HomeMy WebLinkAboutGabert and Rusch Properties-Developers Agreement 2010 DEVELOPMENT AGREEMENT
This Development Agreement, effective as of the last date of the signatures of the parties
below, is among the Town of Oshkosh ( "Town "), the City of Oshkosh ( "City ") and Gabert and
Rusch Properties ( "Developer ").
Recitals
A. The Developer is planning the construction of a new residential subdivision
located in the City of Oshkosh, Wisconsin, to be known as the Bristol Square Subdivision
("Bristol Square ").
B. Bristol Square will be located north of an existing residential subdivision in the
Town known as Jackson Heights ( "Jackson Heights ").
C. The Developer wishes to provide Bristol Square with ingress and egress from
STH 76 (formerly STH 45, a/k/a Jackson Street). The Wisconsin Department of Transportation
has asserted objections to a new ingress and egress for Bristol Square from STH 76.
D. The Town, the City and the Developer wish to cooperate on facilitating Bristol
Square obtaining ingress and egress from STH 76 in accordance with the terms and conditions of
this Agreement.
In consideration of the above premises, and other good and valuable consideration
mutually acknowledged by the parties, it is agreed as follows:
1. Discontinuance of Norton Avenue. Within 60 days of the execution of this
Agreement by all parties the Town Board shall initiate the statutory procedure to discontinue the
STH 76 access cut at the east end of Norton Avenue. The discontinuance process will be subject
to the legal requirements of applicable Wisconsin law, including Wis. Stats. § §66.1003 and
82.10. Notwithstanding the Town's agreement to prosecute the discontinuance of the east end of
Norton Avenue in good faith and with all deliberate speed, the Town makes no representations
regarding the outcome of the proceedings. The Town will be responsible for the costs of the
discontinuance proceedings; the Developer will be responsible for the project costs.
2. No Access to Jackson Heights. In consideration of the Town's discontinuance of
the access cut at the east end of Norton Avenue, the City and the Developer agree that there will
be no road connection from Bristol Square through Norton Avenue, Western Drive or any other
area within Jackson Heights until 90% of the owners of real estate within Jackson Heights have
annexed their respective properties to the City. This 90% annexation provision does not require
the City or the Developer to extend a road from Bristol Square through Jackson Heights, but
rather is a condition precedent to a road being extended from Bristol Square through Jackson
Heights. The preceding 90% annexation condition is not intended to prevent the Town from
extending a road from Bristol Square to Jackson Heights if the Town Board determines the
extension is necessary to protect the health and safety of the affected residents of Jackson
Heights or if there has been a substantial change in circumstances with Jackson Heights.
3. No Extension of Nielsen Drive. The parties agree that Nielsen Drive, which is
located along the eastern border of Jackson Heights, shall not be extended from its current
northern terminus into Bristol Square.
4. Traffic Hazards Study. The Town and the City agree to cooperate to conduct the
appropriate studies to address traffic hazards that may exist at the Zarling Avenue intersection
with STH 76 recognizing that this intersection will bear additional traffic after the
discontinuance of Norton Avenue as described in Section 1, above.
5. Bristol Square Development Issues. The Developer has informed the Town of the
Developer's intention to provide a recreational park area within or adjacent to Bristol Square.
The Developer acknowledges that the residents of Jackson Heights have expressed an interest in
locating the Bristol Square park so as to both minimize and mitigate conflicting land uses.
Therefore, the Developer will meet with representatives of Jackson Heights to discuss the
location of the planned park. The Developer will consider the comments and concerns of the
Jackson Heights residents. However, the Developer makes no representations regarding the
exact location of the proposed park. If the Developer decides to locate the proposed park in an
area that is not contiguous to Jackson Heights, the Developer agrees that the land use contiguous
to Jackson Heights shall be limited to single - family residential use only. The Developer shall
record the appropriate restrictive covenants or deed restrictions reflecting this single- family
residential land use.
In addition, if the Developer conducts any blasting, whether for roads, ponds, or other
improvements, the Developer acknowledges that all blasting activity shall be conducted in
accordance with existing state and federal rules and regulations. In addition, nothing in this
Agreement shall be construed as a waiver by the residents of Jackson Heights to pursue legal
claims against the Developer for damage caused by the Developer's blasting activity. All rights
are reserved.
6. Approvals. This Agreement is subject to the approval of the Town Board of the
Town of Oshkosh, the City Council of the City of Oshkosh, the legal representatives of the
Developer and the State of Wisconsin Department of Transportation. The parties shall take all
necessary and appropriate action to promptly secure these required approvals. It is a condition
precedent of this Agreement that the Developer obtain all necessary approvals to develop Bristol
Square predominantly as a residential subdivision. This Agreement is null and void if the
Developer is unable to obtain all approvals necessary, or if the Developer determines it is not
feasible, to develop Bristol Square predominantly as a residential subdivision. If Bristol Square
is not developed predominantly as a residential subdivision the Town Board may reopen the east
end of Norton Avenue and the Developer must close its ingress and egress from STH 76. The
Town acknowledges that the Developer retains the right to develop a portion of Bristol Square
for commercial use that is ancillary to the predominant residential use. However, the ancillary
commercial use, if any, shall be limited for the permitted uses identified in the City of Oshkosh's
C -1 "Neighborhood Business District" and, further, that the ancillary commercial use shall not
be contiguous to the properties located in Jackson Heights.
7. Withdrawal of Annexation Petition. Attached and incorporated by reference is a
petition for direct annexation filed by the Developer with the City of Oshkosh. The Developer
shall request the withdrawal of the annexation petition upon the execution of this Agreement. It
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is a condition precedent to this Agreement that the City of Oshkosh consent to the withdrawal of
the annexation petition. This Agreement is null and void if the City refuses to allow the
annexation petition to be withdrawn. The parties acknowledge that the annexation petition will
be stayed pending all required approvals of this Agreement.
8. Intergovernmental Agreement. The Town and the City intend for this Agreement
to be binding upon their current elected officials as well as subsequent Town Boards and City
Councils pursuant to the intergovernmental cooperation provisions of Wis. Stats. §66.0301, as
amended. The parties will not litigate the provisions of this Agreement, except upon breach by
another party.
9. Term. The term of this Agreement is indefinite, subject to the 90% annexation
requirement described in Section 2, above. Notwithstanding anything to the contrary, this
Agreement automatically expires if and when Jackson Heights is annexed to the City.
10. Advancement of Mutual Interests. The parties acknowledge that in order to
effectively implement this Agreement, it may be necessary to obtain the cooperation and
approval of other governmental agencies, including, but not limited to, the State of Wisconsin
Department of Transportation and Winnebago County. In all matters necessary to implement
this Agreement, the parties agree to seek the cooperation and approval of all relevant agencies.
To the extent practicable, the parties will, where necessary to obtain such required approval,
submit a joint request or other appropriate documents requesting the approval.
11. No Waiver. The failure of any party to require strict performance of any
provision of this Agreement shall not constitute a waiver of the provision or of any of the parties'
rights under this Agreement. Rights and obligations under this Agreement may only be waived
or modified in writing. Waiver of one right, or release of one obligation, will not constitute a
waiver or release of any other rights or obligations.
12. Severability. In the event that any portion of this Agreement is invalidated by a
court, the invalidation of said provision shall not affect the validity of any other provision hereof.
IN WITNESS WHEREOF, the parties have caused the execution of this Agreement by
authority of their respective governing bodies and authorized representatives as of the date when
all parties hereto have affixed their respective signatures.
TOWN OF OSHK SH
By:
Gerald R. Frey, Town Chairperson
Attest:
9 1 1 ,%x./
Je e Merten, Town Clerk
3
CITY OF OSHKOSH
By: 1�- -. 4 ,e040--" r k A. Rohioff, city Manager
-Attu.
r
J 4 AIL I ' gill. , k Z..
Pamela R. Ubrig, City Clerk -
Appr v as o Form: DEVELOPE:
.p6 j //
City Attorney I
li41j taiv" 0551 By: A / 4.00P-
A uio h m ° s I Representative 6Al-lid -c/c
4
PETITION FOR DIRECT ANNEXATION BY UNANIMOUS APPROVAL
TO THE COMMON COUNCIL OF THE CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN:
WHEREAS, the undersigned constituting all of the electors and all of the owners of real property in the
territory proposed to be annexed;
NOW, THEREFORE, PETITION IS HEREBY MADE by unanimous approval pursuant to the provisions of
Sec. 66.0217(2) of the Wisconsin Statutes, for direct annexation to the City of Oshkosh, Wisconsin, from the Town of
Oshkosh, Winnebago County, Wisconsin, of the real estate hereinafter described.
That pursuant to Sec. 66.0217(2), petition is hereby made without compliance to the notice requirements of
Sec. 66.0217(4) of the Wisconsin Statutes.
That the current population of the territory to be annexed as defined by Sec. 66.0201(2)(dm) of the Wisconsin
Statutes is zero (0).
That the territory to be annexed is contiguous to the City of Oshkosh is located in the Town of Oshkosh,
Winnebago County, Wisconsin and is described as follows:
JACKSON HEIGHTS II ANNEXATION
ALL OF LOT 3 AND THE WEST HALF OF LOT 2, BOTH IN BLOCK 1 OF JACKSON HEIGHT PLAT,
BEING PART OF THE NORTHEAST 1 A OF THE SOUTHEAST 1 /4 OF SECTION 35, TOWNSHIP 19
NORTH, RANGE 16 EAST, TOWN OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN, DESCRIBED
AS FOLLOWS:
COMMENCING AT THE EAST 1 /4 CORNER OF SAID SECTION 35; THENCE SOUTH 89°59'12" WEST
ALONG THE SOUTH LINE OF THE NORTHEAST 1 /4 OF SAID SECTION 35 A DISTANCE OF 304.27
FEET TO THE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89°59'12" WEST ALONG THE
SOUTH LINE OF THE NORTHEAST 1 A OF SAID SECTION 35, 150.00 FEET TO THE NORTHWEST
CORNER OF LOT 3, BLOCK 1 OF JACKSON HEIGHT PLAT; THENCE SOUTH 00 °27'34" WEST 165.00
FEET TO A POINT ON THE CENTERLINE OF NORTON AVENUE; THENCE NORTH 89 °59' 12" EAST,
150.00 FEET ALONG THE CENTERLINE OF NORTON AVENUE; THENCE NORTH 00 °27'34" EAST,
165.00 FEET TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINS 24,749 SQUARE FEET OR 0.57 ACRES, MORE OR LESS.
That attached hereto is a scale map reasonably showing the boundaries of the following described territory to be annexed
and its relation to the municipalities involved.
QUALIFICATION
(elector and /or
NAME POST OFFICE ADDRESS DATE SIGNED property owner)
Thomas ' usch 807 State Road 21 A Owner
Oshkosh, WI 54904 •; /� E C I E [ Y - E
."/ 4/
..1 MAN 2 5 2010
CITY CLERK'S OFFICE
PETITION FOR TEMPORARY AND PERMANENT ZONING CLASSIFICATION
TO THE COMMON COUNCIL OF THE CITY OF OSHKOSH:
WHEREAS the undersigned are electors and/or property owners in the area being sought to
be annexed to the City of Oshkosh, said area being more particularly described in a certain petition
for unanimous annexation to the City of Oshkosh,
Jackson Heights II Annexation
and,
WHEREAS it is acknowledged by the undersigned that the submitting of this petition does
not in any matter attempt to make said petition for direct annexation conditional upon this petition
or the action taken by the said Common Council pursuant to this petition.
NOW, THEREFORE, the undersigned petition the Common Council of the City of
Oshkosh that the ordinance annexing said territory include a provision temporarily designating the
classification for zoning purposes, pursuant to Sec. 66.0217(8) of the Wisconsin Statutes, until the
zoning ordinance is amended as prescribed in Sec. 62.23(7)(d) of the Wisconsin Statutes, as
follows:
R -1 Single Family Residence District
Qualification
(elector and /or
NAME POST OFFICE ADDRESS DATE SIGNED property owner)
Tho . jr usch 3807 State Road 21 A
//4 Oshkosh, WI 54904 .e-e.61_,./
D -! C -E - V 7 n
MAR 2 5 2010
CITY CLERICS OFFICE
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