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HomeMy WebLinkAbout09. 17-05 JANUARY 10, 2017 17-05 RESOLUTION (CARRIED___7-0____LOST________LAID OVER________WITHDRAWN________) PURPOSE: APPROVE PRIVATE WATER MAIN AGREEMENT WITH FAIR ACRES TOWNHOMES LLC AND DGB INVESTMENTS, LLC FOR DEVELOPMENT OF LAND-LOCKED PARCELS INITIATED BY: DEPARTMENT OF PUBLIC WORKS BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials are hereby authorized to enter into and take those steps necessary to implement an appropriate private water main agreement with Fair Acres Townhomes LLC, and DGB Investments, LLC for development of land-locked parcels. City of� Oshkosh MEMORANDUM TO: Honorable Mayor and Members of the Common Council FROM: Steven M. Gohde, Assistant Director of Public Works�i DATE: January 5, 2017 RE: Approve Private Water Main Agreement with Fair Acres Town Homes LLC, Ted Thomsen, and Peter Frederickson for Development of Land -Locked Parcels BACKGROUND Fair Acres Town Homes LLC (Fair Acres) previously developed their properties with a private water main that services the apartment buildings and two vacant lots. Fair Acres has sold the two vacant lots to Ted Thomsen and Peter Frederickson (Developers). The Developers desire to connect to this private water main, as access to a public water main is not readily available. In order for the Developers to connect to the private water main, clarification and formalization of the easements, responsibilities, and agreements among the parties, including the City, were required. ANALYSIS The agreement allows the Developers to connect to the private water main and ensures the City stays compliant with Public Service Commission requirements. FISCAL IMPACT There is no fiscal impact to the City. RECOMMENDATIONS I recommend the Common Council approve this private water main agreement. Approved: -I- K.1_45r_ Mark A. Rohloff City Manager SMG/tlt 1:\ Engineering \ Tracy Taylor \ Memos to Mayor & Common Council \ 2017\ Private Wtr Mn mAgreement- Page )_ Ot ]. Fair Acres Townhomes Meo 1-5-17.docu I I I I Document No AMENDED AND RESTATED SEWER AND WATERMAIN EASEMENT AGREEMENT ( I I I I I I I I I I I I Return to: Jason J. Hirschberg Hirschberg Law, LLC 601 Oregon Street, Suite A Oshkosh, WI 54902 I Part of 915-1497-02, 915-1497- 04, 915-1497-06 & 915-1497-07 Parcel Numbers This Amended and Restated Sewer and Watermain Easement Agreement ("Agreement") is made this day of December, 2016 by the following: PARTIES A. Fair Acre Townhomes, LLC, a Wisconsin limited liability company ("Fair Acre"), with an address of 230 Ohio Street, Suite 200, Oshkosh, WI 54902. B. DGB Investments, LLC, a Wisconsin limited liability company ("DGB"), with an address of N9023 Townline Road, Van Dyne, WI 54979. C. The City of Oshkosh, a regulatory body (the "City"), with an address of P.O. Box 1130, Oshkosh, WI 54903. RECITALS: A. Fair Acre is the fee holder of certain real property in the City of Oshkosh, Winnebago County, State of Wisconsin, as successor in interest to 1900 Jackson Street, LLC ("Jackson") as more particularly described as follows ("Parcel 1"): Lot Four (4) of Certified Survey Map No. 6566, recorded September 20, 2011, in Volume 1 of Certified Survey Maps on page 6566 as Document No. 1581050, in the office of the Register of Deeds for Winnebago County, Wisconsin, being a re - division of Lot 1 and Lot 2 of Certified Survey Map No.2091 and Lot 1 of Certified Survey Map No. 5815, all being a part of the Southwest % of the Southwest % of Section 12, all in Township 18 North, Range 16 East, City of Oshkosh, Winnebago County, Wisconsin. B. DGB is the fee holder of certain real property in the City of Oshkosh, Winnebago County, State of Wisconsin, as successor in interest to Jackson, as more particularly described as follows ("Parcel 2"): Lot Two (2) of Certified Survey Map No. 6566, recorded September 20, 2011, in Volume 1 of Certified Survey Maps on page 6566 as Document No. 1581050, in the office of the Register of Deeds for Winnebago County, Wisconsin, being a re - division of Lot 1 and Lot 2 of Certified Survey Map No.2091 and Lot 1 of Certified Survey Map No. 5815, all being a part of the Southwest'/4 of the Southwest 114 of Section 12, all in Township 18 North, Range 16 East, City of Oshkosh, Winnebago County, Wisconsin. C. DGB is the fee holder of certain real property in the City of Oshkosh, Winnebago County, State of Wisconsin, as successor in interest to Jackson, as more particularly described as follows ("Parcel 3"): Lot Three (3) of Certified Survey Map No. 6566, recorded September 20, 2011, in Volume 1 of Certified Survey Maps on page 6566 as Document No. 1581050, In the office of the Register of Deeds for Winnebago County, Wisconsin, being a re -division of Lot 1 and Lot 2 of Certified Survey Map No.2091 and Lot 1 of Certified Survey Map No. 5815, all being a part of the Southwest % of the Southwest'/4 of Section 12, all in Township 18 North, Range 16 East, City of Oshkosh, Winnebago County, Wisconsin. D. Fair Acre desires to amend and restate the grant of a permanent easement (the "Easement") over certain portions of Parcel 1 as such portions are described on the attached Exhibit A and incorporated herein (the "Utility Easement Area") for the benefit of Parcels 2 and 3 for sanitary sewers, sanitary laterals, water laterals, water mains and a private water main (collectively, the "Private Main"). E. The Agreement amends and restates in its entirety that certain Sewer and Watermain Easement Agreement dated October 24, 2011 which was recorded with the Winnebago County Register of Deeds on October 24, 2011 as Document Number 1584225 ("Initial Easement Agreement"). F. The parties desire to amend and restate the Initial Easement Agreement. AGREEMENT For good and valuable consideration, the foregoing Recitals, and such other consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby amend the Initial Easement Agreement by deleting the Initial Easement Agreement in its entirety and replacing and restating the same in its entirety with the following: 1. Recitals. The Recitals are a part of this Agreement. 2. Grant of Easement. Fair Acre, as owner of Parcel 1, grants unto DGB, owner of Parcels 2 and 3, and its licensees, successors and assigns, a perpetual easement and right-of- way to use, reconstruct, repair, maintain, operate, supplement, and alter the Private Main system, that may from time to time be required, with the right of ingress and egress for the purpose of this grant, over the Utility Easement Area. All improvements shall be located below grade. The owners of Parcel 2 and Parcel 3 shall be responsible for the costs and expenses to connect to the Private Main, the costs to repair and restore the affected area on Parcel 1, if any, and for all future repair and maintenance expenses associated with the portion of the Private Main located on Parcel 2 and Parcel 3. The owner of Parcel 1 shall be responsible for maintaining, repairing, and replacing the portion of the Private Main located on Parcel 1. The costs and expenses incurred in maintaining, repairing and replacing the Private Main, including any expenses incurred by the owner of Parcel 1 pursuant to Section 3(g) herein, shall be referred to as the "Private Main Expenses." The owner of Parcel 1 shall be responsible for seventy-five (75%) of all Private Main Expenses; and the owner of Parcel 2 and Parcel 3 shall be collectively responsible for twenty-five (25%) of all Private Main Expenses. The owners of each individual parcel shall be solely responsible for the costs of installing, maintaining, repairing, and replacing the portions of the Private Main which serve only each owner's respective parcel. 3. As required by the City of Oshkosh, Wisconsin statutes, the Public Service Commission of Wisconsin, and all other laws applicable to the City's water utility: a. Although the Private Maln system contains complexities not found with the many private water services lines found in the City, the City will treat the Private Main in the same or similar manner as it treats private services lines leaving public water mains. More specifically, the City will remain responsible only for the public water main and service up to and through the first valve located adjacent to the public main but within the public right-of-way and the owner of the private service, in this case Fair Acre, DGB or their respective successors, are ultimately responsible for the Private Main after it leaves the first valve. The City is not a party to, nor has an interest in, any agreement that Fair Acre, DGB or their respective successors, enter into with others for matters including maintenance, repairs and replacement of the Private Main, or payments for water services provided; b. Fair Acre and DGB have Installed or will install valves serving Parcel 1, Parcel 2 and Parcel 3 described herein. Fair Acre, DGB and their respective successors in interest, agree to maintain such valves in service in the future, in the manner required by applicable law. Installation, maintenance and replacement of such valves and any disruption caused by such installation work, is not the City's responsibility and are at the risk, expense and discretion of Fair Acre and DGB. It is the City's expectation that all private water main issues will be addressed and resolved by the property owners, and the City is not bound by the internal agreements of the property owners. The City shall at all times be allowed to take any lawful action as may be allowed by the Public Service Commission or by any other lawful authority, regardless of whether or not such authority is the subject of City policy at the time this Agreement is executed. The City's consent to this Agreement is not intended to alter or restrict any of its lawful authority. In the event that Fair Acre, DGB, and their respective successors In interest, do not (in violation of this Agreement) maintain such valves in service in the manner required hereby, the City may be required under certain circumstances to use the valve associated and located on the Private Main, located within the public right-of-way and attached to the beginning of the Private Main, to tum off water to all users of the Private Main. C. In accordance with Public Service Commission rules and other applicable laws, rules, and ordinances, the City retains the right to enter the properties on which the Private Main is located, or which are served by the Private Main, for purposes of reading meters, inspecting for leaks, or any other lawful purpose; d. The City shall not perform any maintenance or repairs on any part of the Private Main. In the event that the City becomes aware of a leak or other problem with the system requiring an interruption of service for some or all of the Private Main, to prevent further unmetered waste and allow repairs, the City will notify the affected owner or owners, or their successor, of the problem and provide an opportunity to isolate the problem within the time permitted by the Public Service Commission code ("PSC Code") or other applicable law. The failure or inability to isolate the problem within the City's applicable time period will require the City to interrupt service for all users of the Private Main through use of the valve in the right-of- way. The foregoing notwithstanding, in all cases in which a dangerous condition exists, the City may close the valve in the right-of-way immediately and without notice. All parties agree to make good faith efforts to resolve issues without interruptions of service. In the event water service to Parcel 1, Parcel 2 or Parcel 3 is interrupted due to the failure of the owner of the Parcel 1, Parcel 2 or Parcel 3 to so isolate the problem within the time permitted by the PSC Code, the Owner responsible for such interruption hereby agrees to reimburse the Owner of the other parcels for any and all damages to the Owner of the other parcels caused by such interruption. e. Each owner of Parcel 1, Parcel 2 and Parcel 3 agree that Parcel 1 shall be separately metered from Parcel 2 and Parcel 3 and in compliance with any applicable ordinances, regulations, or statutes, and each water user shall be separately responsible for payment to the City of any amounts due as a result of each individual parcel's water use. The preceding sentence is intended to apply only to the owners of Parcel 1, Parcel 2 and Parcel 3. Failure to timely pay all water bills when due may result in the placement of the unpaid amounts as a lien against the property on the tax bill of the property on which the water meter is located. The City reserves the right to change its enforcement policy in the future to allow disconnection for nonpayment to the extent allowed by the Public Service Commission. In all cases the City may take any action allowed by the Public Service Commission or any other lawful action, regardless of whether or not such authority is the subject of City policy at the time this Agreement is executed. The City's consent to this Agreement is not intended to alter or restrict any of its lawful authority. Such disconnections of service would occur at the valve adjacent to the public water main in the public right-of-way and therefore would affect all users of the private main. In the event water service to Parcel 1, Parcel 2 or Parcel 3 is interrupted due to the failure of the owner of Parcel 1, Parcel 2 or Parcel 3 to timely pay Its respective water bill, the Owner responsible for such interruption hereby agrees to reimburse the Owner of the other parcels for any and all damages to the Owner of the other parcels caused by such interruption. f. Each owner of Parcel 1, Parcel 2 or Parcel 3 served by the Private Main agrees to indemnify and hold the City harmless with respect to the repair, maintenance and operation of the Private Main, and shall fully indemnify the City for all claims and costs related to the Private Main. In no circumstance, shall the City be responsible for any damages related to the Private Main. The damages as to which the City shall be harmless include personal or property damage, costs or damage related to leakage or water service provided, loss of business, or any related damage; g. In the event of a leak in the Private Main, or in the event of any modification of any statute City ordinance, regulation, or administrative standard or approval with which the City must comply or which the City must enforce, the City may require the installation, at the expense of the owner of Parcel 1, of a master meter, meter pit and other associated materials and equipment where the Private Main meets the public main. Such requirements shall be imposed only where permitted or required by rules of the Public Service Commission or other applicable law, and in a manner substantially similar to application of such laws or ordinances to other similarly -situated properties. Additional valves and meters may be installed to address the verification of usage, the functionality or flexibility of the Private Main system if Fair Acre, DGB or their respective successors in interest wish to install such facilities; h. The terms of this Agreement are not meant to limit, alter, or modify the City's ability to operate its water utility as allowed or required by City rules, statutes, Public Service Commission rules, the City Utility Rate File, or any other applicable laws; i. The City makes no interpretations, concessions, agreements, or waivers of any other issue or term of this Agreement except as explicitly stated in this agreement. 4. Indemnification. The parties hereto each indemnity and save the other harmless from and against all loss, costs (including reasonable attorney fees), injury, death, damage to persons or property that at any time during the term of this Agreement may be suffered or sustained by any person or entity in connection with activities conducted on the others parcel relating to this Agreement, regardless of the cause of the injury, except to the extent caused by the gross negligence or misconduct of the owner of such parcel or its agents or employees. The parties hereto each indemnify and save the other harmless from any and all liability, damages, expense, cause of action, suit, claim, or judgment arising out of the failure by any party to timely pay any amounts owed to the City for the use of the Private Main, or failure by any party to maintain its respective portion of the Private Main as required by this Agreement. The City is not a "party" as that term is used in this paragraph. 5. Consistent Uses Allowed. Fair Acre, as the owner of Parcel 1, reserves the right to use the Easement for purposes that will not interfere with the owners of Parcels 2 or 3's full enjoyment of the Easement rights granted in this Agreement. 6. Restoration of Surface. The owners of Parcels 2 and 3 shall restore the surface disturbed by any construction or maintenance of any equipment located within the Easement to its condition before the disturbance. 7. Covenants Run with Land. All terms and conditions in this Agreement, including the benefits and burdens, shall run with the land and shall be binding upon, inure to the benefit of, and be enforceable by the owners of Parcels 1, 2 and 3 and their respective successors and assigns. Fair Acre and any successor or assign to Fair Acre as fee simple owner of Parcel 1 shall cease to have any liability under this Agreement with respect to facts or circumstances arising after the party has transferred its fee simple interest in Parcel 1. 8. Non -Use. Non-use or limited use of the Easement rights granted in this Agreement shall not prevent the benefiting party from later use of the Easement rights to the fullest extent authorized in this Agreement. 9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Wisconsin. 10. Entire Agreement. This Agreement sets forth the entire understanding of the parties and may not be changed except by a written document executed and acknowledged by all parties to this Agreement and duly recorded in the office of the Register of Deeds of Winnebago County, Wisconsin. 11. Notices. All notices to either party to this Agreement shall be delivered in person or sent by certified mail, postage prepaid, return receipt requested, to the other party at that party's last known address. If the other party's address is not known to the party desiring to send a notice, the party sending the notice may use the address to which the other party's property tax bills are sent. Either party may change its address for notice by providing written notice to the other party. 12. Invalidity. If any term or condition of this Agreement, or the application of this Agreement to any person or circumstance, shall be deemed invalid or unenforceable, the remainder of this Agreement, or the application of the term or condition to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each term and condition shall be valid and enforceable to the fullest extent permitted by law. 13. Waiver. No delay or omission by any party in exercising any right or power arising out of any default under any of the terms or conditions of this Agreement shall be construed to be a waiver of the right or power. A waiver by a party of any of the obligations of the other party shall not be construed to be a waiver of any breach of any other terms or conditions of this Agreement. 14. Enforcement. Enforcement of this Agreement may be by proceedings at law or in equity against any person or persons violating or attempting or threatening to violate any term or condition in this Agreement, either to restrain or prevent the violation or to obtain any other relief. If a suit is brought to enforce this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney fees, from the non -prevailing party. 15. No Merger. The parties intend that the interests of this Agreement and the fee ownership of the parcels not merge, even though the interest of Parcel 2 and Parcel 3 are presently owned by DGB. 16. No Public Dedication. Nothing in this Agreement shall be deemed a gift or dedication of any portion of the easements granted under this Agreement to the general public or for any public purpose whatsoever. {SIGNATURE PAGE FOLLOWS} Dated: D ble FAIR ACRE TOWNHOMES, LLC Owner of Parcel 1 By: Andrew J. Dumke, Managing Member ACKNOWLEDGMENT STATE OF co r ) ) ss. COUNTY OF ba ) This instrument was acknowledged before me on December 2016 by Andrew J. Dumke as Managing Member of Fair Acre Townhomes, LLC. ,.••.,, '�• fff C s • NE A. T9,0 �Q NOTAR y•��� - Name: s .0 Notary Public, State of db My commission expires: Zey 7/7 PUBLIC •'•. OF WISE f f f f f.•• f CONSENT OF MORTGAGEE The undersigned, being the holder of a mortgage against Parcel 1, consents to the grant of the Easement set forth above and agrees that its interest in Parcel 1 shall be subject to the Easement. Dated: FANNIE MAE, a corporation duly organized under the Federal National Mortgage Association Charter Act By: Name: Title: ACKNOWLEDGMENT STATE OF ) ss. COUNTY OF This instrument was acknowledged before me on December , 2016 by , the of Fannie Mae. Name: Notary Public, State of My commission expires: CONSENT OF MORTGAGEE The undersigned, being the holder of a mortgage against Parcel 1, consents to the grant of the Easement set forth above and agrees that its interest in Parcel 1 shall be subject to the Easement. Dated: WISCONSIN DEPARTMENT OF ADMINISTRATION, an Agency of the State of Wisconsin By: Name: Title: ACKNOWLEDGMENT STATE OF ) ) ss. COUNTY OF ) This instrument was acknowledged before me on December , 2016 by , the of the Wisconsin Department of Administration. Name: Notary Public, State of _ My commission expires: Dated: (z 12 DGB INVESTMENTS, LLC, Owner of Parcel 2 and Parcel 3 By: / Ste Name: bl & �f !e A Af a A -41 - Title: m -Q. A.L- i -e k ACKNOWLEDGMENT STATE OFC j5e-D s ) ss. COUNTY OF f. 'nv, �� ) Th' st was acknowledged before me on December 25, 2016 by _ / �lra- the mew r-- of DGB Investments, LLC. Name -'—a r Notary Public, State of My commission expires: 221222 0l. Dated: THE CITY OF OSHKOSH By: Mark A. Rohlof, City Manager By: Pamela R. Ubrig, City Clerk ACKNOWLEDGMENT STATE OF WISCONSIN ) ) ss. COUNTY OF WINNEBAGO ) This instrument was acknowledged before me on December , 2016 by Mark A. Rohloff and Pamela R. Ubrig of the City of Oshkosh. Name: Notary Public, State of Wisconsin My commission expires: APPROVED AS TO FORM: Lynn A. Lorenson, City Attorney This document was drafted by: Jason J. Hirschberg Hirschberg Law, LLC 601 Oregon Street, Suite A Oshkosh, WI 54902 EXHIBIT A DESCRIPTION OF A 25.00 FOOT WIDE SANITARY SEWER AND WATERMAIN EASEMENT BEING A PART OF LOT 4, CERTIFIED SURVEY MAP NO. 6566, RECORDED IN VOLUME 1, PAGE 6566, CERTIFIED SURVEY MAPS, WINNEBAGO COUNTY REGISTER OF DEEDS OFFICE AS DOCUMENT NO. 1581050 AND BEING A PART OF THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4, SECTION 12, T. 18 N., R. 16 E., FIFTEENTH WARD, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN. Commencing at the Southeast corner of said Lot 4; thence North 000-18'-53" East along the East line of said Lot 4, said line also being the Westerly right-of-way line of North Main Street, 351.57 feet to the point of beginning; thence North 900-00'-00" West along the centerline of a 25.00 foot Sanitary Sewer and Watermain Easement, 167.39 feet; thence South 58°-11'-33" West along said centerline, 87.58 feet to a point hereinafter to be described as REFERENCE POINT "A"; thence continuing South 580-11'-33' West along said centerline, 19.37 feet; thence North 900-00'-00" West, 114.84 feet, more or less, to a West line of said Lot 4, and to point of terminus of said centerline. Boundary of said 25.00 foot wide easement is to be a line 12.50 feet parallel with and on either side of described centerline, said easement boundary on either side of said centerline to be extending to the East and West property line of said Lot 4. Fc1.1 1p� DESCRIPTION OF A 15.00 FOOT WIDE WATERMAIN EASEMENT BEING A PART OF LOT 4, CERTIFIED SURVEY MAP NO. 6566, RECORDED IN VOLUME 1, PAGE 6566, CERTIFIED SURVEY MAPS, WINNEBAGO COUNTY REGISTER OF DEEDS OFFICE AS DOCUMENT NO. 1581050 AND BEING A PART OF THE SOUTHWEST 114 OF THE SOUTHWEST 114, SECTION 12, T. 18 N., R. 16 E., FIFTEENTH WARD, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN. Beginning at the previously described REFERENCE POINT "A"; thence North 330-38'-17" West along the centerline of a 15.00 foot wide Watermain Easement, 51.05 feet; thence North 220- 33'-32" West along said centerline, 144.10 feet; thence North 440-33'-51" West along said centerline, 84.72 feet; thence North 000-02'-27" East along said centerline, 138.35 feet, more or less, to the North line of said Lot 4, said line also being the Southerly right-of-way line of Viola Avenue and to the point of terminus of said centerline. Boundary of said 15.00 foot wide easement is to be a line 7.50 feet parallel with and on either side of described centerline, said easement boundary on either side of said centerline to be extending to the North property line of said Lot 4.