HomeMy WebLinkAboutCypress Homes & Realty Developers Agreement/Waiver of Sp Asses (2011) CITY OF OSHKOSH
LEGAL DEPARTMENT
. 215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130
PHONE: (920)236-5115 FAX(920)236-5106
LETTER OF TRANSMITTAL
To: Cypress Homes & Realty Date: September 27, 2011
1500 W. College Avenue Project: Developer's Agreement
Appleton, WI 54914 From: Carol Marchant
Re: Developer's Agreement
Attn: Michael Blank Waiver of Special Assessment Notice
Please find: ® Attached ❑ Under Separate Cover
❑ Copy of Letter ® Contracts ❑ Amendment ❑ Report ❑ Agenda
❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans
❑ Specifications ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other
Quantity Description
1 Fully signed Developer's Agreement (copy)
1 Waiver of Special Assessment Notices and Hearing (copy)
These are being transmitted as indicated below:
❑ For Approval ® For Your Use ❑ As Requested ❑ For Review&Comment
Remarks:
Signed: ,,,e,` 4.&'i
cc: City Clerk(original)
Public Works, Engineering (copy)
City Attorney(copy)
I:\Attorney\FORMS-Office forms\Transmittal Form-Developers Agreement.doc
WAIVER 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 storm sewer and street patch across N. Main
Street.
For private construction and public inspection of storm sewer, including grading of lots.
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 from the
construction of such improvements is in proportion to the footage thereof:
Description of Premises
Lots 1,2 and 3 of CSM 6535 and
Lots 1,2 and 3 of CSM 6536
1. Storm Sewer (Public Construction), From existing storm sewer main in Main Street to 10'
onto Lot 3, CSM 6536. Includes restoration.
Estimated Construction Cost $12,000 Public
No cost to developer
2. Storm Sewer w/Inlets (Private Construction), From end of Public construction above to Lot
1, CSM 6535 within dedicated easement. Storm Sewer Lateral connections must be made to
each home when constructed.
Estimated Construction Cost $14,070 Private
3% Inspection $844 Invoice
4—Year Irrevocable Letter of Credit for Private Construction or deposit= $14,070
Inspection service fee deposit= $844
2—Year Irrevocable Letter of Credit After Acceptance of Private Construction= $2,814
Signature of Owner:
MI A _ q , r0- 11
Signature of A .orized Representative Date
Michael Blank, President
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
September 27, 2011, 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
Cypress Homes & Reality ("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:
Lots 1,2 and 3 of CSM 6535 and
Lots 1,2 and 3 of CSM 6536
2. Developer has requested, and consents to, services from and installation by
City of various improvements described as follows:
Installation of storm sewer across N. Main Street to 10' into Lot 3 of CSM
6536.
Survey and Inspection Services for Private Construction of :
Storm Sewer and Laterals
3. The Developer shall install, and the City expressly consents to Developer
installation of the following improvements:
Storm Sewer and Laterals within the rear yard storm sewer and drainage easement,
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. 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. Payment for City Services
The Developer shall supply a cash deposit for survey and inspection fees as shown
on attached Exhibit "A" which may be drawn upon by the City for payment for the
services provided. The City shall provide to the Developer an accounting of all
draws from the cash deposit. If the amount due, exceeds the cash deposit, the City
shall invoice the Developer for the difference between the amount due and the
amount drawn from the cash deposit. The Developer shall pay all invoices, in
cash, within 30 days of invoice from the City. If the amount of the cash deposit
exceeds the amount due for services provided, the City shall refund to the
Developer the deposit amount in excess of the amount due for services.
Survey and Inspection Fees for:
Storm Sewer and Laterals
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. Prior to approval by the Common Council, the Developer shall file a four 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 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. 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 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 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 2:7 , 2011.
In the Presence of:
Iskkit'lL
By: Michael Bla
President
Cyress Homes & Realty
Developer's Address:
1500 W. College Ave., Suite A
Appleton, WI 54914
CITY OF OSHKOSH
By: ,--14./;•--/{4-,1 And: _
Mark A. Rohloff, City Manager er Pamela R. Ubrig, City Clerk a
Apprif d as to Firm -r y d Execution:
nn Al i orenson,,' Mttorney
STATE OF WISCONSIN ) STATE OF WISCONSIN
SS.
WINNEBAGO COUNTY ) SS WINNEBAGO COUNTY
Personally came before me this ( day of Personally came before me this; O'day of
September,2011,the above-named Mark A. Rohloff,City September, 2011, the above-named Michael
Manager, and Pamela R. Ubrig, City Clerk, of the City of Blank, to me known to be the person(s)who
Oshkosh,a municipal corporation,to me known to be the executed the foregoing instrument and to me
persons who executed the foregoing instrument, and to known to be such officer of said corporation,
me known to be such officers of said corporation, and and acknowledged that he executed the
acknowledged that they executed the foregoing foregoing instrument as such off er as the
instrument as such officers as the deed of said deef said rporatin bye i s a ority.
corporation, by its authority.
n Notary Pu Wi 46.so County, WI
My Commission expires/is: <,2-02- //
Notary Public, Winnebago Co., WI
My Commission expires/is:2-2 cf-/
This document drafted by:
Attorney Lynn A. Lorenson, City Attorney
Oshkosh, WI 54902-1130
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 performance bond or letter of credit guaranteeing completion of private
construction within three (3) years.
Letter(s)of credit 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. Letters of credit shall be
for four (4) 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 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 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