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HomeMy WebLinkAbout08-480DECEMBER 9, 2008 08 -480 RESOLUTION (CARRIED PURPOSE INITIATED BY LOST LAID OVER WITHDRAWN ) APPROVE DEVELOPER'S AGREEMENT FOR MEADOW PARK/ MEADOW PARK DRIVE — W. 20th AVENUE TO 1,523 FEET SOUTH DEPARTMENT OF PUBLIC WORKS BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Developer's Agreement between the City of Oshkosh and Oshkosh Office Building, LLC for the construction of Meadow Park Drive — W. 20th Avenue to 1,523 feet South (including utilities; sidewalk; grading and graveling; and concrete paving) is hereby approved and the proper City officials are hereby authorized to execute and deliver the agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Agreement. 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 hearing; 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 October 14, 2008, 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 Oshkosh Office Building, LLC ( "DEVELOPER "), in reliance on the representation and covenants made herein, as follows: Developer covenants and warrants that it is the owner of all the property described as follows: MEADOW PARK Lots 1 & 2 of CSM # Meadow Park Drive — W. 20 Avenue to 1,523 feet south 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 and Laterals, Water Main and 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 and Laterals, Water Main and Laterals, Storm Sewer, Sidewalk, Grading and Graveling, and Concrete Paving All services and installations shall be according to plans and specifications, and subject to the approval and acceptance, of the City Engineer. 4. No building permits will be issued for any lot 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 roads. No building permits will be issued for any lots 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 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. 5. 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. 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 and Laterals, Water Main and Laterals, Storm Sewer, Sidewalk, Grading and Graveling, and Concrete Paving 6. 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 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. 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. 9. 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. 10. 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 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. 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. 12. 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. 13. 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: September -ZoZ , 2008. In the Presence of: 1 .11.... OSHKOSH OFFICE BUILDING, LLC zc" Rodney R. Oilschlager President, Midwest Real Estate Development Co., Inc. Developer's Address: 2990 Universal Street, Suite B Oshkosh, WI 54904 CITY OF OSHKOSH M Mark A. Rohloff, City Manager Approved as to Form and Execution: And: Lynn A. Lorenson, City Attorney STATE OF WISCONSIN SS. Pamela R. Ubrig, City Clerk Personally came before me this day of September, 2008, the above -named Mark A. Rohloff, 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. WINNEBAGO COUNTY Notary Public, Winnebago Co., WI My Commission expires /is: This document drafted by: Attorney Lynn A. Lorenson, City Attorney Oshkosh, WI 54902 -1130 STATE OF WISCONSIN ) ) SS. WINNEBAGO COUNTY ) Personally came before me this ja day of September, 2008, the above -named Rodney R. Oilschlager, to me known to be the person t who executed the foregoing i nu fS�i me known to be such e b 5a e$�rt�'4fation, and acknowledged t�t'he exec 4 instrument as etirlieWAr A(s th�hlced of said corporation, ( 0 OOf HKOlH ON THE WATER MEMORANDUM TO: Honorable Mayor and Members of the Common Council FROM: Steven M. Gohde, Assistant Director of Public Works DATE: December 4, 2008 RE: Approval of Developers Agreement for Meadow Park and establish street grades for Meadow Park Drive BACKGROUND Midwest Reality wishes to develop land on the south side of 20 Ave. just east of the YMCA property. The Council previously approved the right -of -way dedication for Meadow Park Drive in September of 2008. The developer's agreement ensures the City will be reimbursed the cost for inspecting the installation of the utilities and street. The developer submitted plans for review and they have been approved. ANALYSIS Engineering reviewed the estimated costs and prepared the agreement. The street grades and utility plans have been prepared to meet City standards. FISCAL IMPACT All construction is done by private contract and the City will be reimbursed for the costs of inspection. RECOMMENDATIONS I recommend approval of the Developers Agreement for improvements to Meadow Park Drive and establishing the street grades. Respectfully Submitted, Steven M. Gohde Asst. Director of Public Works Approved: City Manager MWeekly Newsletter\Dev Agree Memo.doc