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HomeMy WebLinkAboutD & F InvestmentsAGREEMENT THIS AGREEMENT is made and entered into this /~'g'~ day of January, 2004 by and between D & F Investments of Osl¢osh, LLP, a Wisconsin limited liability partnership ("D & F") and the City of Oshkosh, a Wisconsin municipal corporation (the "City").the following parties: I. RECITALS 1.0i D & F is the owner ora shopping center known as "Radford Squat'e" at the intersection of Wisconsin Street and Pearl Avenue in the City of Oshkosh, Wim~ebago County, Wisconsin. 1.02 D & F requested and the City granted D & F a privilege in the street allowing D & F to construct a pat'king lot extension and related improvements within the right-of-way of Mat-ion Road (the "Privilege in the Street"). 1.03 The Privilege in the Street was granted subject to certain terms and conditions as set forth in the Common Council resolution granting the Privilege in the Street (the "Resolution"). A copy of the Resolution is attached as Exhibit 1 of this Agreement and incorporated herein by reference. 1.04 The City acknowledges that D & F has complied with conditions 1, 4, 5, I0, 12 and 14 of the Resolution. 1.05 D & F aclmowledges and agrees that it has a continuing obligation to comply with conditions 2, 6, 7, 8, 9, 11 and 13. 1.06 D & F has provided the City with written estimates from reputable contractors indicating the cost of installing the eight (8) foot wide path required by condition 3 of the Resolution, completing the final landscaping and completing the other future work required by the City (the "Additional Improvements") will be approximately Fourteen thousand eight hundred forty-three and no/100 Dollars ($14,843.00). 1.07 D & F has agreed to pay to the City and the City has agreed to accept from D & F a payment in the amount of Fourteen Thousand Eight Hundred Forty-three and no/100 Dollars ($14,843.00) in lieu olD & F completing the Additional Improvements. 1.08 D & F are entering into this Agreement for the purpose of more fully setting forth their agreement with respect to the obligations ofD & F under the Privilege in the Street. II. AGREEMENT 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 pat'ties hereby agree as follows: 2.01 2.02 2.03 2.04 2.05 2.06 2.07 Recitals. The foregoing recitals are adopted by the pm~ies, incorporated herein mad made a part of this Agreement. Pa,anent in Lieu of Construction of the Additional Improvements. D & F shall pay the City the sum of Fourteen Thousand Eight Hundred Forty-tl~ree and no/100 Dollars ($14,843.00) in lieu of the construction of the Additional Improvements, which payment accompmaies this Agreement. The City shall use the payment fi'om D & F to construct a paved walking path, complete the landscaping in the tu-ea which is subject to the Privilege in the Street and construct any of the other Additional haaprovements in the manner generally depicted on the site plan attached to the Resolution. The parties acknowledge and agree that the Additional Improvements may not be completed until the State of Wisconsin improves Wisconsin Street, which is estimated to take place in four (4) to five (5) years. The City shall have the right to make the final determination with respect to the specific location, design, construction and timing of the Additional Improvements, so long as they generally confo~xn to the aforementioned site plan and intent of the parties. Upon receipt by the City of the payment required by this Agreement, D & F shall be fully discharged and released from any obligation with respect to the completion of the Additional Improvements. Work to be Completed by D & F. D & F acknowledges and agrees that this Agreement is not intended to release D & F from its obligation to top soil, seed and maintain the area subject to the Privilege in the Street and agrees that the placement of the top soil and seeding will be done at the expense olD & F in the spring of 2004. D & F acknowledges and agrees that this Agreement is not intended to release D & F from its obligation to install the lighting required by condition 2 of the Resolution and agrees that the installation of the lighting will be completed on or before Jannary 31, 2004. Severabilit¥. In the event any term or provision of this Agreement is found to be unenforceable or void, in whole or in part, as drafted, then such term or provision shaI1 be construed as valid and enforceable to the maximum extent permitted by law, and the balance of this Agreement shall remain in full force and effect. Waiver or Modification. The waiver by either party of a breach of any provision o£this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach. No waiver or modification of any provision or limitation contained in this Agreement shall be valid unless in writing, duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence at any proceeding, arbitration or litigation between the parties, unless such waiver or modification is in writing, duly executed by the party charged therewith. .Amendments. This Agreement shall not be amended except by a subsequent written agreement executed by the parties: Entire Agreement. This Agreement supersedes all prior agreements between the parties concerning its subject matter. No oral statements or prior written material not specifically incorporated herein shaI1 be of any force m~d effect and no changes in or additions to this Agreement shall be recognized unless and until made in writing signed by the pm'ties. 2.08 2.09 2.10 2.11 2.12 Govemin~ Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Wisconsin. Arbitration. Any dispute betwveen the parties arising out of or in any way related to the interpretation, implementation, operation or enforcement of this Agreement shall be resolved at binding arbitration conducted in accordance with the rules of the American Arbitration Association. All arbitration proceedings shall be conducted in Wim~ebago County, Wisconsin. Each party shall pay one-half (V2) of the cost of the arbitration proceeding, except any attorney's fees and related costs incmTed by a party, which shall be the sole responsibility of such party. Reading and Understanding. Each person executing this Agreement on behalf of a party acknowledges and agrees that he/she has carefully read and understands this Agreement. Authorization. Each person executing this Agreement on behalf of a patty warrants and represents that he/she has been duly authorized to execute this Agreement and that this Agreement will be binding upon such party in accordance with its terms. Binding Effect. This Agreement 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 on the day and year first written above. D & F INVESTMENTS OF OSHKOSH, LLP CITY OF OSHKOSH This document was drafted by: RUSSELL J. REFF, Attorney at Law SEPTEMBER 23, 2003 03-393 RESOLUTION (CARRIED 7-0 LOST LAID OVER WITHDRAWN ) PURPOSE: AMEND CONDITIONAL USE PERMIT; APPROVE REVISED PLANNED DEVELOPMENT; GRANT PRIVILEGE iN STREET - 30 WISCONSIN STREET INITIATED BY: D&F INVESTMENT, OWNER/PETITIONER PLAN COMMISSION RECOMMENDATION: Approved WHEREAS, the Common Council previously granted a conditional use permit, as -amended, for a planned commercial development on Wisconsin St. withif~ the Marion Rd./Pearl Ave. Redevelopment Project Area for construction of a multi-tenant commercial building and separate restaurant building; and WHEREAS, the petitioner desires to amend the development plan by constructing a parking lot on the south end of the site within the former Marion Road right-of-way; and WHEREAS, Section 66.0425, Wis. Stats., provides for the granting of a privilege in a right-of-way. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the petitioner is hereby granted the privilege of constructing a parking lot within the former Marion Road right-of-way adjacent to 30 Wisconsin Street with conditions as noted below. BE IT FURTHER RESOLVED that the planned commercial development on Wisconsin St. is hereby amended to permit construction of a parking lot on the south end of the site adjacent to 30 Wisconsin Street, per the attached, with the following conditions: 1) A revised landscape plan be submitted to, and approved by, the Dept. of Community Development prior to any parking improvements being constructed in the privilege area. A financial security is to be provided to the City based on the estimated landscaping costs. Form of the financial security is to be determined by the Dept. of Community Development and to be provided prior to parking use in the privilege in street area. SEPTEMBER 23, 2003 03-393 RESOLUTION CONT'D 2) A lighting plan be submitted to, and approved by, the Dept. of Community Development prior to any parking improvements being constructed in the privilege area. Lighting to be installed no later than 3 months following substantial completion of the parking lot improvements. 3) The final width and location of the proposed public pathway is to be determined and approved by the Dept. of Community Development. Petitioner shall assume costs for path construction and shall provide the City with a financial security based on the estimated costs from the approved plan. Form of the financial security is to be determined by the Dept. of Community Development and to be provided prior to parking use in the privilege in street area. 4) The parking lot perimeter is to be curbed with curb design to be approved by the Dept. of c_ommunit~{ Development. 5) A revised stormwater Plan be submitted to, and approved by, the Dept. Of Public Works prior to parking improvements being constructed. . 6) All utilities to be placed in the right-of-way are to be approved by the Dept. of Public Works. 7) If no longer needed any utilities placed in the right~of-way are to be properly abandoned and removed in accordance with City standards and under the direction of the Dept. of Public Works. 8) Any problem which may arise from improvements made in the right-of-way shall be the responsibility of the petitioner/owner to correct in coordination with the Dept. of Public Works. 9) The improvements be modified or removed immediately upon the request of the City. 10) The petitioner/owner secures and submits to the City Clerk a separate insurance policy which names the City as an additional insured with a minimum coverage of $200,000 per person and $500,000 in general aggregate. 11) It is the responsibility of the petitionedowner to file in a timely manner a new insurance certificate with the City Clerk upon expiration of an existing certificate. Failure to d o s o w ill result i n t he r evocation o f t he privilege i n street w ithin ten (10) days o f expiration. 12) The petitionedowner execute a hold harmless agreement with the City. 13) Petitioner shall topsoil and seed with grass the remaining right-of-way area between paved Marion Road and Wisconsin Street and maintain said area. Petitioner is to provide a grading plan for the area subject to review and approval by the Dept. of Public Works. Area is to be seeded no later than November 1,2003. 14) Subject to approval by any or all other:State and Federal authorities in association with the Wisconsin Street bridge reconstruction project. BE IT FURTHER RESOLVED that the Common Council of the City of Oshkosh hereby approves of the Planned District Overlay and final development plan per the attached plan. PEARL AVENUE t~ cu~r cuP/~