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HomeMy WebLinkAboutStoney Beach W Lots 1-22/Amend ~'" - , ~ . ~.Á:..- ., Document Number AMENDED DEVELOPER'S AGREEMENT FOR FINANCING IMPROVEMENTS DocumEnt TItle 1. 33aøøa REGISTER'S OFFICE WINNEBAGO COUNTY, WI RECORDED ON 12/09/2004 10:08AM SUSAN WINNINGHOFF REGISTER OF DEEDS RECORDING FEE 31.00 TRANSFER FEE i OF PAGES 11 STONEY BEACH WEST SUBDIVISION LOTS 1-22 and 1 Outlot Recording Area Name and Return Address CITY ATTORNEY PO BOX 1130 OSHKOSH WI 54902-1130 Parcel Identification Nwnber (PIN) // 0/11 ThiG information must be completed by submitter: dowment ri¡{t:, IWme & rerum address, and PIN (if required). G¡her information such as ¡he granting douses, legal description, etc. moy be placed on this first page of the document or moy be placed o/laddiriOllOl pages of ¡¡Ie docummt, Note: Use of this cova page addsont: page to your documt:nt and $2.00 to the rt:Cordinl; fa. Wisconsin SIan/res, 59.517. WRDA 2/96 " AMENDED DEVELOPER'S AGREEMENT FOR FINANCING IMPROVEMENTS THIS AGREEMENT is made pursuant to Section 66.60 of the Wisconsin Statutes . providing for levying and assessing the cost of various improvements to the property herein described. WHEREAS, on July 13, 2004, the Common Council of the City of Oshkosh approved initial and final resolutions pursuant to Section 66.60 of the Wisconsin Statutes upon execution and approval of a waiver, executed by the developer of property herein described of special assessment notices and hearing and authorized the appropriate city officials to enter into a development agreement for purposes of the same; and WHEREAS, developer 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, Developer has modified the Final Plat for this development eliminating one lot and modifying the widths of other lots within the development; and WHEREAS, it is therefore necessary to revise the waiver and developer agreement to take into consideration those modifications made by Developer. NOW, THEREFORE, IT IS HEREBY AGREED to by and between the City of Oshkosh, a municipal corporation located in Winnebago County, Wisconsin ("CITY") and Stoney Beach West, LLC ("DEVELOPER") , in reliance on the representation and covenants made herein, as follows: 1. City and Developer intend that this agreement shall supercede and replace in all respects a previous agreement between the parties. The parties further agree that said prior agreement is hereby terminated and the parties have no further obligations thereunder. 2. as follows: Developer covenants and warrants that it is the owner of all the property described Stoney Beach West Subdivision Lots 1-22 and 1 Outlot 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, Water Main, Sanitary and Water Laterals, Storm Sewer " , . < Laterals, Storm Sewer and Grading and Graveling Survey and Inspection Services and Public Construction of : Sidewalk Design, Survey and Inspection Services and Public Construction of: Concrete Paving 4. City, or its designee, shall install the following improvements: Sidewalk and Concrete Paving Developer may request a permit from the Public Works Department for the construction of sidewalk. If the Developer requests such permit and meets all requirements for the issuance of such permit, Developer may construct the sidewalk privately. If Developer constructs the sidewalk privately, any funds escrowed from the sale of lots within the subdivision shall be returned to Developer upon acceptance of the sidewalk by the City. 5. 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 Laterals, Storm Sewer and Grading and Graveling All services and installations shall be according to plans and specifications, and subject to the approval and acceptance, of the City Engineer. 6. 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. 7. 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. Notwithstanding, anything in this Agreement to the contrary, if the Common Council determines to waive special assessments for concrete paving for properties know as 2782 and 2816 Fond du Lac Road to a depth of 169.76 ft. east of Fond du Lac Road, the Developer shall be responsible for payment of these assessments. A. SPECIAL ASSESSMENTS The Developer shall pay as special assessment cost for: Sidewalk and Concrete Paving in installments pursuant to Sections 25-83 through 89 of the Oshkosh Municipal Code in which case such installment payments are to bear interest at the rate of eight percent (8%) per annum on the unpaid balance. Notwithstanding the foregoing, Developer, immediately upon voluntary divestiture of title to any of the property heretofore described, shall fully pay the outstanding assessments and anticipated future special assessments against the particular parcel or portion thereof subject to divestiture. Divestiture shall mean the transfer of legal title providing Developer does not retain any lien or mortgage interest in such parcel. In the event Developer retains a lien or mortgage interest in such parcel, the assessments shall be paid in full within one (1) year from the date of sale. In the event Developer sells by land contract, the assessments shall be paid in full within one (1) year from the date of the land contract. When payment is to be made within one year from the date of sale or contract under this paragraph, written notice must be given to the City Clerk informing her of the date of sale or contract. ., 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 Laterals, Storm Sewer and Grading and Graveling C. GRADING, GRAVELING AND PUBLIC UTILITIES /2816 Fond du Lac Road & 2782 Fond du Lac Road: . Pursuant to the determination of the Common Council that no benefit will accrue to the owners of 2816 Fond du Lac Road and that no benefit will accrue to the owners of 2782 Fond du Lac Road unless/until such time as the property located at 2782 Fond du Lac Road may be subdivided, Developer shall pay all costs for grading, graveling and public utilities along Gibson Court to a depth of 169.76 feet adjacent to 2816 Fond du Lac Road and 2782 Fond du Lac Road. Developer shall pay all costs for grading, graveling and public utilities for the remaining depth of 2782 Fond du Lac Road, which amount shall be refunded to Developer upon payment to the City of Oshkosh of the deferred special assessments per Resolution #04-168 of the Oshkosh Common Council. No interest shall accrue on the amount of the assessments.. 8. 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 9. 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. 10. 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. 11. 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. 12. 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 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. 13. 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 accorda'nce 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. 14. 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. 15. 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. e¡-rt' Dated: November~, 2004. In the Presence of: CITY OF OSHK~ BY~ Richard A. Wollangk, Ci d Execution: (Developer) ST EY BEACH WEST, LLC Developer's Address: 2'33Co &n f)v... LJtt ReAD DSrI kosH kJI 5'fC¡ð'Z.. I /D" i I Continued on next page- '0 . . SS. ) , ) SS. WINNEBAGO COUNTY ) Personally came before me this c¡ ß. day of November, 2004, the above- named Robert C. Anderson, to me known to be the person(s) who executed the foregoing instrument, and to me known to be an officer acting on behalf of toney Beach West, LLC and ~c h wledged ~ a e. STATE OF WISCONSIN ) ) )' STATE OF WISCONSIN WINNEBAGO COUNTY cÆ Personally came before me this J I day of November, 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 ~f. said corporation, by its authority. ~~ ~"k.J , Nptary Public, Wi~agO Co., WI Mý Commissionexpires~ 1- g -~" Notary Public, Wi~e~.ago County, WI My Commission:' .. ) ) SS. WINNEBAGO COUNTY ) Personally came before me this q fl...- day of November, 2004, the above- named Kathleen M. Lennon, to me known to be the person( s) who executed the foregoing instrument, and to me known to be an officer acting on behalf of ney Beach West, LLC and c no ledged the m STATE OF WISCONSIN Notary Public, Wirmebago co~ My commission:~ This document drafted by: Attorney Lynn A. Lorenson, Asst. City Attorney Oshkosh, WI 54902-1130 . , . WANER 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 public construction, surveying and inspection of sidewalk and concrete paving and for the design of the concrete paving. For Private construction and public surveying and inspection for sanitary sewer, storm sewer, water main, laterals, grading and graveling. 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 ITom the construction of such improvements is in proportion to the footage thereof: Description of Premises Stoney Beach West Subdivision Lots 1-22 and 1 Outlot (Lot 2, Lot 17 and Outlot 1 are not assessable) Gibson Court (Includes stub road at approximately station 17+00) 1. Sanitary Sewer (private Construction) Estimated Construction Cost $67,806 Private 6% Survey and Inspection $ 4,068 Invoice 2. Water Main (Private Construction) Estimated Construction Cost $89,476 Private 6% Survey and Inspection $ 5,369 Invoice 3. Sanitary and Water Laterals (Private Construction) Estimated Construction Cost $23,070 Private 6% Survey and Inspection $ 1,384 Invoice 4, Stonn Sewer Laterals (private Construction) Estimated Construction Cost $13,620 Private 6% Survey and Inspection $ 817 Invoice 5. Stonn Sewer (private Construction) Estimated Construction Cost $73,977 Private 6% Survey and Inspection $ 4,439 Invoice '. Page 2 , Stoney Beach West Subdivision 6. Sidewalk (public Construction) ASSESS Assessment Rate = $20.00 per fi.-ont foot of each lot Includes 6% for inspection and surveying. Lot # Front Feet Sidewalk Cost Estimate 1 292.28 $5,845.60 2 No Sidewalk 3 80.24 $1,604.80 4 65.46 $1,309.20 5 177.82 $3,556.40 6 152.22 $3,044.40 7 40.78 $ 815.60 8 47.41 $ 948.20 9 59.46 $1,189.20 10 60.00 $1,200.00 11 59.24 $1,184.80 12 50.68 $1,013.60 13 44.64 $ 892.80. 14 50.07 $1,001.40 15 54.30 $1,086.00 16 50.22 $1,004.40 17 No Sidewalk 18 176.27 $3,525.40 19 184.96 $3;699.20 20 80.74 $1,614.80 21 228.09 $4,561.80 22 290.75 $5,815.00 Outlot 1 No Sidewalk TOTAL 2245.63 $44,912.60 7. Grading and Graveling (private Construction) Center Line Feet of Roadway = 1525/Lf. Cost per Center Line Foot = $36/Lf Estimated Construction Cost 6% Survey and Inspection Page 3 $54,900.00 $ 3,294.00 (Invoice)