HomeMy WebLinkAbout240 Ohio Street/storm sewer 2006
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DEVELOPERrS AGREEMENT
FOR FINANCING IMPROVEMENTS
UTILITY RELOCATION
Document Tide
1407442
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON .
08/09/2006 09:13AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE
TRANSFER FEE
41 OF PAGES
23.00
7
Document Number
240 OHIO STREET
LOT 2 OF CSM 5619
Recording Mea
Name and Return Address
m-------Cny-ATTDR N E Y
PO BOX 1130
OSHKOSH WI 54903-1130
0600021600
Parcel Identification Number (PIN)
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This information must be completed by submitter: document tUft, IUlme &: return address, and PIN {if required). Other information such
as the granting clauses, legal description, etc. may be placed on :his first page of the document or may be placed on additional pages of the
document. /i2!!;. Use of :his cover page adds one page :0 your document and p.OO to :he recordinfi fee. Wisconsin Stanaes, ~?517. WRDA 2/96
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DEVELOPER'S AGREEMENT
FOR FINANCING IMPROVEMENTS
-UTILITY RELOCA TION-
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 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
June 27, 2006, 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
Bros LLC ("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:
240 Ohio Street
Lot 2 of CSM 5619
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:
Storm sewer
3. The Developer shall install, and the City expressly consents to Developer
installation/relocation of the following improvements:
Storm sewer, the developer shall relocate the existing storm sewer line and
dedicate a new easement. Disturbed areas shall be restored to pre-
construction conditions. See Exhibit "A" for sketch.
All services and installations shall be according to plans and specifications, and
subject to the approval and acceptance, of the City Engineer.
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4. The Developer acknowledges the work to be preformed is on an
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existing functioning utility system and must be kept functional to prevent damage
to other properties served by the utility.
In the event the Developer, in the sole opinion of the City, is not performing the work
with adequate diligence and/or is performing the work in a manner likely to cause damage
to other properties and/or is not properly maintaining the utility, 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. Cost incurred by the City will be taken from
the Letter of Credit for Private Construction. Any additional costs 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, waiver of the notice of
hearing and hearing otherwise required by Section 66.0703 of the Wisconsin Statutes.
5. 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 this agreement are estimates only. Invoices 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. PAYMENTS UPON INVOICE
The following shall be paid to the City by Deyeloper in cash within 30 days upon
invoice from the City:
Survey and Inspection Fees for:
Storm sewer
6. 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.
7. All privatelY.constructed public utility work shall be completed within one year
from the date of this agreement or the Developer shall be considered in default of this
agreement and subject to the provisions of paragraph 9 relating thereto.
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8. 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
utility improvements or services set forth below. The letters may be drawn upon by the City
in payment for construction and/or related costs for the public utility improvements. Such
letter of credit shall be filed in the office of the City Clerk prior to approval of the Easement
by the Common Council.
1 Year Irrevocable Letter of Credit for Public Services for $1,146.00
Prior to approval of the Easement by the Common Council, the Developer shall file
a one year performance bond or letter of credit, which shall be renewable at the option of
the City of Oshkosh ifsuch 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 this
agreement. After written acceptance by the City of any privately constructed public utility
improvements, Developer shall submit a letter of credit in the amount below 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.
1 Year Irrevocable Letter of Credit for Private Construction for $19,100.00
2 Year Irrevocable Letter of Credit Guarantee After Acceptance of Private
Construction for $3820.00
Failure to file an appropriate bond/letter shall entitle the City to stop all construction
work upon the project or lot 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/letter 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.
9. In addition to the remedies for default provided to the City by the financial
guarantees contained within this Agreement, should the Developer default, this provision
constitutes Developer's consent to the installation by the City or designee of all utility
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 Wi.sconsin Statutes. This covenant is intended to run
with the land and to survive any subsequent divestiture of title by Developer to, and shaH
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.
10. Developer agrees to pay any costs associated with additional maintenance
or restoration to disturbed areas resulting from this work from the date work begins until
the end of the two year guaranty period. Developer shall pay the actual costs incurred by
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the City within 30 days upon invoice from the City.
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11. 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.
12. The Contractor performing the above work on the Public Utility shall be
Bonded and Licensed to work in City Right-of-Way and shall obtain an Excavation Permit
from the Department of Public Works prior to starting. The Contractor shall contact the
City Engineer at least 24 hours prior to starting to arrange for inspection of the work.
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: :s cJ tVt- ~,,-ft...... , 2006.
In the Presence of:
Bro(J14
by: Ar)drew J. Dumke
Managing Member
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Developer's Address:
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BY:~ And:
Ricnard A. ollangk, City Manager
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STATE OF WISCONSIN )
) SS.
WINNEBAGO COUNTY )
Joti Person before me this
15 day of , 2006, the
above-named chard 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 of said corporation, by its authority.
or:-~_(f L::;ff~~Pl2.DW
Notary Public, Winnebago Co., WI a.
My Commission expires~ I:l. -/~ -01
This document drafted by:
Attorney Warren P. Kraft, City Attorney
Oshkosh, WI 54902-1130
STATE OF WISCONSIN
WINNEBAGO COUNTY
SS.
-rt Personall came before me this
dU day of , 2006, the
above-named An ew J. Dumke to me known
to be the persons who executed the foregoing
instrument, and to me known to be such
officers of Bros LLC, and acknowledged that
they executed the foregoing instrument as
such officers as the deed of said corporation,
by its authority.
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Notary Public, Winnebago County, VVI
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IRREVOCABLE STANDBY LETTER OF CREDIT
ISSUER: WEST POINTE BANK
1750 WITZEL AVENUE
POBOX 2266
OSHKOSH, WI 54903.2266
Date of Issue:06.26-2006
Letter of Credit Number: 85
Amount: U.S. $ 3,820.00
( THREE THOUSAND EIGHT HUNDRED TWENTY AND NO/l00
For Benefit Of:
Beneficiary Name and Address
U.S. DOLLARS)
For Account Of:
Applicant Name and Address
CITY OF OSHKOSH
215 CHURCH AVENUE OSHKOSH, WI 54901
BROS, LLC
491 S. WASHBURN STREET STE 300
OSHKOSH, WI 54904.6733
LETTER OF CREDIT. Issuer establishes this Irrevocable Standby Letter of Credit (Letter of Credit) in favor of Beneficiary in the
amount indicated above. Beneficiary may draw on this Letter of Credit with a Draft (or Drafts, if the maximum number of drawings is
greater than one) together with the documents described below. Each Draft shall be signed on behalf of Beneficiary and be marked
"Drawn under [Issuer name] Letter of Credit No. [Letter of Credit number] dated [Letter of Credit date]." Drafts must be presented at
Issuer's address shown above on or before the Expiration Date. The presentation of any Draft shall reduce the Amount available under
this Letter of Credit by the amount of the Draft.
This Letter of Credit sets forth in full the terms of Issuer's obligation to Beneficiary. This obligation cannot be modified by any
reference in this Letter of Credit, or any document to which this Letter of Credit may be related.
This Letter of Credit expires on the Expiration Date.
DRAWINGS.
D Partial drawings shall not be permitted under this Letter of Credit.
!Xl Partial drawings are permitted. The maximum number of drawings that may be made is 3
DOCUMENTS. Each Draft must be accompanied by the following, in original and two copies except as stated:
D The original Letter of Credit, together with any amendments.
[X) A sight draft drawn by Beneficiary on Issuer.
D A signed statement by Beneficiary including the following statement:
D Other documents:
Issuer shall be entitled to accept a draft and the documentation described above, as required by the terms of this Letter of Credit, from
any person purporting to be an authorized officer or representative of Beneficiary without any obligation or duty on the part of Issuer to
verify the identify or authority of the person presenting the draft and such documentation.
SPECIAL INSTRUCTIONS: LETTER OF CREDIT FOR GUARANTEE AFTER ACCEPTANCE OF PRIVATE CONSTRUCTION AS DETAILED IN THE DEVELOPER'S
AGREEMENT DATED JUNE 27, 2006 BETWEEN THE CITY OF OSHKOSH & BROS, LLC FOR THE PROPERTY LOCATED AT 240 OHIO
STREET, LOT 2 OF CSM 5619
EXPIRATION DATE. This Letter of Credit expires at the close of business at Issuer's address at 5:00 P.M. (Time)
on 06.26.2008 (Date). Issuer agrees to honor all Drafts presented in
strict compliance with the provisions of this Letter of Credit on or before the Expiration Date.
D If Beneficiary has not drawn the full amount of this Letter of Credit prior to the Expiration Date, the Expiration Date shall be
extended for a period of days from the Expiration Date, unless Issuer notifies Beneficiary in writing at least
days prior to the Expiration Date that Issuer elects not to extend this Letter of Credit. In any event, this Letter
of Credit shall expire on without any notice from Issuer to Beneficiary.
~ @2001 Bankers Systems, Inc., St. Cloud, MN Form LC-STANDBY 1/15/2002
(page 1 of 2)
TRANSFERABILITY. This Letter of Credit is D transferable IX] non-transferable.
APPLICABLE LAW. This Letter of Credit shall be governed by:
!XI the Uniform Customs and Practice for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication
No. 500 (UCP), or any later version or amendment.
D the International Standby Practices 1998 (ISP98).
This Letter of Credit shall also be governed by the laws of WISCONSIN , the United States of
America, so long as such laws are not inconsistent with the UCP or ISP, as applicable.
WEST POINTE BANK
(Issuer Name)
By ~~~~~
(Signatur
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(Date)
J. SCOTT SITTER, VICE PRESIDENT
(Signer Name and Title)
~ @2001 Bankers Systems, Inc., St. Cloud, MN Form LC-STANDBY 1/15/2002
(page 2 of 2)