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HomeMy WebLinkAbout11. 13-133 MARCH 26, 2013 13-133 RESOLUTION (CARRIED__6-0__ LOST _______ LAID OVER _______ WITHDRAWN _______) PURPOSE: ACCEPT DEED OF LAND FROM OSHKOSH AREA COMMUNITY FOUNDATION – RIVERSIDE PARK INITIATED BY: CITY ADMINISTRATION PARK BOARD RECOMMENDATION: Approved WHEREAS, a portion of Riverside Park was given to the City by William M. Bray by deed dated November 8, 1909 to be used for public dock and park purposes; and WHEREAS, the deed contained a reversionary clause providing that if the property was ever devoted or diverted to other uses or purposes that the land would revert to Mr. Bray or his heirs; and WHEREAS, the expansion and use of the Oshkosh Convention Center has made it impracticable to comply with the condition of the original deed; and WHEREAS, the City has added to Mr. Bray’s original dedication to the City including the addition of land and facilities along the City’s riverfront, including the Leach Amphitheater and the Oshkosh Riverwalk enhancing the public’s experience of the riverfront in this area; and WHEREAS, Wisconsin Statute §66.1025 allows a municipality to obtain relief from a condition of a gift or dedication of land if that condition becomes impossible or impracticable from the donor or heirs of the donor; and WHEREAS, in his Last Will and Testament, Mr. Bray bequeathed the residual interest in his estate to the Oshkosh Area Community Foundation; and WHEREAS, at its meeting on March 12, 2013 the Oshkosh Area Community Foundation Board, as the heir to Mr. Bray, approved a quit claim deed of a portion of the original grant from Mr. Bray identified on the attached Exhibit “A” to this Resolution to be used in connection with the operation of the Oshkosh Convention Center; NOW, THEREFORE, BE IT RESOLVED by the Common Council for the City of Oshkosh that the Common Council finds that expansion of the Oshkosh Convention Center and the most beneficial use of those facilities has made it impracticable to comply with the conditions of the original deed of land to the City of Oshkosh. MARCH 26, 2013 13 -133 RESOLUTION CONT'D BE IT FURTHER RESOLVED that the proper City officials are hereby authorized and directed to accept a quit claim deed from the Oshkosh Area Community Foundation, per the attached, for use of the property identified on the attached Exhibit "A" in connection with the operation of the Oshkosh Convention Center and to execute any and all documents necessary for purposes of same. BE IT FURTHER RESOLVED that the property shall not be combined with the Convention Center property and that in the event that the adjacent Convention Center property is transferred, sold, or discontinued as a public- private partnership or wholly publicly owned facility for any reason that this property shall revert to park use and be combined with the portion of Riverside Park originally deed by Mr. Bray to the City to include a reversionary interest in favor of the Oshkosh Area Community Foundation. CITY HALL 215 Church Avenue P.O.Box 1130 Oshkosh,Wisconsin City of Oshkosh 54903-1130 OIHKOIH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: March 20, 2013 RE: Accept Deed of Land from Oshkosh Community Foundation — Riverside Park BACKGROUND Attached to this memorandum is a map showing the current location of the property line between Riverside Park and the Oshkosh Convention Center and a proposal to adjust the property line between the Park and the Convention Center to allow the Operator of the Convention Center greater ability to exercise control over a portion of the property between the Convention Center Patio and the Riverwalk. The Operator has requested the ability to use the lawn area between the Convention Center and the Riverwalk for private parties and events, such as weddings. Although the Operator could use the property as it currently exists the property is open to use by other persons or groups. Adjusting the property line and including the lawn within the parcel leased to the Operator under its Agreement with the City would allow the Operator greater ability to market this option and would allow the Operator to exclude persons from the area, making this area more attractive to persons who lease the Center or lawn area. Mr. William Bray originally deeded the portion of Riverside Park at issue to the City specifically for a public dock and park purposes. Mr. Bray included in his grant of the property to the City a clause that should the City ever cease to use the property for park purposes, the property would revert to Mr. Bray or his heirs. The City previously researched this issue and determined that the Oshkosh Area Community Foundation is the heir to the estate and holds the reversionary interest in this property. Wisconsin law allows a municipality that has accepted a gift or dedication of land made on a condition that the land be devoted to a special purpose to obtain relief from that condition if the condition becomes impossible or impracticable. In this case, the expansion of the Convention Center has caused the property line for the parcel to be right alongside the patio and building. The lawn area which is regularly used by the Convention Center is actually part of the park parcel creating conflicts between the users of the two parcels. We can accomplish adjustment of this property line through a grant from the Oshkosh Area Community Foundation as the heir to the property relieving the City of compliance with the requirement. In order to accomplish the adjustment of the property line, the City has obtained approval from the Foundation Board for the Foundation to quit claim the portion of the park property shown on the map to the City of Oshkosh. The City would then include this parcel in its lease to the Operator of the Convention Center which is accomplished through an Amendment to the Management Agreement for the Convention Center which is also included as an item for approval on this Agenda. In order to ensure that the property would revert to park use, should a future Council determine to not continue to operate or to sell the Convention Center parcel, the deed includes language requiring the parcel be returned to parkland should the use of the Convention Center be discontinued or the Convention Center parcel be transferred. ANALYSIS Mr. William Bray gave a portion of the property now known as Riverside Park to the City of Oshkosh for parkland. The original deed from Mr. Bray to the City of Oshkosh contained the following language: Provided however and these presents are upon the express condition that the said grantee City of Oshkosh shall perpetually use and devote all of the said land and premises for the purpose of a public dock and park to which uses and purposes the said land and premises are hereby perpetually dedicated, and that the said grantee City of Oshkosh, shall duly accept this deed and grant upon the condition that if the said land and premises or any part thereof shall at any time be devoted or diverted to any other uses or purposes, than as herein provided, that these presents and this grant of the said land and premises shall be and become wholly null and void and that the said land and premises and the whole thereof shall revert to the said William M. Bray, Grantor herein, his heirs, executors, administrators and assigns and that he or they shall have the same again as his former estate anything to the contrary herein contained notwithstanding. The original grant of land covered only a portion of what is currently known as Riverside Park. Mr. Bray died in Oregon on March 15, 1964. City staff was able to obtain a copy of the probate filing for Mr. Bray which included his Last Will and Testament. In the Will, Mr. Bray conveys various items of personal property and cash to numerous individuals and organizations. The only bequest of land in the Will is a specific parcel of land located in Klamath County, Oregon, to Klamath County. The residue of the estate was conveyed to the Oshkosh Foundation by the following language: give and bequeath to First National Bank in Oshkosh, of Oshkosh, Wisconsin, all of the rest, residue and remainder of my property, real, personal and mixed and wheresoever situated in trust for Oshkosh Foundation with the limitation that the income shall be used primarily to give assistance to young people of Oshkosh for higher education but only after whatever part of the income may be necessary shall have been used to maintain at least the full value of the principal of this trust fund. The Oregon probate court approved a partial distribution of the estate in November 1964 including "a major portion of the bequest of the residue of said estate, reserving sufficient funds to meet final administrative expenses, and other contingencies" to the Oshkosh Foundation. On June 26, 1967 the Court ordered the remaining assets of said estate to be distributed to the First National Bank of Oshkosh, Wisconsin, as Trustee for Oshkosh Foundation, in accordance with Mr. Bray's Will. The property has been held and used as a park and the City of Oshkosh has over the years undertaken to obtain a significant amount of additional land in this area to add to the original park property deeded by Mr. Bray including what is now the Leach Amphitheater. In addition to the purchase of land, the City has recently constructed a Riverwalk along the property to enhance the public's experience of the riverfront in this area. In 1985 -86 the City constructed a Convention Center adjacent to the park with the south wail of the center following approximately the north line of the original deed from Mr. Bray. In 2008 -09, the City updated the Convention Center and added a patio facility which encroached upon the property that had been gifted by Mr. Bray. The City approached the Foundation at that time and the Foundation agreed to deed to the City the property on which the patio is currently located. The Operator of the Convention Center has requested greater ability to schedule and use the lawn area for events and the ability to exclude persons who may be disruptive to events from the area. Including this area within the lease to the Operator would allow the Operator to exclude persons who may be disruptive to their events and would enhance their ability to market the Convention Center knowing that they have the ability to use the lawn area without disruption. By allowing persons to schedule use of the area through the Convention Center, it is hoped that the public will make more use of this area. The area would remain open space, If the Convention Center was ever sold or otherwise transferred, the property would be required to be returned to park use. City staff believes that inclusion of this area in the lease to the Operator of the Convention Center will be the most beneficial use of the property. City staff also believes that the release of the reversionary interest is consistent with the wishes of Mr. Bray to provide for successful and vibrant public facilities to encourage people to use and enjoy the City's riverfront and is also supported by the fact that the City has undertaken to add a significant amount of land and park improvements to the original dedication from Mr. Bray. FISCAL. IMPACT There is no direct fiscal impact from approval of this proposal as the City is the owner of both the Convention Center parcel and Riverside Park, however, it is expected that adjustment of this property line will directly affect the ability of the Operator to market the Convention Center facilities and thus will increase the revenue to both the City and the Oshkosh Area Community Foundation. NOTE: Wisconsin Statutes require a 213 majority vote, or 5 members, to pass this Resolution. Respectfully Submitted, 'nq A. Lore so City Attorney Approved: Mark A. Rohloff City Manager