance of the facilities and the documents that assure the necessary property rights to maintain public access (hereinafter "Plans/Documents"). Attached hereto as Exhibit "F" are the Plans/Documents which are hereby approved by the Parties. 6. Lakefront Easement to City, Construction o~. Decade's shall provide an easement to the City for public ingress and egress and recreational use along the Leased QBMAD\250400.20020\402261.3 LI Lands and also along a portion of the lakeftont Decade's owns in fee simple. This easement shall allow the City to connect waterftontwalkways described in SectionS above between the Leased Lands and the marina facilities. The easement area would start at the Northwestern point of the Leased Lands and continue around the perimeter of Decade's Property to the marina facilities to the South, in places traversing the Property owned by Decadè's. The easement area is marked in red on Exhibit E. The City is responsible for constructing and maintaining the easement area. The City - - shall complete the necessary acquisition and installation of public facilities as soon as reasonably possible, will commence construction of the walkway on the easement area at the same time Decade's constructs improvements on the Property, will complete that portion ofthe walkway proposed for the Property and Leased Lands 1?etween the connections for the two existing pedestrian bridges depicted in Exhibit E by the time Decade's completes its improvements and the balance ofthe walkway improvements will be completed by the City no later than 6 years from the date of the commencement of construction. The easement provided by Decade's for ingress and egress and recreational use as stated in this paragraph will limit the uses of the easement area solely for these purposes and will specifically allow the City's law enforcement personnel to remove individuals from the easement' area if they have been asked to leave the :Property or the Leased Lands due to reasons that constitute disorderly conduct under state law or City ordinance or a violation of the City's noise ordinance and the individual attempts to use the easement area to avoid removal. The other parties shall, to the extent reasonably possible, provide support to assist the City in the development of these facilities and shall not unreasonably refuse requests for state permits that may be required for the walkway. The Parties and their assignees/successors will execute and authorize any document necessary to extend the easements beyond the expiration of the New Lease which may be necessary to allow the City to maintain the walkways which are the QBMAD\250400.20020\402261.3 5 subject qfthis Agreement in perpetuity (the "Execution/Authorization Obligation"). The Execution/Authorization Obligation shall run with the land which is subject to the walkway and shall be binding upon all subsequent owners of such land. 7. Agreement To Refrain From Certain Building On Leased Lands or - - Submerged Lands Subject to the Public Trust. The original Pioneer Inn was demolished in 2004 and Decade's will not rebuild the Pioneer Inn on any Leased Lands or submerged lands -. ;.-- subject töthe public trust, and any improvements on the Leased Lands will be "for the improvement of navigation or for the improvement or construction of harbor facilities..." including the enhanced public access as more particularly described in paragraph 5 of this Agreement. Decade's may undertake construction activities and place any improvements on the Property landward of the original meander lines described in paragraph B above subject to applicable local, state and federal regulations. 8. Release of Claims by Decade's, Covenant Not to Sue. Decade's hereby releases DNR and BCPL and their respective heirs, executors, administrators, legal representatives, successors, and assigns, of and from all past and present claims, actions, obligations, costs, expenses, compensation and demands which Decade's now has or may have against DNR and BCPI:; arising under the Original Leases, the 1998 Stipulation, or the State's claim of interest in the . - Leased Lands, provided, however, that Decade's does not release its rights as a riparian in such lands. Decade's covenants not to assert ownership of the Leased Lands and covenants not to sue DNR, BCPL or the State of Wisconsin regarding ownership ofthe Leased Lands or the restrictions on use of the Leased Lands stated in the New Lease. In accordance with this release, Decade's shall immediately withdraw the Notice of Claim dated March 21,2005, and filed by Jeffrey Keierleber as General Partner of Decade Companies and as President of Decade 80, Inc., the other General QBMAD\250400.20020\402261.3 lc Partner of Decade Companies, as the General Partner of Decade's. Ifthere is a successful third party challenge to this Agreement, the Findings pursuant to Section 30.11 by the DNR, or the New Lease which results in a change to the boundaries of Decade's fee-owned uplands from the boundaries described in paragraph 4 (hereinafter the "Successful Challenge"), the release stated in this paragraph and the provisions of Paragraph 7 above will be null and void. Decade's may reinstate its Notice of Claim within 60 days of the entry of judgment of the Successful Challenge. Such reinstated Notice of Claim shall relate back to the dat~ of the original Notice of Claim, filed on March 21, 2005, and be subject to any and all defenses available to DNR and BCPL against the original Notice of Claim. In that event, the Original Leases and the 1998 Stipulation will govern the rights of the parties insofar as the Original Leases, or any agreed-upon extension, have not expired provided, however, that BCPL, DNR and Decade's agree to execute any necessary agreements reasonably required by the City to continue the Çity's walkway in the areas described in pars. 5 and 6 which agreements become necessary as a result of the Successful Challenge. 9. Release of Claims by BCPL and DNR. Covenant Not to Sue. BCPL and DNR hereby release Decade's and its respective heirs, executors, admini~trators, legal representatives,. successors, and assigns, ITom all past and present claims actions, obligations, costs, expenses, compensation, and demands which BCPL or DNR now have or may have against Decade's arising under the Original Leases, the 1998 Stipulation, or the State's claim of interest in the lands covered by the Original Leases (that are not leased under the New Lease). BCPL and DNR covenant not to assert ownership of such lands covered by the Original Leases (that are not leased under the New Lease) and covenant not to sue Decade's regarding ownership or use of such lands covered by the Original Leases (that are not leased under the New Lease). If there is a Successful Challenge to this Agreement, the Findings pursuant to Section 30.11 by the DNR, or the QBMAD\250400.20020\402261.3 I .", ,. New Lease which results in a change to the boundaries of Decade's fee-owned uplands from the bound~ries described in paragraph 4, the release stated in this paragraph will be null and void. In that event, the Original Leases and the 1998 Stipulation will govern the rights of the parties insofar as the Original Leases, or any agreed-upon extension, have not expired provided, however, that BCPL, DNR and Decade's agree to execute any necessary agreements reasonably required by the City to continue the City's walkway in the areas described in pars. 5 and 6 which agreements become necessary as a result of the Successful Challenge. 10. No Admission or Precedent. Nothing contained in this Agreement shall be used in any legal action other than in all enforcement action brought with respect to this Agreement, the New Lease, the Findings Pursuant to Wisconsin Statutes Section 30.11 by the DNR, or an action brought by a third party challenging this Agreement, the New Lease, or the Findings Pursuant to Wisconsin Statutes Section 30.11 by the DNR, or if the releases stated in this Agreement are nullified due to a Successful Challenge. 11. Enforcement. Enforcement of this Agreement may be done by proceedings at law or in equity against any party violating or attempting or threatening to violate any tenn or . condition of this Agreement. Such proceedings may be brought to restrain or prevent any violation or to óbtain any other permissible relief If a suit is brought to enforce this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys fees from the nonprevailing party. 12. Effective Date. This Agreement shall become effective upon the execution by all of the undersigned. 13. Miscellaneous. QBMAD\250400.20020\40226 1.3 3' <, a. Entire A!!reement/Amendment/Bindin!! Effect. This Agreement contains the entire understanding by and among the parties regarding the settlement of all claims arising under the Original Leases and the ownership of lands leased pursuant to the Original Leases and ownership of the Leased Lands. No amendment, modification, or alteration of the terms ofthis Agreement shall be binding unless it is in writing, dated subsequent to the date of this Agreement and duly executed by all the parties. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns. b. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. c. No Waiver. Any failure of any party to comply with any obligation, covenant, agreement, or condition herein may be waived only by written notice by the party entitled to the perfonnance of such obligation, covenant, or agreement or who has the benefit of such condition. However, the failure of any party at any time or times to require perfonnance of any provision of this Agreement shall in no manner affect the right at a later time to enforce that provision. No waiver by any party of any breach of any tenD contained in this Agreement, whether by conduct or otherwise, in anyone or more instances, shall be deemed to be or construed as a further or continuing waiver of any such breach or a waiver of any other tenD contained in this Agreement. d. Governin!! Law/Jurisdiction/Service of Process. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin. The QBMAD\250400.20020\402261.3 9' ..' '" parties agree that any action regarding this Agreement shall be brought in Winnebago County Circuit Court and the parties further agree that such court has personal and subject matter jurisdiction. e. Notices. Any notice given under this Agreement shall be in writing and shall be delivered personally or sent by certified mail, postage prepaid to the address of the party noted below: To the BCPL: To the DNR: To the City: To Decade's: QBMAD,?50400.20020\402261.3 Jó "-. f. Captions/Gender and Number. The captions in this Agreement are solely for convenient reference and shall not be deemed to affect the meaning or interpretation of any article, section, or paragraph. All personal pronouns used in this Agreement shall include the other gender whether used in the masculine or feminine or neuter gender, and the singular shall include the plural whenever and as often as may be appropriate. g. Further Assurances. The parties agree that they shall deliver all further documents and do all further acts necessary and desirable to consummate the transaction contemplated by this Agreement.- h. No Presumption. This Agreement or any section of this Agreement shall not be construed against any party due to the fact that this Agreement or any section of this Agreement was drafted by or on behalf of said party. 1. No Reliance On Other Representations. By their signatures below, the parties to this Agreement hereby certify, each to the other, that prior to signing this Agreement, each party has read this Agreement and fully understands its tenus. Each party executes this Agreement without any reliance on any representations made by any other party, except for those representations contained in this Agreement. J. Certification. Each individual executing this Agreement certifies that he or she has authority to execute this document on behalf ofthe entity he or she is signing for. k. Severability. In the event that any portion of this Agreement should be invalid under applicable law, then such portion is to be modified in the letter and spirit of this Agreement, to the extent pennitted by applicable law so as to be rendered valid. Any portion of QBMAD\250400.20020\402261.3 \\ ~ -'"' this Agreemen~ which is invalid under applicable law shall not render this Agreement or any part thereof invalid, except as described in paragraphs 8 and 9, but such invalid portion shall be inapplicable until the parties hereto have made appropriate changes in accordance with applicable law to achieve the spirit of the invalid provisions. CAUTION: READ THIS DOCUMENT COMPLETELY BEFORE SIGNING AS IT AFFECTS LEGAL RIGHTS YOU MAY HAVE AND CONTAINS A RELEASE OF . CLAIMS. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as ofthe date written on page 1 of this Agreement. Decade's: Decade's Monthly Income and Appreciation Fund, a Limited Partnership By: , General Partner City of Oshkosh By: Wisconsin Board of Commissioners of Public Lands By: Wisconsin Department of Natural Resources By: QBMAD\250400.20020\40226 1.3 )?- ", '" UJ I- - cc - I >< UJ :"< ... "EXHIBITF" Riverwalk System Maintenance Plan As a looped riverwalk trail system is developed along the Fox River between the new Wisconsin Street bridge and Lake Winnebago (including the trail to be developed on and adjacent to the Pioneer Resort & Marina property), the City of Oshkosh will provide for maintenance and upkeep of the facility. Maintenance activities will include: . Periodic cleaning and snow removal. . Upkeep of installed landscaping and landscape features. . Litter pickup and control. . Repair of damage to walkway surfaces. . Replacement of bulbs where decorative light standards are installed.