HomeMy WebLinkAboutHunters Ridge (1-16)
DEVELOPER'S AGREEMENT
FOR FINANCING IMPROVEMENTS
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.
WHEREAS, the Common Council of the City of Oshkosh approved initial and final
resolutions pursuant to Section 66.0703 of the Wisconsin Statutes upon execution and
approval of a waiver, executed by the undersigned, developer of property herein described
of special assessment notices and hearingj and
WHEREAS, the undersigned developer has agreed, in consideration of installation
of various improvements and performance of services, to pay the full cost of such
improvements/services and related costs through invoice and/or special assessment
financing pursuant to Section 25-83 through 25-89 of the Oshkosh Municipal Code upon
certification by the City Engineer for the City of Oshkosh that said improvements have been
completed, except for certain improvements which may be installed by and/or paid for by
the undersigned developer; and
WHEREAS, the Common Council of the City of Oshkosh by resolution adopted
August 24, 2004, authorized and directed the proper City officials to enter into an
appropriate agreement to provide for full payment by the undersigned developer of said
improvements and related costs, and related matters;
NOW, THEREFORE, IT IS HEREBY AGREED to by and between the City of
Oshkosh, a municipal corporation located in Winnebago County, Wisconsin ("CITY") and
Midwest Real Estate Development Co., Inc., John J. Mark, President ("DEVELOPER"), in
reliance on the representation and covenants made herein, as follows:
1 . Developer covenants and warrants that it is the owner of all the property
described as follows:
Hunters Ridge
Buildings 1-16
2. 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:
Sanitary Sewer, Water Main, Sanitary and Water Laterals, Storm Sewer, Sidewalk,
Grading and Graveling and Concrete Paving
3. The Developer shall install, and the City expressly consents to Developer
installation of the following improvements:
Sanitary Sewer, Water Main, Sanitary and Water Laterals, Storm Sewer, Sidewalk,
Grading and Graveling and Concrete Paving
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All services and installations shall be according to plans and specifications, and
subject to the approval and acceptance, of the City Engineer.
5. No buildings permits shall be issued for any lot to which utilities have not
been extended and/or for any lot to which access has not been provided by graded,
graveled and properly maintained temporary roads. No building permits shall be
issued for any lots for which there has not been substantial completion of all major
grading and associated work required by the grading and drainage plan and the
State of Wisconsin Department of Natural Resources Construction Site Erosion
Control Permit.
Incorporated by reference within this Agreement is the approved grading and
drainage plan as required by Chapter 30 of the Oshkosh Municipal Code. These plans
shall be adhered to and maintained by the respective lot owners in a manner which is
consistent with the original design, function and capacity of the plan. If the respective lot
owners fail, in the sole judgment of the City, to properly maintain the grading and drainage
plan, the City shall give notice of such fact to the respective owner(s) who shall have the
time specified in the notice to correct the deficiencies. If the owner(s) does not
satisfactorily complete the work within the time allotted, the City may enter the property,
using its own employees and equipment or contracting with others to complete the work.
Developer hereby grants in perpetuity to the City reasonable and appropriate access
easements over this subdivision for such purposes. Cost incurred by the City will be levied
against the respective lot(s) as a special charge pursuant to Section 66.0627 of the
Wisconsin Statutes. This provision constitutes Developer's, and any respective lot
owner's, waiver of the notice of hearing and hearing otherwise required by Section 66.0703
of the Wisconsin Statutes. This covenant is intended to run with the land and to survive
any subsequent divestiture of title by Developer, or any respective lot owner(s) to any
successor in title but is not intended to benefit third parties who are not a party to this
agreement.
6. Developer shall pay the actual construction costs incurred by the City for
installation of the above improvements. It is specifically understood by and between the
parties that the amounts set forth in the attached Exhibit "A" 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.
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B.
PAYMENTS UPON INVOICE
The following shall be paid to the City by Developer in cash within 30 days upon
invoice from the City:
Survey and Inspection Fees for: Sanitary Sewer, Water Main, Sanitary and Water
Laterals, Storm Sewer, Sidewalk, Grading and Graveling and Concrete Paving
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7. The attached exhibit, acknowledged by City and Developer as being true and
correct, is incorporated by reference as if fully stated herein.
EXHIBIT "A" - Waiver of Special Assessment Notices and
Hearing under Section 66.0703, Wisconsin Statutes
8. Developer, and any successors in title, covenants and agrees to release the
City, it assigns, employees, agents and contractors from any and all claims arising from the
City's performance of its obligations under this agreement and shall further hold the City
harmless for any and all claims arising from Developer's performance of its obligations
under this agreement, and shall indemnify and refund to the City all sums which the City
may become obligated to pay, including attorney fees, arising from the parties'
performances of this agreement within 30 days of written demand for payment.
9. Any refund which may be due Developer as a result of any special
assessment being in excess of the actual amount paid by City for said improvements is not
assignable by Developer.
10. All privately constructed improvements shall be completed within three years
from the date of this agreement or the Developer shall be considered in default of this
agreement and subject to the provisions of paragraph 12 relating thereto.
11. The Developer shall provide a letter of credit, which meets the approval of
the City Attorney, in an amount equal to the estimated cost of any publicly constructed
improvements or services set forth in Exhibit "A" attached hereto which may be drawn upon
by the City in payment of construction and/or related costs for the public improvements.
Such letter of credit shall be filed in the office of the City Clerk prior to approval of the Final
Plat by the Common Council.
Prior to approval of the Final Plat by the Common Council, the Developer shall file
a three year performance bond or letter of credit, which shall be renewable at the option
of the City of Oshkosh if such construction has not been completed within the three year
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 "A" attached hereto. After written acceptance by the City of any privately
constructed improvements, Developer may submit a letter of credit in the amount specified
in the attached Exhibit "A" as a guarantee of such improvements for a period of two years
from the date of acceptance. The Developer shall be responsible for repairs to said
privately constructed improvements during this two year guaranty period.
Failure to file an appropriate bond shall entitle the City to stop all construction work
upon the project 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 and/or 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
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appropriate. In addition to any equitable relief, the City may seek monetary damages and
upon judgment shall be entitled to its costs and fees in pursuit of any action under the
terms of this paragraph.
12. 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 Agreement upon each and every lot
within the subdivision. Such assessments shall be imposed on the individual parcels in
accordance with such parcel's share of the amount to which the City is entitled in
accordance with this Agreement and which amount has not been paid by the Developer
of such parcel or its successors or assigns. 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 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. This covenant
is intended to run with the land and to survive any subsequent divestiture of title by
Developer to, and shall be binding on, any successor in title. The remedies provided in this
Agreement are not exclusive. The City may use any other remedies available to it.
13. Developer agrees to pay any costs associated with the maintenance or
replacement of water stop boxes damaged during the development of this subdivision. It
shall not be necessary for the City to determine or establish by whom the damage was
done. Developer also agrees to pay any costs associated with maintenance to the gravel
street base which may be necessary during the period prior to pavement construction.
Developer shall pay the actual costs incurred by the City within 30 days upon invoice from
the City.
14. This Agreement and its attachments, may be recorded at City's option, and
if so done, this document shall serve as Notice of Lien against such properties.
IN WITNESS WHEREOF, the parties heretofore have caused this Agreement to be
signed by the proper persons of each party and their corporate seals, if any, to be hereunto
affixed.
Dated: August 1..2-,2004.
In the Presence of:
MIDWEST REAL ESTATE
DEVELOPMENT CO., INC.
(Developer)
~ .-:..- --Y ,,-.----....---
William P. Mark, Secretary/Treas.
(See following page for notary public signature.)
Developer's Address:
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By: ,-
¡chard A. Wollangk, City Manager
Approved as to Form and Execution:
This document drafted by:
Attorney Warren P. Kraft, City Attorney
Oshkosh, WI 54903-1130
)
) SS.
WINNEBAGO COUNTY )
Personally came before me this J~ l:.J..
day of August, 2004, the above-named
William P. Mark, Secretary/Treasurer of
Midwest Real Estate Development Co.
to me known to be the person who
executed the foregoing instrument, and
to me known to be such officer of said
corporation, and acknowledged that he
executed the foregoing instrument as
such officer as the de of said
c Roratio[1, by its autho it~.
STATE OF WISCONSIN
Nota lie, Winneg.qgo County, WI
My Commission: ~ -~
And:
STATE OF WISCONSIN
S8.
WINNEBAGO COUNTY
- _'7fPersonally came before me this
~ day of August, 2004, the above-
named Richard A. Wollangk, City Manager,
and Pamela R. Ubrig, City Clerk, of the City
of Oshkosh, a municipal corporation, to me
known to be the persons who executed the
foregoing instrument, and to me known to be
such officers of said corporation, and
acknowledged that they executed the
foregoing instrument as such officers as the
deed said corporation, by its authority.
Notary Public, Win ago Co., WI
My Commission expiresfis;. 1- f -' {}ØrJ6
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WAIVER OF SPECIAL ASSESSMENT NOTICES AND
HEARING UNDER SECTION 66.0703, WISCONSIN STATUTES
The undersigned, 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 surveying and inspection for sanitary sewer, stonn sewer,
water main, laterals, grading and graveling, sidewalk and concrete paving.
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 the benefit of my property from the
construction of such improvements is in proportion to the footage thereof:
Description of Premises
Hunters Ridge
Buildings 1-16
White Tail Lane
1. Sanitary Sewer (Private Construction)
Estimated Construction Cost $79,303.00 Private
6% Survey and Inspection $ 4,758.18 (Invoice)
2. Water Main (Private Construction)
Estimated Construction Cost $68,315.00 Private
6% Survey and Inspection $ 4,098.90 (Invoice)
3. Sanitary and Water Laterals (Private Construction)
Estimated Construction Cost $27,680.00 Private
6% Survey and Inspection $ 1,660.80 (Invoice)
4. Storm Sewer (Private Construction)
Estimated Construction Cost $124,105.00 Private
6% Survey and Inspection $ 7,446.30 (Invoice)
5. Sidewalk (Private Construction)
To include handicapped ramps
Estimated Construction Cost $40,800.00
6% Survey and Inspection $ 2,448.00 (Invoice)
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Page 2
Hunters Ridge
6. Grading and Graveling (private Construction)
Estimated Construction Cost $99,034.00
6% Survey and Inspection $ 5,942.04 (Invoice)
7. Concrete Paving (Private Construction - Year 2007)
Includes terrace restoration
Estimated Construction Cost $228,555.00
6% Survey and Inspection $ 13,713.30 (Invoice)
3 - Year Letter of Credit for Private Construction = $667,792.00
3 - Year Letter of Credit for Public Services = $40,067.52
2 - Year Letter of Credit Guarantee After Acceptance of Private Construction= $133,558.40
Signature of Owner:
~:..---.r~Date ~-I?-Ó~
William P. Mark
Secretary/Treasurer