HomeMy WebLinkAbout10. 13-310
JUNE 25, 2013 13-310 RESOLUTION
(CARRIED___6-0____LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE DEVELOPMENT AGREEMENT & WAIVER OF
SPECIAL ASSESSMENT PROCEEDINGS FOR
RECONSTRUCTION OF WESTOWNE & WASHBURN
INTERSECTION; APPROVE LICENSE AGREEMENT FOR
CONSTRUCTION & USE OF DRIVEWAY ON WASHBURN
– KWIK TRIP
INITIATED BY: COMMUNITY DEVELOPMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh that the
proper City officials are hereby authorized and directed to enter into a Development
Agreement with Convenience Store Investments for reconstruction of the Westowne
Avenue/ Washburn Street intersection, in association with the construction of a Kwik
Trip convenience store, 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 approved Agreement.
BE IT FURTHER RESOLVED by the Common Council of the City of Oshkosh
that the Waiver of Special Assessment Notices and Hearing under Section
66.0703(7)(b) of the Wisconsin Statutes, for public improvements and services as
described in the attached Waiver is accepted and approved.
BE IT FURTHER RESOLVED that the proper City officials are hereby authorized
and directed to enter into a License Agreement with Convenience Store Investments to
allow a Kwik Trip convenience store to locate a driveway at or near the intersection of
Westowne Avenue and Washburn Street over an Access Restriction owned by the City
at the Westowne/Washburn intersection, 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 approved Agreement.
City of Oshkosh
Community Development Department �f HK�fH
215 Church Avenue, Oshkosh, WI 54903
ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Allen Davis, Community Development Director
DATE: June 19, 2013
RE: Development Agreement; Waiver of Special Assessment Proceedings;
and License Agreement related to the Kwik Trip Project, Westowne Ave.
and N. Washburn Street Intersection
BACKGROUND
The City Council approved the Kwik Trip project earlier in 2013 with the condition that
the improvements at the Westowne Ave./N. Washburn Street intersection would be
installed. Since that time, the developer has worked with city staff on the plans for the
improvements to the intersection. All of the requirements placed upon the
Development that went before the City Council previously for approval were to be
incorporated into the plans and a Development Agreement.
The typical Development Agreement provides for a Letter of Credit for the developer's
cost for the improvements. In this case, the developer has also signed a Waiver of
Special Assessment. Both of these instruments are financial guarantees to insure the
developer, not the City or adjoining property owners, will pay for the improvements in
the right -of -way.
ANALYSIS
Kwik Trip's proposed driveway at the Westowne Ave./N. Washburn St. intersection
project will require modifications to the intersection according to the Traffic Impact
Analysis and the City's street design specifications. The driveway improvements that
will be made on the Kwik Trip property are the responsibility of Kwik -Trip. The
modifications to the intersection are:
• Redesign and install turning lanes.
• Install pedestrian crossings for all movements.
• Install signalization for vehicle and pedestrian traffic.
• Restore the utilities, terraces and medians as required.
Kwik Trip has provided the financial guarantees as required in the typical Development
Agreement. The estimated cost of the improvements in the right-of-way is $370,000.
The modifications will take place while still maintaining all intersection movements for
existing traffic. Construction will start after EAA, 2013, and be complete in 2014.
Development Agreement: One element of the Development Agreement that is unique
to the Kwik Trip site is the condition that if there is evidence that the intersection
becomes a high -crash location, and the crashes are related to the Kwik Trip, the City
may require a re- evaluation of the design of the intersection. The Development
Agreement lays out the conditions that must be met for the high -crash location
determination. Intersection modifications to address the high crashes may include, but
are not limited to changes to driveway, relocation of truck traffic, and partial or full -
closure of the driveway. Kwik Trip would be responsible to pay for these changes only
if the changes were due to the vehicles entering or exiting the Kwik Trip property.
Waiver of Special Assessment: A Development Agreement always requires the
developer providing a Letter of Credit for the improvements. If the developer fails to
perform, the City can draw on the Letter of Credit to complete the work. The Waiver of
Special Assessment is an additional financial guarantee. If the developer fails to
construct any of the improvements or maintain the improvements, the City can perform
the work and assess the developer the costs as a Special Assessment against their
property. All of the requirements placed upon the Development when the City Council
approved the Development have been incorporated into the Development Agreement.
License Agreement: A License Agreement has also been drafted and is attached.
The purpose of the License Agreement is to memorialize the City's requirements and
conditions for permitting Kwik Trip access to their parcel at this location due to an
existing access restriction placed on the property. The License is designed to ensure
that only Kwik Trip is the licensee and that Kwik Trip installs and maintains the
improvements approved by the City. If the Kwik Trip property is sold, the new property
owner would need City approval of a new License Agreement if the new property owner
wanted to continue access at the intersection.
FISCAL IMPACT
The Development Agreement includes a requirement for a Letter of Credit for project. If
the developer fails to perform, the Waiver of Special Assessment will allow the City to
perform the work and assess the developer with the Special Assessment. Both
financial guarantees will insure there is no fiscal impact to the City.
RECOMMENDATION
The City Council approves the Development Agreement, Waiver of Special Assessment
and License Agreement as proposed.
Approved,
City Manager
Proposed Kwik Trip Site, 1090 N. Washburn Street
DEVELOPMENT AGREEMENT
Kwik Trip 1090 North Washburn Street
This DEVELOPMENT AGREEMENT ( "Agreement "), made and entered into this
day of June, 2013, is by and between the CITY OF OSHKOSH, a Wisconsin
municipality with its principal offices located at 215 Church Ave., P.O. Box 1130,
Oshkosh, WI 54903 -1130, ( "Seller ") and CONVENIENCE STORE INVESTMENTS, a
Wisconsin limited partnership, with its principal offices located at 1626 Oak Street, La
Crosse, WI 54603 ( "Developer "):
RECITALS
Developer desires to construct an auto service facility, retail store and carwash on an
approximately 2.78 acre parcel zoned for commercial use located at or near the
intersection of Westowne Avenue and North Washburn Street in the City. of Oshkosh,
(the "Property ") more particularly described as follows:
PART OF THE NORTHEAST 114 AND THE NORTHWEST 1/4 OF THE SOUTHEAST
114 OF SECTION 16, TOWN 18 NORTH, RANGE 16 EAST, CITY OF OSHKOSH,
WINNEBAGO COUNTY, WISCONSIN.
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE EAST 114 CORNER OF SECTION 16, TOWNSHIP 18
NORTH, RANGE 16 EAST; THENCE SOUTH 00 DEGREES 28 MINUTES 43
SECONDS EAST ALONG THE EAST LINE OF THE SE 114 OF SAID SECTION 16,
685.09 FEET; THENCE NORTH 61 DEGREES 15 MINUTES 30 SECONDS WEST,
622.34 FEET TO THE POINT OF BEGINNING: THENCE SOUTH 00 DEGREES 13
MINUTES 04 SECONDS EAST 173.53 FEET TO A POINT ON THE NORTHERLY
RIGHT -OF -WAY LINE OF N. WASHBURN STREET; THENCE NORTHWESTERLY
102.86 FEET ALONG THE ARC OF A CURVE WITH A RADIUS IS 485.0 FEET AND A
CHORD BEARING OF NORTH 83 DEGREES 45 MINUTES 22 SECONDS WEST
102.66 FEET; THENCE NORTH 89 DEGREES 49 MINUTES 54 SECONDS WEST,
266.48 FEET; THENCE NORTHWESTERLY 389.53 FEET ALONG THE ARC OF A
CURVE WITH A RADIUS OF 397.0 FEET AND A CHORD BEARING OF NORTH 61
DEGREES 43 MINUTES 23 SECONDS WEST, 374.09 FEET; THENCE NORTH 82
DEGREES 34 MINUTES 49 SECONDS EAST 4.96 FEET; THENCE NORTH 01
DEGREES 29 MINUTES 08 SECONDS EAST, 80.61 FEET; THENCE NORTH 30
DEGREES 45 MINUTES 25 SECONDS WEST, 39.93 FEET; THENCE NORTH 45
DEGREES 44 MINUTES 47 SECONDS EAST, 30.47 FEET; THENCE NORTH 70
DEGREES 34 MINUTES 13 SECONDS EAST, 74.15 FEET; THENCE NORTH 79
DEGREES 40 MINUTES 25 SECONDS EAST, 115.60 FEET; THENCE NORTH 84
DEGREES 02 MINUTES 14 SECONDS EAST, 75.83 FEET; THENCE SOUTH 81
DEGREES 41 MINUTES 12 SECONDS EAST, 75.43 FEET; THENCE
SOUTH 61 DEGREES 15 MINUTES 30 SECONDS EAST, 405.11 FEET TO THE
POINT OF BEGINNING.
Developer has requested driveway access to the site which will require redesign
and reconstruction of the existing intersection between Westowne Avenue and North
Washburn Street as well as a license for use of a driveway within an area with recorded
platted access restrictions.
By Resolution 13 -167 (April 9, 2013), the Common Council conditionally
approved planned development of the Project Site, including redesign and
reconstruction of the existing intersection between Westowne Avenue and North
Washburn Street. The Common Council conditioned approval upon the Developer
entering into an appropriate developer's agreement providing for the payment by
Developer of all costs for work associated with redesign and reconstruction of the
intersection and conditioned upon the Developer providing security for the proposed
improvements in a form acceptable to the City.
Developer shall install right -of -way and other improvements as specified in Article
11 of this Agreement in accordance with the Project Plans and pay the full cost of such
improvements.
By Resolutions 13 , on June 25, 2013, the Common Council of the City of
Oshkosh authorized and directed the proper City officials to enter into this Agreement to
provide for installation of the improvements to the intersection of Westowne Avenue and
North Washburn Street and payment by the Developer of all costs pertaining to the
Project and approved initial and final resolutions and accepted the waiver of special
assessment notices and hearing pursuant to Section 66.0703 of the Wisconsin Statutes
for inspection services pertaining to Developer's installation of the above - listed
improvements.
NOW THEREFORE, in consideration of the foregoing recitals that are
incorporated herein and made a part of this Agreement, the promises, covenants and
agreements contained in this Agreement and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the Developer and the City
promise, covenant and agree as follows:
THIS AGREEMENT is made pursuant to Section 66.0703 of the Wisconsin Statutes
providing for levying and assessing the cost of various improvements to the property
herein described.
ARTICLE I. Definitions As used in this Agreement, the following terms shall have the
following meanings:
A. "Completion Date" shall mean September 1, 2014 or such date as the City
Engineer certifies that all improvements within the public right -of -way pertaining
to the Project have been completed and accepted by the City, whichever is
earlier.
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B " Pr_ oject means the construction of right -of -way improvements including
redesign and reconstruction of the intersection of Westowne Avenue and North
Washburn Street, all adjacent to a proposed auto service facility, retail store and
carwas'h on an approximately 2.78 acre parcel zoned for commercial use located
at or near the intersection of Westowne Avenue and North Washburn Street
within the City of Oshkosh, all in conformance with the approved plans and in
compliance with City of Oshkosh Standards and Specifications and as shown on
attached Exhibit A. The City of Oshkosh shall have the right in its sole discretion
to stop work on the Project Site and work directly affected on the Property if right
of way work is not being done according to the Project Plans or Property work is
not complying with terms of the agreement.
C. " Project Plans" means final detailed plans and specifications for the
Project as approved and on file in the City of Oshkosh Department of Public
Works. See attached Exhibit A for approximate work area.
D. " Project Site means the right -of -way adjacent to the Property located near
the intersection of Westowne Avenue and North Washburn Street as shown on
attached Exhibit B.
E. "Property" means the parcel of land comprised of an approximately 2.78
acre parcel zoned for commercial use located at or near the intersection of
Westowne Avenue and North Washburn Street within the City of Oshkosh and
the adjacent right -of -way areas more particularly described above.
ARTICLE II. Project Overview. The Developer will construct the Project on the
Project Site in accordance with the Project Plans.
ARTICLE 111. Covenants of Developer. The Developer represents and agrees as
follows
(a} Developer covenants and warrants that it is the owner of the Property.
(b) The undersigned individuals have the authority to sign this Agreement on
behalf of Developer and to bind Developer to the terms and conditions of
this Agreement.
(c) The Developer shall cause the Project to be constructed in a good and
workmanlike manner and substantially in accordance with the Project
Plans and will promptly correct any defects in any construction or
deviations from the Project Plans. Developer shall guaranty such work for
a period of two (2) years as provided in Article V. B. of this Agreement.
(d) The Developer shall not, without the prior written consent of the City,
approve any change or modification in the Project by change order or
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otherwise that would cause the Project to be materially inconsistent with
the Project Plans or this Agreement.
(e) The Developer shall permit the City and the City's construction consultant
or inspector, at all reasonable times, to inspect the Project and all matters
relating to the development thereof. The City assumes no obligation to
the Developer for the sufficiency or adequacy of such inspections, it being
acknowledged that such inspections are made for the sole and separate
benefit of the City. The fact that the City may make inspections shall in no
way relieve the Developer from its duty to independently ascertain that the
construction of the Project is being completed substantially in accordance
with the Project Plans.
(f) The Developer shall have in effect at all times, all permits, approvals and
licenses that may be required by any governmental authority or
nongovernmental entity in connection with the construction of the Project.
(g) Developer shall pay for all work performed and materials furnished for the
Project as and when due.
(h) On or before the Completion Date, the Project shall be completed (subject
to matters of force majeure), and the right -of -way areas shall be open and
ready for public use.
(i) Developer shall conform and comply with, and will cause the Project to be
in conformance and compliance with, all applicable federal, state, local
and other laws, rules, regulations and ordinances. Developer shall
secure all necessary plan approvals and permits prior to beginning
construction activities.
(j) In the event that the intersection of Westowne Avenue and Washburn
Street is identified as a high crash location within three years after
completion of the Project (such three -year period to commence ninety (90)
days after the Completion Date), the Developer, or its designee, at its cost
and expense, shall be responsible for constructing improvements that
would address crashes related specifically to the driveway which connects
to Westowne Avenue.
This intersection would be defined as a high crash location when it meets
all of the following criteria:
Has at least four (4) reportable vehicular crashes in a particular
calendar year.
® When the crash rate for that year (as defined by reportable crashes
per one million entering vehicles) is at least 150 percent higher than
rd
predicted using the appropriate safety performance function from
the Interactive Highway Safety Design Manual (1HSDM).
The crash rate over the most recent period of three consecutive
calendar years was at least double the predicted crash rate over
that same time frame.
Improvements may include, but not be limited to, reduction or relocation of
ingress at said driveway, relocation of all entering and exiting truck traffic
to the Property's southern driveway, right in and right out at the driveway
connecting to North Washburn at Westowne Avenue, partial closure of the
driveway connecting to North Washburn at Westowne Avenue or full
closure of the driveway connecting to North Washburn at Westowne
Avenue. The City shall consult with the Developer prior to any alteration.
The Developer or designee is responsible for the design and construction
of improvements to address these safety concerns. The specific
improvement must be designed in a form acceptable to the Board of
Public Works so as to address this particular safety concern. The
Developer would not be responsible for the cost of improvements if,
though the intersection is identified as a high crash location, the crashes
do not directly involve vehicles exiting or entering the Property via the
driveway that connects to Westowne Avenue or the southbound left turn
lane on North Washburn Street.
(k) Developer shall maintain traffic access at all times on Westowne Avenue
and North Washburn Street.
(1) Permanent traffic signal fixtures shall be installed immediately upon
receipt or as soon as weather permits and in no event later than May 1,
2014. Removal of temporary traffic control system and restoration shall be
completed no later than June 1, 2014.
(m) No more than eight (8) weeks of work will be permitted in the right of way
exclusive of the installation of the permanent signal system and removal
and restoration of the temporary signal system. The City of Oshkosh must
approve the work timeframe before the project commences.
(n) Contractors, suppliers, employees, agents and others associated with the
construction of the Project shall use the south driveway access across
from Lowe's on North Washburn Street only.
(o) Developer shall cause the General Contractor to obtain a valid Right of
Way Permit at any time contractors or subcontractors are working in the
right of way.
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(p) At all times when a contractor is working in the right of way, a city or state
approved traffic control plan must be implemented.
(q) The Developer shall use epoxy in all pavement markings, in accordance
with the Wisconsin Department of Transportation Construction and
Materials Manual and Section 646 of the Wisconsin Department of
Transportation 2013 Standard Specifications.
(r) Developer agrees to grant all easements necessary for the installation and
maintenance of public sidewalk and traffic signal infrastructure.
ARTICLE IV. City Services.
Developer has requested, and consents to, services from and installation by City of
various improvements described as follows:
Survey and Inspection Services for Private Construction of the Project.
Pursuant to Section 66.0703 of the Wisconsin Statutes, the City has levied and
Developer has consented to the levying and assessing of the cost of various
improvements for the benefit of the Property.
The attached exhibit, acknowledged by City and Developer as being true and correct, is
incorporated by reference as if fully stated herein.
EXHIBIT "C" - Waiver of Special Assessment Notices and
Hearing under Section 66.0703, Wisconsin Statutes
It is specifically understood by and between the parties that the amounts set forth in the
attached Exhibit "C" Waiver of Special Assessment Notices and Hearing under Section
66.0703, Wisconsin Statutes are estimates only. Invoices and assessments shall be
based upon the actual costs of services and construction. In the event that the
estimated cost exceeds the actual costs of services and construction, the Developer
shall be responsible only for the actual cost of construction. In the event that the actual
costs of services and construction exceed the estimated costs, the City shall be entitled
to assess the property for any excess costs pursuant to statutory notice and hearing or
upon execution of an appropriate waiver.
ARTICLE V. Payment for City Services and Financial Guaranties
A. Payment for City Services. The Developer shall supply a cash deposit in the
amount of $22,200 for survey and inspection fees as shown on attached Exhibit
"C" which may be drawn upon by the City for payment for the services provided.
The City shall provide to the Developer an accounting of all draws from the cash
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deposit. If the amount due, exceeds the cash deposit, the City shall invoice the
Developer for the difference between the amount due and the amount drawn
from the cash deposit. The Developer shall pay all invoices, in cash, within
thirty (30) days of invoice from the City. If the amount of the cash deposit
exceeds the amount due for services provided, the City shall refund to the
Developer the deposit amount in excess of the amount due for services.
B. Financial Guaranties. Prior to undertaking any work within the right -of -way,
Developer shall file a two (2) year performance bond or letter(s) of credit, which
shall be renewable at the option of the City of Oshkosh if such construction has
not been completed within the period specified above and which meets the
approval of the City Attorney, which shall guaranty Developer's performance of
any privately constructed improvements as set forth in Exhibit "C" attached
hereto. Upon verification that such construction has been completed, accepted
by the City and warranty bond or letter of credit filed, the performance bond or
letter of credit shall be extinguished and released.
After written acceptance by the City of the privately constructed improvements,
Developer shall submit a warranty bond or letter of credit in the amount specified
in the attached Exhibit "C" as a guarantee of such improvements for a period of
two (2) years from the date of acceptance. The Developer shall be responsible
for repairs to said privately constructed improvements during this two (2) year
guaranty period. If Developer fails to make any necessary repairs, within thirty
(30) days of receiving written notice from the City, the City may make such
repairs and draw upon this letter of credit for payment in addition to any remedies
available to the City under Article VI herein.
Failure to file an appropriate bond shall entitle the City to stop all construction
work upon the Project Site and Property including construction performed by
private contractors, by notice to the Developer and any contractors. Notice may
be given personally to an individual representative of the contractor or Developer
andlor sent by mail to the Developer or contractor. If construction work continues
without filing of an appropriate bond, the City shall be entitled to seek an
injunction to prevent further work on the project until such time as an appropriate
bond is filed and to seek such other and further relief as may be deemed
appropriate. In addition to any equitable relief, the City may seek monetary
compensation for any damages actually incurred and upon judgment shall be
entitled to its costs and fees in pursuit of any action under the terms of this
paragraph.
ARTICLE VI. Remedies for Default. In addition to the remedies for default provided to
the City by the financial guarantees contained within this Agreement, the City shall have
the right without notice or hearing to Developer, or any successor in title, to impose
special assessments for any amount to which the City is entitled by virtue of this
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Agreement upon the Property. With respect to defaulting Developer, this provision
constitutes Developer's consent to the installation by the City or designee of all public
improvements and remediations required by this Agreement including, but not limited to,
the restoration of the Project Site to its pre - project configuration and constitutes
Developer's, and any successors in title, waiver and consent to all special assessment
proceedings as described in Section 66.0703, of the Wisconsin Statutes. The remedies
provided in this Agreement are not exclusive. The City may use any other remedies
available to it.
ARTICLE VII. LIABILITY AND INDEMNIFICATION
No Personal Liability Under no circumstances shall any council member, official,
director, attorney, employee, or agent of a party have any personal liability arising out of
this Agreement, and no party shall seek or claim any such personal liability.
Indemnifications The Developer covenants and agrees to protect and hold the City of
Oshkosh harmless against all actions, claims, and demands which may result from the
intentional or negligent acts of the Developer, its agents or assigns, its employees, or its
contractors or subcontractors related however remotely to the performance of this Agreement or
be caused or result from any violation of any law or administrative regulation, and shall
indemnify or refund to the City all sums including court costs, attorney fees, and punitive
damages which the City may be obliged or adjudged to pay on any such claims or demands
within thirty (30) days of the date of the City's written demand for indemnification or refund for
those actions, claim, and demands caused by or resulting from intentional or negligent acts as
specified in this paragraph.
ARTICLE VIII. GENERAL PROVISIONS
Entire A reement. This Agreement supersedes all other agreements or other
understandings between City and Developer, whether verbal or written, concerning the
Property, the Project, the Project Site and any other matter related thereto and it shall
inure to the benefit of and shall bind the parties hereto, their respective heirs, executors,
successors or assigns.
Modifications This Agreement may be amended or modified only by written instrument
duly executed by, and delivered to both of the parties hereto.
Severability of Provisions In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if the invalid, illegal or unenforceable
provision had never been contained herein.
Time of Essence Time is of the essence.
Counterparts This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
Headings Descriptive headings are for convenience only and shall not control or affect
the meaning or construction of any provision of this Agreement.
Assignment Provisions of this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the parties
No Joint Partnership, Nothing contained in this Agreement or any other documents
executed pursuant to this Agreement shall be deemed or construed as creating a
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partnership or joint venture between the City and the Developer or between the City and
any other person, or cause the City to be responsible in any way for the debts or
obligations of the Developer or any other person or cause the Developer to be
responsible in any way for the debts or obligations of the City or any other person.
Each party represents, warrants and agrees, for itself and its successors and assigns,
not to make any assertion inconsistent with its acknowledgement or with the
acknowledgement and agreement contained in the preceding sentence in the event of
any action, suit or proceeding, at law or in equity, with respect to the transactions which
are the subject of this Agreement and this paragraph may be pleaded and construed as
a complete bar and estoppel against any assertion by or for a party and its successors
and permitted assigns, that is inconsistent with its acknowledgement and agreement
contained in the preceding sentence.
Force Maieure. if any party is delayed or prevented from timely performing any act
required under this Agreement other than the payment of money, by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, labor disputes or shortages,
government restrictions, judicial order, public emergency, or other causes beyond the
reasonable control of the party obligated to perform, the performance of such act shall
be excused for the period of such delay and the time for the performance of any such
act shall be extended for a period equivalent to such delay.
Recording of Document. A memorandum of this Agreement may be recorded in the
office of the Register of Deeds of Winnebago County, Wisconsin. This Agreement
inures to the benefit of the City and its successors and assigns.
Construction of Document. This Agreement is the product of negotiation between the
parties hereto and no term, covenant or provision herein or the failure to include a term,
covenant or provision shall be construed against any party hereto solely on the basis
that one party or the other drafted this Agreement or any term, covenant or condition
contained herein.
No Third Party Beneficiaries. This Agreement is intended solely for the benefit of the
Developer and the City, and no third party (other than successors and permitted
assigns) shall have any rights or interest in any provision of this Agreement, or as a
result of any action or inaction of the City in connection therewith.
Governing Law. This Agreement shall be governed by, and construed in accordance
with the laws of the State of Wisconsin.
Litigation In connection with any litigation arising out of this Agreement, the prevailing
party shall be entitled to recover all costs incurred, including reasonable attorneys' fees.
Waiver of Trial by Ju_ry. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM,
WHETHER CONTRACT OR TORT, AT LAW OR EQUITY, ARISING OUT OF OR IN
ANYWAY RELATED TO THIS AGREEMENT.
[[ +]
Interest Rate on past due amounts. All amounts not paid when due hereunder shall
bear interest at the rate of twelve percent (12 %).
Other Approvals Nothing contained in this Agreement is intended to or has the effect of
releasing the Developer from compliance with all applicable laws, rules, regulations and
ordinances in addition to compliance with all the terms, conditions and covenants
contained in this Agreement. In addition to any approvals required under this
Agreement, the Developer shall be required to obtain all approvals, consents, and
licenses as may be required by any governmental or non - governmental authority in
connection with the Project, including, without limitation, all building permits, Project
Plan approvals and zoning approvals. The Developer's compliance with the terms of
this Agreement shall not relieve the Developer from complying with all applicable
federal, state and local laws, rules, regulations and ordinances in connection with the
Project and to the extent any governmental or non - governmental entity imposes
different or more restrictive conditions on the Developer or the Project, compliance by
the Developer with the terms of this Agreement shall not relieve the Developer from
complying with such different or more restrictive conditions. Likewise, any less
restrictive conditions imposed on the Developer or the Project by any governmental or
non - governmental authority shall not relieve the Developer or the Project from
complying with all of the terms and conditions of this Agreement.
(Signature Pages to follow)
1f
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CITY OF OSHKOSH
Mark A. Rohloff, City Manager
Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this _ day of , 2013, the above
named Mark A. Rohloff, City Manager for the City of Oshkosh, and Pamela R. Ubrig,
City Clerk for the City of Oshkosh, to me known to be such persons who executed the
foregoing instrument and acknowledged the same, for the purpose herein contained.
Notary Public, Winnebago County, Wisconsin
My Commission expires:
CONVENIENCE STORE INVESTMENTS,
A Wisconsin Limitec/fjartnership
Michael J n u4, Kresident of
Conven' nc Store Investments,
Inc., Gknep6l Partner
STATE OF WISCONSIN)
LA C.O&SC ) ss.
W 1*4EBAGO COUNTY )
Personally came before me this 0 day of JIAYf-, , 2013, the above
named Michael J. Ancius, President of Convenience Store Investments, Inc., General
Partner of Convenience Store Investments, a Wisconsin Limited Partnership, to me
known to be such person who executed the foregoing instrument and acknowledged
the same, for the purpose herein contained.
b [fit '
Notary Publi County, Wisconsin
t(AME My Commission expires: q- 18--10
YUG x
41 0
F Op . % � �
This Agreement was drafted by:
Attorney Lynn Lorenson
Oshkosh, Wisconsin 54903 -1130
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CONTAINCR MR
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H'FIK TRIP. Inc.
P.O, 90x 2107
1828 OAK STREET
LACROSSE WI 544024107
PH. [8081 781 -8988
18
FAX 081 781 -8950
INSITES
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PART OF THE N.E. 1/4 AND THE N.W. 1/4 OF THE S.E. 1/4 OF SECTION 16,
T18N, R16E, CITY OF OSHKOSH, WIINNEBAGO COUNTY, WISCONSIN,
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SURVEY PREPARED FOR:
CHORD BEARING
KWK TRIP, INC,
0
1626 OAK STREET
102.86'
P.O. BOX 2107
N83'45'22'V!
LACROSSE, W 54602
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COORDINATE SYSTEM,
to
ALL DISTANCES ARE
ARC LENGTH
MEASURED TO THE
CHORD BEARING
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BEARINGS ARE BASED ON
N83'45'22'V!
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N61'43'23 "W
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EAST ON THE EAST LINE
99.49'
OF THE SOUTHEAST
N75'32'42 "N'
QUARTER OF SECTION 16,
C4
TOWN 18 NORTH, RANGE
40.02'
16 EAST.
0 DENOTES 1 INCH DIAMETER IRON PIPE
78 INCHES LONG SET; WEIGHING
NOT LESS THAN 1.73 L8S PER LINEAL FOOT.
s DENOTES FOUND 1 INCH DIAMETER IRON PIPE
UNLESS OTHERWISE NOTED.
() DENOTES RECORD DIMENSION WHERE
DIFFERENT FROM ACTUAL MEASUREMENT
0 100 200 300
SCALE 1" = 100'
JOB NO. 5038 B
CURVE
RADIUS
ARC LENGTH
CHORD LENGTH
CHORD BEARING
DELTA ANGLE
C1
485.00'
102.86'
102.66'
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389.53`
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98.46'
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28'34'24"
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40.02'
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319 DAK'OTA ZEE VY" OMRO, FT 54963
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EXHIBIT C
WAIVER OF SPECIAL ASSESSMENT NOTICES AND
HEARING UNDER SECTION 66.0703, WISCONSIN STATUTES
The undersigmed, owner of property benefited by the following improvements to be made by the
City of Oshkosh, Winnebago County, State of Wisconsin, to wit:
For private construction and public inspection and surveying for Project, as defined in
Developer's Agreement.
In consideration of the construction of said improvements by the City of Oshkosh, Wisconsin, I
hereby admit that such public improvement will benefit said property and consent to the levying
of special assessments against ' the premises under Section 66.0703 of the Wisconsin Statutes for
the cost of such improvements. In accordance with Section 66.0703 of the Wisconsin Statutes, I
hereby waive all special assessment notices and hearings required by Section 66.0703 of the
Wisconsin Statutes; and I further agree and admit that there is benefit to my property from the
construction of such improvements and the assessments set forth herein have been estimated on a
reasonable basis;
Description of Premises
Property as defined in Developer's Agreement
1. Intersection Reconstruction: Including but not limited to pavement, utilities, pavement
marking and landscape, (Private Construction)
Estimated Construction Cost $210,000.00 Private
6% Inspection, Survey $12,600.00 Deposit
2. Traffic Signal reconstruction (Private Construction)
Estimated Construction Cost $160,000.00 Private
3% Inspection $9,600.00 Deposit
Cash Deposit; for Public Services = $22,200
2 — Year Irrevocable Letter of Credit for Private Construction ` $370,000,00
2 — Year Irrevocable Letter of Credit after Acceptance of Private Construction = $74,000.00
Signature of Owner:
K%ka11ynWwik Trip a[Hwy27.doca Page 1 of I
LICENSE AGREEMENT
(Construction and Use of Driveway)
This agreement is made and entered into this day of June, 2013, between
the City of Oshkosh ( "City ") and CONVENIENCE STORE INVESTMENTS, a Wisconsin
limited partnership, with its principal offices located at 1626 Oak Street, La Crosse, WI
54603 ( "Licensee "). The parties enter into this agreement for $1.00 and other good and
valuable consideration as described in this document as well as a Development Agreement
between these same parties, the receipt of which is acknowledged.
The Licensee is the fee owner of the property commonly known as 1090 N.
Washburn Street, Oshkosh, Wisconsin, parcel number 91621500200. ( "Property ").
The City has previously purchased an Access Restriction limiting access from the
Property to North Washburn Street, as identified on the Award of Damages recorded in the
Office of the Register of Deeds for Winnebago County, Wisconsin, as document number
1413713 on October 10, 2006.
Licensee plans to construct an auto service facility, retail store and carwash on the
Property. Licensee and the City have entered into a Development Agreement with respect
to the Property and Licensee has requested a License from the City to locate a driveway at
or near the intersection of Westowne Avenue and North Washburn Street in the City of
Oshkosh, consistent with their approved plans for development of the Property.
The City has reviewed Licensee's request and will allow the requested driveway
access, including a curb cut and driveway approach, subject to the terms and conditions
identified in this agreement. Both parties agree that all of the City's terms and conditions in
this document are to be considered material. Specific terms and conditions of this
agreement between City and Licensee follow.
1. The City grants permission to Licensee to construct a curb cut and driveway
approach from the Property at or near the intersection of Westowne Avenue and
North Washburn Street, provided that the construction of the curb cut and
driveway approach is materially similar to the final detailed plans and
specifications for the Project as approved and on file in the City of Oshkosh
Department of Public Works. A copy of the approved plan is attached to the
Development Agreement between these two parties as Exhibit A thereto. This
License shall only be used for driveway access, construction of the curb cut and
driveway approach and for no other purpose.
2. The City's permission for this driveway access is contingent upon the initial, and
continuing, compliance with all applicable local, state, and federal codes and
rules. The driveway access, including the curb cut and driveway approach, shall
comply with all City Ordinances.
3. Licensee agrees that they are solely responsible for the installation and
maintenance of the curb cut and driveway approach. All expenses arising out of
this License are the responsibility of the Licensee, including but not limited to all
costs for construction and maintenance of the curb cut and driveway approach.
4. Term: This License shall commence on the date written above and shall
terminate upon the sale, conveyance, transfer, or other disposition of the
property or revocation of the License except for those transfers between
Licensee and its related entities.
In the event of sale, conveyance, transfer, or other disposition of the property,
this License shall terminate automatically and no further notice shall be
necessary except for those transfers between Licensee and its related entities.
The City is allowed to revoke its permission for the driveway access upon 30
days written notice to Licensee for any of the following reasons:
a. The intersection of Westowne Avenue and North Washburn Street is
redesigned in such a manner as to alter or eliminate the driveway access,
b. Local, state, or federal rules, laws, or guidelines relating to streets,
driveway access or other transportation matters, or any other local, state,
or federal law prohibit the continued location of the driveway access;
C. Licensee fails to properly maintain, repair, or replace the curb cut or
driveway approach;
d. Licensee fails to provide the City with written proof that the driveway
access, curb cut and driveway approach are covered by the required
insurance.
e. Upon written agreement of the parties.
Upon alteration of the intersection or conveyance of the property, the parties or
their successors may enter into a new License Agreement for continued use of
the driveway access.
Upon termination of this License, Licensee must, at Licensee's sole expense,
remove the curb cut and driveway approach and restore the terrace in a manner
and to a condition satisfactory to the City.
5. Licensee releases the City of Oshkosh, its employees, agents, elected officials,
and authorized volunteers from all debt, claims, demands, damages, actions and
causes of action whatsoever which are related to this License or which may
result from the construction and use of the curb cut and driveway approach.
Licensee shall protect and hold the City of Oshkosh harmless against all actions,
claims and demands of any kind or character whatsoever which are related to
the License herein granted or which may result from the construction and use of
the curb cut and driveway approach. Licensee agrees that this paragraph shall
be liberally construed in favor of the City of Oshkosh, in consideration of the
privilege granted by the City under this agreement.
6. At all times this License is in effect, Licensee shall maintain property liability
insurance over all potential liabilities related to the driveway access, curb cut and
driveway approach. Licensee's insurance shall provide reasonable coverage for
potential damages to persons and property cause wholly, or in part, by the
driveway access, driveway and driveway apron. Such insurance may be
provided separately or may be included within Licensee's general liability policy
covering the Property. Upon request, Licensee shall provide proof of insurance
coverage to the City.
7. This agreement is solely for the benefit of the two parties to this agreement, and
it is not intended to benefit any third party.
8. This License is a privilege granted to the Licensee, its employees, customers
and invitees, and shall not be assignable by Licensee in whole or in part. This
License is revocable pursuant to the terms herein and does not create any
estate, interest, lease, covenant or any other right to the possession of or
interest in the property over which access is granted.
9. The election to enforce or not enforce, as well as the timing of enforcement,
shall be at the City's sole discretion and shall not act as a waiver of any rights to
exercise any right relating to this License in the future.
10. This agreement shall incorporate all immunities and limitations provided to
municipalities within the Wisconsin Statutes, regardless of whether a claim is
based upon contract, tort, or other theory.
11. Entire Agreement. This License, together with the Parties Development
Agreement, constitute the entire agreement between the parties, and any other
prior understandings or representations made by either party shall not be
binding on either party unless incorporated within this document, the
Development Agreement or a written amendment thereto.
SIGNATURE PAGE FOLLOWS
WINNEBAOO COUNTY)
Personally came before me this day of , 2013, the above
named Mark A. Rohloff, City Manager for the City of Oshkosh, and Pamela R.
Ubrig, City Clerk for the City of Oshkosh, to me known to be such persons who
executed the foregoing instrument and acknowledged the same, for the purpose
herein contained.
Notary Public, Winnebago County, Wisconsin
My Commission expires:
CONVENIENCE STORE INVESTMENTS,
A Wisconsin Limned Partrjprship
ME
Mich I J Arfces, President of
Co en' nce Store Investments,
In ., G i0neral Partner
STATE OF WISCONSIN)
LA CRDS�E ) ss.
COUNTY )
Personally came before me this IM day of tal+ll . , 2013, the above
named Michael J. Ancius, President of Convenience Store Investments, Inc.,
General Partner of Convenience Stare Investments, a Wisconsin Limited
Partnership, to me known to be such person who executed the foregoing
instrument and acknowledged the same, for the purpose herein contained.
a
i
'N► Notary Public, County, Wisconsin
'; 0', My Commission expires_ 18 - 1(0
k{ATIE
H s KLUG r '
Draft Date: June 18, 2013 4
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CERTIFIED SURVEY MAP NO.
PART OF THE N.E. 1/4 AND THE N.W. 1/4 OF THE S.E. 1/4 OF SECTION 18,
T18N, R16E, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN.
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0 DENOTES FOUND 1 INCH DIAMETER IRON PIPE
UNLESS OTHERWISE NOTED.
() DENOTES RECORD DlMENSfON WHERE
DIFFERENT FROM ACTUAL MEASUREMENT
0 100 200 300
SCALE 1" = 100'
JOB NO, 5038 6
CURVE
BEARINGS ARE BASED ON
v
THE WISCONSIN COUNTY
4w
COORDINATE SYSTEM,
,.
WINNEBAGO COUNTY, WHICH
102.86
BEARS SOUTH 00'28'43"
N83'45'22 "W
EAST ON THE EAST LINE
C2
OF THE SOUTHEAST
389.53'
QUARTER OF SECTION 16,
N61'43'23 "W
TOWN 18 NORTH, RANGE
C3
16 EAST,
Q DENOTES 1 INCH DIAMETER IRON PIPE
18 INCHES LONG SET, WEIGHING
NOT LESS THAN 1.13 LOS PER LINEAL FOOT.
0 DENOTES FOUND 1 INCH DIAMETER IRON PIPE
UNLESS OTHERWISE NOTED.
() DENOTES RECORD DlMENSfON WHERE
DIFFERENT FROM ACTUAL MEASUREMENT
0 100 200 300
SCALE 1" = 100'
JOB NO, 5038 6
CURVE
RADIUS
ARC LENGTH
CHORD LENGTH
CHORD BEARING
DELTA ANGLE
Cl
485.00'
102.86
102.66'
N83'45'22 "W
12'09 :03"
C2
397.00'
389.53'
374.09'
N61'43'23 "W
56'13'01"
C3
199.50'
99.49'
98.46'
N7S32 42 "W
28'34'24"
C4
397.00'
40.02'
40.00'
N47'26'15 "W
05'46'31"
05
169.50'
84.53'
83,66'
S75'32'42 "E
28'34'24
DATE
04/09/20 t9
' */ WISCON
SBEET:
9 OF
319 DAYOT1 ZEE YAP OMRO, WI 54.963
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