HomeMy WebLinkAboutMcClone Downtown Development 06
AGREEMENT
THIS AGREEMENT is made and entered into as of the ~8rb.. day of M ctfCh
2006~ by and between McClone Downtown Development, LLC, a Wisconsin limited liability
company ("McClone") and the City of Oshkosh, a Wisconsin municipal corporation (the "City").
I. RECITALS
1.01 McClane is the owner of the following described real estate depicted in the copy of
Certified Survey Map No. 5370 attached as Exhibit A of this Agreement ("Lot 2"):
Lot 2 of Certified Survey Map No. 5370 filed in the office of the Register of Deeds for
Winnebago County, Wisconsin in Volume I of Certified Survey Maps on page 5370, as
Document No. 1286712; being all of Lot 4 of Certified Survey Map Number 4802 as
recorded in Volume I of Certified Survey Maps on Page 4802~ located in the Northeast
1/4 of the fractional Northeast 1/4 of Section 4, Township 17 North, Range 16 East, 13th
Ward, City of Oshkosh, Winnebago County~ Wisconsin.
1.02 The City has installed a sanitary sewer lift station within the portion of Lot 2 designated
as "Sanitary Sewer Easement dedicated to the City of Oshkosh" on Exhibit A.
1.03 The City anticipates that the installation of a larger sanitary sewer lift station will be
required in the future and desires to acquire an additional portion of Lot 2 for the purpose
of the future construction of the sanitary sewer lift station.
1.04 McClone desires to have any future sanitary sewer lift station located in the Northwest
comer of Lot 2 to facilitate the future development of Lot 2.
1.05 McClane has agreed to convey a parcel in the Northwest comer of Lot 2 to the City~ grant
the City a sanitary sewer easement from the current location of the sanitary sewer lift
station to the parcel conveyed to the City and make a cash payment to the City in
exchange for the agreement of the City to construct any future lift station in the
Northwest comer of Let 2 and pay all future costs related to the relocation and
construction of the future sanitary sewer lift station.
1.06 McClone and the City are entering into this Agreement for the purpose of more fully
setting forth the terms of their agreement with respect to the relocation and construction
of the future sanitary sewer lift station.
II. RECITALS
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
2.01 Recitals. The foregoing recitals are adopted by the parties, incorporated herein by
reference and made a part of this Agreement.
2.02 Relocation of Future Sanitary Sewer Lift Station. The City agrees to amend all actions it
has previously taken to authorize the acquisition of an additional parcel in the portion of
Lot 2 adjacent to South Washburn Street for the construction of a larger sanitary sewer
lift station and to instead authorize the acquisition of the approximately one hundred
twenty-five by one hundred fifty (125 x 150) foot parcel in the Northwest comer of Lot 2
designated as "New Lift Station Parcel" on Exhibit B (the ''New Lift Station Parcer')
pursuant to this Agreement~ for the future construction of a larger sanitary sewer lift
station.
2.03 Conveyance of New Lift Station Parcel. McClone agrees to convey the New Lift Station
Parcel to the City by warranty deed. free and clear of alltiens and encumbrances. The
City shall be responsible for the preparation of the survey and legal description of the
New Lift Station Parcel, which shall be submitted McClone for approval, which approval
shall not be unreasonably withheld. McClone shall be responsible for the preparation of
the warranty deed and Wisconsin real estate transfer return for the conveyance of the New
Lift Station Parcel to the City. McClone shall not be entitled to any monetary
consideration for the conveyance of the New Lift Station Parcel to the City.
2.04 Sanitary Sewer Easement. McClane shall grant to the City a sanitary sewer easement
over the portion of Lot 2 designated as "401 Sanitary Sewer Easement" on Exhibit B of
this Agreement ("the Sanitary Sewer Easement"). The City shall be responsible for the
preparation of the survey and legal description of the Sanitary Sewer Easement, which
shall be submitted McClone for approval, which approval shall not be unreasonably
withheld. McClone shall be responsible for the preparation of the Easement Agreement
establishing the Sanitary Sewer Easement (the "Easement Agreement") which shall be
submitted to the City for approval, which approval shall not be unreasonably withheld.
The Easement Agreement shall allow the owner of Lot 2 to landscape the area subject to
the Sanitary Sewer Easement and construct a parking lot and other improvements in the
area subject to the Sanitary Sewer Easement; provided that the owner of Lot 2 complies
with all applicable zoning and setback requirements and agrees that the City shall not be
responsible for the restoration of such improvements~ if it is necessary to disturb them in
order to relocate the sanitary sewer lift station.
2.05 Additional Payment to the City. At the closing~ McClane shall pay to the City the sum of
Twenty-three Thousand and noll00 Dollars ($23,000.00), which represents the agreed
upon difference between the total fair market value of the parcel the City originally
intended to acquire plus the value of Sanitary Sewer Easement granted by McClone and
the projected cost of the future relocation of the sanitary sewer lift station.
2.06 Existing Sanitary Sewer Lift Station. The existing sanitary sewer lift station shall remain
in its current location and the existing sanitary sewer easement shall remain in existence
until such time~ if ever, as the City elects to abandon them. The City shall not expand or
materially modify the existing sanitary sewer lift station without the prior consent of the
owner of Lot 2.
2.07 Maintenance of New Lift Station Parcel. Until such time as the new sanitary sewer lift
station is constructed on the New Lift Station Parcel, the City shall mow the grass on a
2
regular basis and maintain the New Lift Station Parcel in a manner that does not
adversely effect the appearance or value of Lot 2.
2.08 The Location and Construction of New Sanitary Sewer Lift Station. The City shall have
the right to determine~ in its sole discretion, when it will relocate the sanitary sewer lift
station to the New Lift Station Parcel. The City shall be responsible for all costs related
to any the abandonment of any existing faci1ities~ relocation of the sanitary sewer lift
station and construction of the New Sanitary Sewer Lift Station and related
improvements on the New Lift Station Parcel. AU improvements shall be designed and
constructed in a manner consistent with similar facilities constructed by the City at other
locations and shall be maintained in a good~ clean, safe and sightly condition that does
not adversely effect the appearance or value of Lot 2.
2.09 Cost of Other Improvements. McClone acknowledges and agrees that it shall continue to
be responsible for all costs related to the design and construction of all streets, curb and
gutter~ sidewalks and other improvements required by the Developer Agreement with the
City, including without limitation~ Insurance Way and McClone Drive.
2.10 Closing. The closing of the transaction that is the subject of this Agreement shall take
place on or before March 31, 2006.
2.11 Recording. This Agreement or an abridgement of this Agreement reflecting any
provision of this Agreement may be recorded at the option and expense of either party
and, if recorded, shall serve as notice to any successors in title.
2.12 Entire Agreement. This Agreement contains the entire understanding and agreement of
the parties with respect to a subject matter. There have been no promises,
representations, agreements, warranties or undertakings by either party to the other~ either
written or oral~ of any character or nature, as set forth in this Agreement.
2.13 Modifications. This Agreement may be altered, amended or modified only by a
subsequent written agreement that is signed and acknowledged by the parties and by no
other means. Each party waives the future right to claim, contend or assert that this
Agreement was modified~ cancelled, suspended or changed by any oral agreement, course
of conduct or estoppel.
2.14 Wisconsin Law. This Agreement shall be subject to and interpreted under the laws of
the State of Wisconsin. The parties agree that the Circuit Court ofWinnebago County,
Wisconsin shall have exclusive jurisdiction over any dispute related to this Agreement.
2.15 Severability. If any term, provision~ covenant or condition in this Agreement is held by a
court of competent jurisdiction to be invalid, void or enforceable, the remainder of this
Agreement shall remain in full force and shall in no way be affected, impaired or
invalidated.
2.16 Construction. No provision of this Agreement shall be interpreted for or against either
party because that party, or that party's attorney, representative or agent drafted the
provision.
3
2.17 Headings. The headings in paragraphs in this Agreement are for convenience only and
none of them is intended to be any part of the substance of this Agreement, nor intended
to be referred to in construing any of its provisions.
2.18 Binding Effect. This Agreement shall run with the title to Lot 2 and shall be binding
upon and inure to the benefit of each of the parties and their respective successors,
transferees and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate, original counterparts as of the day and year first written above.
Me CLONE DOWNTOWN DEVELOPMENT,
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By:-/V46-~/ f1Ld}j~
Michael McClone~ MemberlManager
CITY OF OSHKOSH
."-{--
Attest. \.
Pamela R. Uhrig, City Cler
STATE OF WISCONSIN)
)SS
WINNEBAGO COUN1Y)
Personally came before me this f)J~ day of M arr h ~ 2006, the above name4
Michael McClone~ Member/Manager of McClone Downtown Development, LLC, to me'ktiown- ~
to be the person who executed the foregoing instru ent and acknowled ed ~he Sful1e. . .
Notary Public, State of . crnsin j "."
My commission: 0'7 0 Cj D 1
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4
STATE OF WISCONSIN)
)SS
WINNEBAGO COUNTY)
.~ ~
Personally came before me this II day of , 2006~ the above
named' . , City Manager and Pamela R. Uhrig, ity Clerk of the City of
Oshkosh~ to e known to be the persons who executed the foregoing instrument and
acknowled ed the same.
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Notary Public, State of/Wisconsin
My commission: IILoS' JoOJ
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This document was drafted by:
Russell J. Ref[, Attorney at Law
Reff, Baivier, Bermingham & Lim, S.C.
217 Ceape Avenue, P.O. Box 1190
Oshkosh, WI 54903-1190
5
. CERTIFIED S.URVEY MAP NO. 70
. BEING' ALL OF LOT 4 OF CERTIFIED SURVEY MAP NUMBER 4802 AS RECORDED IN VOLUME 1 OF
CER:rIFIED SURVEY MAPS ON PAGE 4802, LOCATED IN THE NORTHEAST 1/4 OF THE FRACTIONAL
NORTHEAST 1/4 OF SECTION 4, TOWNSHIP 17 NORTH, RANGE 16 EAST, 13TH WARD, CIlY OF
OSHKOSH, WINNEBAGO COUNTY, WISCONSIN.
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I SECTION 33-18-16 NORTHEAST CORNER
NORTH _~~E OF THE FRACTIONAL SECTION 4-17-16
NORTH~~ 1/4 OF SECTION 4-17-16
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"'if . ~ '\,0....>- RESTRICTIONS PROHJBIT . IMPROVEMENTS.
"'-2 SEE SHEET 4 OF 4 SHEETS.
. 89"23'07"E 838.01'
SO<Y54 47 E 50' HIGHWAY
62.60' LOT 1 SETBACK LINE
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SANITARY SEWER EASEMENT 81.91'
DEDICATED TO THE CITY S49'44'30"E
OSHKOSH 1 06.28
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EXHIBIT
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CENTERLINE OF FRONTAGE
ROAD RIGHT OF WAY
UNPLATTED LANDS
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BERGSTROM FOX VALLEY INC.
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LEGEND:
. = 3/4" X 24" SOUD ROUND IRON REBAR
SET, WEIGHING 1.502 LBS. PER UN. FT.
3/4" IRON REBAR FOUND
BERNTSEN MONUMENT FOUND
CORNER IS OElllTERATED
EXISTING FENCE
I GRAPHIC SCAL,E: I
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WISCONSIN DEPARTMENT OF TRANSPORTATION
NO.: 70-041-1264-04
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THOMAS F. L.; ER , LS 1445 DATED
CAROW LAND SURVEYING CO., INC.
1837 W. WISCONSIN AVE., P.O. BOX 1297
APPLETON, WISCONSIN 54912-1297
PHONE: (920)731-4168
A017.73-03 (ROD) 5-14-03
REVISED: 10-21-03
UNPLATTED LANDS
---
FLANAGAN REV TRUST FINTAN/CARO
NOTE:
NO IMPROVEMENTS ARE ALLOWED WITHIN AREA RESERVED FOR
PUBLIC UTILI1Y & DRAINAGE EASEMENT. IMPROVEMENTS INCLUDE,
BUT ARE NOT LIMITED TO, BUILDING STRUCTURES, DRIVEWAYS,
PARKING AREAS, LANDSCAPING OR FENCES. ANY IMPROVEMENTS
SHALL BE AlLOWED ONLY BY SPECIAl EXCEPTION OF THE
BOARD OF PUBLIC WORKS.
NORTH IS REFERENCED TO NORTH UNE OF
THE FRACTIONAL NORTHEAST 1/4 OF SECTION
4, TOWNSHIP 17 NORTH, RANGE 1 6 EAST, 13TH
WARD, CITY OF OSHKOSH, WINNEBAGO. COUNTY,
WISCONSIN WHICH IS ASSUMED TO BEAR
N89.23'11"E. SHEET 10F 4 SHEETS
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Document Number
Documml Title
1398523
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON .
05/19/2006 09:18AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 2~). 00
TRANSFER FEE
# OF PAGES 8
AGREEMENT
Recording Area
(~Jc
Name and Return Address
UCft}TXftcirney I s Off; c:e
PO Box 1130
Oshkosh,WI 54903-1130
13-6505-01-00
Parcel Identification Number (PIN)
//'
This information must be completed by submitter: document rill~, nam~ &: return address, and PIN (if required). Olher informalion such
as Ihe granling clauses, legal description, elc. may be placed on rhis first pag~ of rhe document or may be placed on additional pages of Ihe
document. !i2!E. Use of rhis cover page adds one page ro your documenr and $2.00 10 rhe recordinR fu. Wisconsin SIatures. 59.517. WRD,.{ 2/96 !)(