HomeMy WebLinkAbout2024-07-11 Lake Butte De Morts Dev AgreeDocument Number
LAKE BUTTE DES MORTS DEVELOPMENT
PHASE
DEVELOPER'S AGREEMENT
Document Title
Description of Property
DOC# 1926151
NATALIE STROHMEYER
REGISTER OF DEEDS
WTMIFRAGsr. M-ULTYAXT
RECORDED ON:
07/11/2024 10:40 AM
RECORDING FEE: 30.00
PAGES: 10
and Return Address
City Attorney Office
P 0 Box 1130
Oshkosh W .54903-11.
Parcel Identification Numt
912-7610-01-00
912-7615-01-00
Lot 1, CSM 8157 Lake Butte des Morts Development Phase I CSM,
recorded with the Winnebago County Register of Deeds at Page 8157 in the
book of Plats on June 27, 2024 as Document Number 1925407, and
being part of the Northwest 1/4of Section 3, Township 18 North,
Range 16 East, City of Oshkosh, Winnebago County, Wisconsin
This instrument drafted by:
Attorney David J. Praska
Oshkosh, WI 54903-1130
(PIN)
(Del
LAKE BUTTE DES MORTS DEVELOPMENT — PHASE I
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, Developer wishes to construct Phase I of a development identified as
Lake Butte des Morts Development Phase I which has been created and recorded as a
Certified Survey Map (CSM) with the Winnebago County Register of Deeds on
Jvht 2"1 , 2024 as Document Number 10\1-5 L b-1 and which designates certain
property for public use and for public right-of-way; and
WHEREAS, the Developer, in consideration of the approval of the development
and provision of public services, will construct, install and/or pay for certain public
improvements necessary within the Lake Butte des Morts Development Phase I property;
and
WHEREAS, the undersigned owner and developer has agreed, in consideration of
installation of various improvements and performance of services by the City for the
benefit of its development, to pay the full cost of such improvements/services and related
costs through invoice and/or special assessment financing pursuant to Section 21-2
through 21-12 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 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 hearing; and
WHEREAS, the Common Council of the City of Oshkosh by Resolution No.
1+ T°i adopted on the 7Yrday of k 2024, 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.
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February 24, 2022
NOW, THEREFORE, IT IS HEREBY AGREED to by and between the City of Oshkosh, a
municipal corporation located in Winnebago County, Wisconsin ("CITY") and Red Earth
LLC., a limited liability company, with is principal offices located at 1201 North Superior
Avenue, Tomah, WI 54660 who is the owner and developer ("DEVELOPER"), in reliance
on the recitals, representation, and covenants made herein, as follows:
1. Developer covenants and warrants that it is the owner of all the property
described as follows:
Lot 1, CSM DS-1 Lake Butte des Morts Development Phase I
CSM, recorded with the Winnebago County Register of Deeds at Page $ in the
book of Plats on 2024 as Document Number ZS4 and
being part of the Northwest 1/4 of Section 3, Township 18 North,
Range 16 East, City of Oshkosh, Winnebago County, Wisconsin,
2. Developer agrees to be responsible for the obligations set forth in this
Agreement, as well as compliance with city -approved plans and all laws, rules, and
regulations which apply to Lake Butte des Morts Development Phase I.
3. 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 and Laterals, Water Main and Laterals, Storm Sewer and Laterals,
Sidewalk, Grading, Graveling, Restoration, Concrete Curb and Gutter and Asphalt
or Concrete Paving, Street Lighting equipment, and installation of lighting
conduit.
Developer shall contact the City Electric Division at 920-232-5350 prior to any public
electric installation.
4. The Developer shall install, and the City expressly consents to Developer
installation of the following improvements:
Sanitary Sewer and Laterals, Water Main and Laterals, Storm Sewer and Laterals,
Sidewalk, Grading, Graveling and Restoration, Detention Basin Grading and
Restoration, Concrete Curb and Gutter and Asphalt or Concrete Paving, Terrace
Trees, Street Lighting equipment, and installation of light poles and conduit.
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February 24, 2022
Owner and Developer shall perform survey, grading, restoration and inspection for all
areas outside of the right of way, including all lot corner elevations. All final restoration
within the Right of Way shall include 6" of topsoil, seed, fertilizer and erosion mat.
All services and installations shall be according to plans and specifications, and
subject to the approval and acceptance, of the City Engineer.
5. No Occupancy Permits will be issued for any building to which utilities
have not been extended to and/or for any lot to which access has not been provided by
graded, graveled and properly maintained temporary public roads. No occupancy
permits will be issued for any building until an "as -built" grading and drainage plan
has been approved by the Department of Public Works. At a minimum, the as -built
plan shall show all drainage features, and lot line grades. The as -built plan shall be
certified by a Professional Engineer (PE) or a Registered Land Surveyor (RLS) licensed
in the State of Wisconsin to be in compliance with the grading and drainage plan
approved by the Department of Public Works. All storm water management facilities
shall be compared to the original design. Any deviation from the design shall be
noted, and the Department of Public Works may require the Developer to confirm that
the as -built facilities comply with the storm water management ordinance.
Incorporated by reference within this Agreement is the approved grading and
drainage plan as required by Chapter 14 and 30 of the Oshkosh Municipal Code. These
plans shall be adhered to and maintained by the developer and any successive owners of
the property in a manner which is consistent with the original design, function and
capacity of the plan. If the respective 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. Owner and 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 parcel(s)
as a special charge pursuant to Section 66.0627 of the Wisconsin Statutes. This provision
constitutes Owner's and 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 Owner and 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.
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February 24, 2022
The Owner and Developer agrees to enter into a Long Term Maintenance
Agreement and Storm Water Management Facility Maintenance Agreement with the City
for Lake Butte des Morts Development Phase I prior to selling any interest in any portion
of the plat for Phase I. The agreement will establish who shall be responsible for the long
term maintenance of storm water features, including but not limited to any required
detention basin maintenance, sidewalk maintenance and future special assessments. This
Storm Water Maintenance Agreement will be a separate Agreement for the Lake Butte
des Morts Development Phase I.
6. CITY SERVICES. 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
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.
A. Payment for City Services
The Owner and Developer shall supply a cash payment prior to approval of this
Agreement for the services to be provided by the City. The cost is included in Exhibit
„A„
The Developer shall provide a cash payment, in an amount equal to the estimated
cost for any publicly constructed improvements and/or services set forth in Exhibit "A"
attached hereto which shall be drawn upon by the City in payment of construction and/or
related costs for the public improvements. Payment shall be filed in the office of the City
Clerk prior to approval of this Agreement by the Common Council.
Survey and Inspection Fees for:
Sanitary Sewer and Laterals, Water Main and Laterals, Storm Sewer and Laterals,
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February 24, 2022
Sidewalk, Grading, Graveling, Restoration, Concrete Curb and Gutter and Asphalt
or Concrete Paving, Street Lighting equipment, and installation of lighting
conduit.
The Developer shall pay all invoices, in cash, within 30 days of invoice from the
City for additional services:
7. 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.
8. All privately constructed public improvements shall be completed within
one year from the date of this agreement or the Owner and Developer shall be considered
in default of this agreement and subject to the provisions of paragraph 11 relating thereto.
9. PRIVATELY CONSTRUCTED IMPROVEMENTS.
Prior to approval by the Common Council, the Owner and Developer shall file a
two 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 one 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.
The Developer may request a reduction in the letter of credit once annually for
work that is complete, but not accepted. The City will review the request and reduce the
letter of credit as it deems appropriate, portions of the value for the work completed will
be retained until the guarantee letter of credit is filled.
After written acceptance by the City of any privately constructed improvements,
Developer shall 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 Owner and Developer shall be responsible for repairs to said privately
constructed improvements during this two year guaranty period.
February 24, 2022
Failure to file an appropriate letter of credit 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 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.
10. Any deficiencies found in or resulting from the private construction of the
public infrastructure must be provided to the Developer in writing. The City will work
in good faith to determine an appropriate schedule for when the corrective actions need
to take place.
11. 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.
11. Developer agrees to pay any costs associated with maintenance to the
gravel street base or asphalt base which may be necessary during the period prior to
permeant pavement construction. If the City should incur any costs for maintenance or
repair under this paragraph, Developer shall pay the actual costs incurred by the City
within 30 days upon invoice from the City.
12. This Agreement and its attachments, may be recorded at City's option, and if
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February 24, 2022
so done, this document shall serve as Notice of Lien against all affected properties within
Lake Butte des Morts Development Phase I.
IN WITNESS WHEREOF, the parties heretofore have caused this Agreement to be
signed by the proper persons of each party and their corporate seals,
affixed. LORA HEROLD
Notary Public
Wisconsin
Dated:0.� �0 2024. State of
In the Presence of: � Developer fon,rniss i`an QXPiYe s
a?/05�o�U aZ(o
Jake Buswell
1201 North Superior Avenue, Tomah, WI 54660
CITY OF OSHKOSH
By:
Ma k A. Rohloff, City Manager
And: (Do
Diane Bartlett, City Clerk
App oved as o F rm:
'
L A A. Loren o , City Attorney
STATE OF WISCONSIN )
SS.
WINNEBAGO COUNTY )
Personally came before me this __q__ day of
% Vne 2024, the above -named Mark A. Rohloff,
City Manager, and Diane Bartlett, 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 of said corporation, by its
authorit7n �— n PA�
.Notary, Public, Winnebago Co., WIWiinnne1'bago Co., WI
-:My Commission expires/is: 1 ` a-
This,document drafted by:
Attorney David J. Praska, Deputy City Attorney
Oshkosh, WI 54902-1130
7
February 24, 2022
STATE OF WISCONSIN )
) SS.
WINNEBAGO COUNTY )
Personally came before me thi day of
2024, the ove-named Jake
Buswell, to me known t e the person(s) who
executed the foregoi instrument and to me
known to be such ersons, and acknowledged
that he executed a foregoing instrument as such
officer as th deed of said corporation, by its
authority.
Notaublic, Winnebago County, WI
My,Commission expires/is:
DEVELOPER AGREEMENT REQUIREMENTS
BEFORE adoption of the Developer Agreement by the City Council, the following
items must be filed with the Office of the City Clerk:
A signed waiver
A Cash Deposit in the amount of any publicly constructed improvements or services
which may be drawn upon by the City in payment of construction and/or related costs
for the public improvements.
A performance bond or letter of credit guaranteeing completion of private construction
within two (2) years.
Please contact the Department of Public Works with any questions in this regard.
After private construction is complete, a two year letter of credit, which meets the
approval of the City Attorney, may be filed in an amount equal to 20% of the total
construction cost to guarantee the privately constructed improvements. Upon the
written acceptance of the work by the City and the filing of this two year letter of credit,
the letter of credit or bond specified above may be released.
Written approval of private construction under a Developer Agreement will be
issued by Public Works when the work is completed. Please contact the Department of
Public Works with any questions in this regard.
An invoice will be issued by the Finance Director when notified by the Public
Works Department that work is completed. Invoices must be paid within thirty (30) days
from the date of invoice. Payments should be made to the Collections Division.
ANY change in the assessments or construction (private or public) that have been
authorized through a Developer Agreement MUST be amended through Council action.
Please contact the Department of Public Works to initiate any corrections in this regard.
This agreement requires the Owner and Developer, immediately upon transfer of
title to any of the property included within the agreement to fully pay the outstanding
assessments and anticipated future special assessments against the transferred parcel or
portion. If you are transferring the property to another developer and would like to
request amendment to the Developer's Agreement to reflect that transfer, please contact
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February 24, 2022
either the City Clerk or City Attorney's office in this regard.
Phone Numbers:
Department of Public Works City Clerk's Office Director of Finance
236-5065 236-5011 236-5005
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February 24, 2022