HomeMy WebLinkAbout20. 15-216
APRIL 28, 2015 15-216 RESOLUTION
(CARRIED___7-0___LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE DEVELOPMENT AGREEMENT & WAIVER OF
SPECIAL ASSESSMENT PROCEEDINGS FOR CONSTRUCTION
OF SODA CREEK ROAD/JACKTAR ROAD AND MEDIAN
IMPROVEMENTS ON JACKSON STREET
INITIATED BY: COMMUNITY DEVELOPMENT
BE IT RESOLVED by the common Council of the City of Oshkosh that the proper
City officials are hereby authorized and directed to enter into a Development Agreement
with PREMIER SODA CREEK LLC, with the following conditions, for the construction of
the Soda Creek Road/Jacktar Road and median improvements on Jackson Street, in
association with the construction of a multifamily development, in substantially the same
form as attached, 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 approved Agreement.
1. All parcels included in the development must be owned by one entity.
2. A retracement CSM must be submitted to city staff showing the parcels
combined with the wetlands and easements included.
3. The Agreement must be signed by the owner of the parcel which the
development will be taking place.
4. Waiver of Special Assessment must be signed by the owner.
5. The following financial guarantees must be submitted:
a. Cash Deposit for Public Services- $18,033.60
b. Letter of Credit- $395,060.00
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6. All items must be completed and submitted to city staff by July 7, 2015.
BE IT FURTHER RESOLVED by the Common Council of the City of Oshkosh
that the Waiver of Special Assessment Notices and Hearing under Section
66.0703(7)(b) of the Wisconsin Statutes, for public improvements and services as
described in the attached Waiver is accepted and approved.
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JHKO.fH
ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Allen Davis
Community Development Director
DATE: April 28, 2015
RE: Res 15- Development Agreement and Waiver of Special Assessment
Proceedings related to the Soda Creek multifamily development, Jacktar Road, Soda
Creek Road and Jackson Street
BACKGROUND
The City Council approved the Soda Creek multifamily project as a Planned Development in
2013 with the condition that a public street with utilities between Jacktar/Soda Creek Roads
would be constructed along with a right-in/right-out restricted drive and median improvements
on Jackson Street to ensure proper vehicular access to the development. Since that time,
the developer has worked with city staff on the plans for the connection of the two streets and
alterations to the median on Jackson Street. All of the requirements placed upon the
development that went before the City Council previously for approval were incorporated into
the plans and a Development Agreement.
The typical Development Agreement provides for a Letter of Credit for the developer's cost
for the improvements. In this case, the developer will also sign a Waiver of Special
Assessment. Both of these instruments are financial guarantees to insure the developer, not
the City or adjoining property owners, will pay for the improvements in the right of way.
ANALYSIS
The connection of Soda Creek and Jacktar Roads and the right-in/right-out restricted drive on
Jackson Street is due to the Soda Creek multifamily development that requires multiple
access points in and out of the development for proper vehicular access. The project will
require modifications to the streets and will follow closely with the City and WisDOT street
and highway design specifications. The modifications are as follows:
• Construct a public street with utilities and sidewalk connecting Jacktar Road and Soda
Creek Road.
• Install a raised un-mountable median on Jackson Street to limit traffic to right-in and
right-out of development.
• Installation of other right-of-way and public improvements as specified in the
Agreement and site plans.
The developer for the Soda Creek multifamily development will provide the financial
guarantees as required in the typical Development Agreement. These guarantees must be
submitted before work can commence. The estimated cost of the public improvements is
$396,060. The modifications will take place when the multifamily buildings are under
construction. Traffic on Jacktar and Soda Creek Roads will remain open during construction
and traffic on Jackson Street will require one lane going each direction open at all times.
Construction will start in July 2015 and be completed in 2016.
Development Agreement: The Development Agreement will be signed by the owner of the
property and all financial guarantees must be submitted prior to approval of any required
permits for work on site and in the right-of-way.
Waiver of Special Assessment: A Development Agreement always requires the developer
to provide a Letter of Credit to guarantee the improvements in the right-of-way. If the
developer fails to perform, the City can draw on the Letter of Credit to complete the work. The
Waiver of Special Assessment is an additional financial guarantee. If the developer fails to
construct any of the improvements or maintain the improvements, the City can perform the
work and assess the developer the costs as a Special Assessment against their property. All
of the requirements placed upon the development when the City Council approved the
development have been incorporated into the Development Agreement.
FISCAL IMPACT
The Development Agreement includes a requirement for a Letter of Credit and Cash Deposit
for Public Services (which is 6% of the total cost) for the project. If the developer fails to
perform, the Waiver of Special Assessment will allow the City to perform the work and assess
the developer with the Special Assessment. Both financial guarantees will insure there is no
fiscal impact to the City.
RECOMMENDATION
The City Council approves the Development Agreement and Waiver of Special Assessment
as proposed.
Approved,
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City Manager
DEVELOPMENT AGREEMENT
Premier Soda Creek LLC
4362-4408 Jackson Street, 4187-4401 Soda Creek Road
This DEVELOPMENT AGREEMENT ("Agreement"), made and entered into this
day of , 2015, is by and between the CITY OF OSHKOSH, a
Wisconsin municipality with its principal offices located at 215 Church Ave., P.O. Box
1130, Oshkosh, WI 54903-1130, ("City") and PREMIER SODA CREEK LLC, a
Wisconsin limited liability company, with its principal offices located at 19105 W.
Capital Drive, Suite 200, Brookfield, WI 53045 ("Developer"):
RECITALS
Developer desires to construct a multifamily apartment complex development on an
approximately 17.5 acre parcel zoned for R-3, Multiple Family Dwelling District use
located at the east side of Jackson Street, south of Soda Creek Road and north of Kope
Avenue in the City of Oshkosh, (the "Property") more particularly described as follows:
Lot 1 of Certified Survey Map No. XXXX, recorded on July XX, 2015 in Volume XX of
Certified Survey Maps, Page XXXX, as Document No. XXXXXXX, being a part of the
Northwest '/4 of the Northwest '/ and the Southwest '/4 of the Northwest '/, Section 36,
Town 19 North, Range 16 East, 15th Ward, City of Oshkosh, County of Winnebago,
Wisconsin.
Developer has changed the street layout from the preliminary plat approved for
the area. The resulting layout would have created two dead end streets longer than
allowed by municipal code and two dead end water mains. The construction of a public
street with utilities between Jacktar Road and Soda Creek Road will create an
acceptable alternative to the original preliminary plat.
By Resolution 13-455 (October 8th, 2013), the Common Council conditionally
approved the planned development of the Project Site for a multiple family
development, east of Jackson Street, south of Soda Creek Road and north of Kope
Avenue, including construction of public road with driveway access between Jacktar
Road and Soda Creek Road. The Common Council conditioned approval upon the
Developer entering into an appropriate developer's agreement providing for the
payment by Developer of all costs for work associated with construction of the public
improvements and conditioned upon the Developer providing security for the proposed
improvements in a form acceptable to the City.
Developer shall install right-of-way and other improvements as specified in Article
II of this Agreement in accordance with the Project Plans and pay the full cost of such
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improvements.
By Resolutions 15 , on April 28th, 2015, the Common Council of the City of
Oshkosh authorized and directed the proper City officials to enter into this Agreement to
provide for installation of the improvements to the site development between Jackson
Street and Soda Creek Road and payment by the Developer of all costs pertaining to
the Project and approved initial and final resolutions and accepted the waiver of special
assessment notices and hearing pursuant to Section 66.0703 of the Wisconsin Statutes
for inspection services pertaining to Developer's installation of the improvements listed
in Article II.
NOW THEREFORE, in consideration of the foregoing recitals that are
incorporated herein and made a part of this Agreement, the promises, covenants and
agreements contained in this Agreement and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the Developer and the City
promise, covenant and agree as follows:
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.
ARTICLE I. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
A. "Completion Date" shall mean July 15th, 2016 or such date as the City
Engineer certifies that all improvements within the public right-of-way and
Winnebago County Park pertaining to the Project have been completed and
accepted by the City, State of Wisconsin DOT and Winnebago County whichever
is earlier.
B. "Project" means the construction of right-of-way improvements including
construction of the roadway of Soda Creek Road, the median on Jackson Street,
as required by the Wisconsin Dept. of Transportation, and the paved pedestrian
trail all adjacent to a proposed multifamily apartment complex on Lot 1 CSM
XXXX within the City of Oshkosh, all in conformance with the approved plans and
in compliance with City of Oshkosh Standards and Specifications, Winnebago
County Specifications or Wisconsin Department of Transportation Specifications,
whichever is relevant, and as shown on attached Exhibit A. The City of Oshkosh
shall have the right in its sole discretion to stop work on the Project Site and work
directly affected on the Property if right of way work is not being done according
to the Project Plans or Property work is not complying with terms of the
agreement.
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The Project also includes construction of a pedestrian trail, a wet stormwater
management basin and the related storm sewer piping and ditching within
easements on the Property.
C. "Project Plans" means final detailed plans and specifications for the
Project as approved and on file in the City of Oshkosh Department of Public
Works. See attached Exhibit A for approximate work area.
D. "Proiect Site" means the right-of-way and Winnebago County Park land
adjacent to the Property and easement areas granted to the City of Oshkosh
within the Property as shown on attached Exhibit A.
E. "Propert rL" means the parcel of land comprised of an approximately 17.5
acre parcel zoned for multiple family dwelling use located at or near the
intersection of Jackson Street and Soda Creek Road within the City of Oshkosh
and the adjacent right-of-way areas more particularly described above in Exhibit
B.
ARTICLE II. Project Overview. The Developer will construct the Project on the
Project Site in accordance with the Project Plans as approved by the City of Oshkosh,
Wisconsin Department of Transportation and Winnebago County.
Work within the Jackson Street Right of Way is to be done in accordance with the
Wisconsin Department of Transportation's approved plans and State of Wisconsin
Department of Transportation Standard Specifications for Highway and Structure
Construction.
Work within the Jacktar Road and Soda Creek Road Rights of Way and all work done
within easements granted to the City within the Property shall be done in accordance
with City of Oshkosh approved plans and Standard Specifications for City of Oshkosh,
current version at the time the work is performed.
Work within the Winnebago County Park shall be done in accordance with Winnebago
County approved plans and specification.
ARTICLE 111. Stormwater Management Responsibilities. The Developer shall
maintain all current storm water management requirements. Prior to Developer's
acquisition of the property, recorded agreements were in place to provide storm water
management for Anders Plat, located to the north of the proposed multifamily
development the Developer will be constructing. The Developer has submitted an
approved grading and drainage plan that is compliant with the storm water management
requirements for the proposed development and existing Anders Plat developments.
No Occupancy permits will be issued for any buildings until an "as-built" grading and
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drainage plan has been approved by the Department of Pubiic 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.
Notwithstanding anything to the contrary and by way of clarification, the City's Building
Inspection Services Division shall issue occupancy permits upon compliance with the
provisions of this section and upon the completion of each building within the Project
including compliance of all state building codes. The City's Inspection Services Division
shall not require the completion of all buildings within the Project as a condition to the
issuance of an occupancy permit for each building within the Project as each building is
completed and readied for occupancy.
Incorporated by reference within this Agreement is the approved grading and drainage
plan as required by Chapter 14 of the Oshkosh Municipal Code. These plans shall be
adhered to and maintained by the respective lot owner(s) in a manner which is
consistent with the original design, function and capacity of the plan. If the respective
lot owner(s) fail, in the sole, but reasonable 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 written notice to correct the
deficiencies (the "Notice"). The Notice shall, except in case of emergency in which no
Notice needs to be issued, specify the amount of days to resolve the deficiency in
accordance with the City of Oshkosh Municipal Code. Except as limited above, 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 the Property 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.
ARTICLE IV. Covenants of Developer. The Developer represents and agrees as
follows:
(a) Developer covenants and warrants that it is the owner of the Property.
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(b) The undersigned individuals have the authority to sign this Agreement on
behalf of Developer and to bind Developer to the terms and conditions of
this Agreement.
(c) The Developer shall cause the Project to be constructed in a good and
workmanlike manner and substantially in accordance with the Project
Plans and will promptly correct any defects in any construction or
deviations from the Project Plans, which deviations were not previously
approved by the City in writing. Developer shall guaranty such work for a
period of two (2) years as provided in Article VI. B. of this Agreement.
(d) The Developer shall not, without the prior written consent of the City,
approve any change or modification in the Project by change order or
otherwise that would cause the Project to be materially inconsistent with
the Project Plans or this Agreement.
(e) The Developer shall permit the City and the City's construction consultant
or inspector, at all reasonable times, to inspect the Project and all matters
relating to the development thereof. The City assumes no obligation to
the Developer for the sufficiency or adequacy of such inspections, it being
acknowledged that such inspections are made for the sole and separate
benefit of the City. The fact that the City may make inspections shall in no
way relieve the Developer from its duty to independently ascertain that the
construction of the Project is being completed substantially in accordance
with the Project Plans.
(f) The Developer shall have in effect at all times, all permits, approvals and
licenses that may be required by any governmental authority or
nongovernmental entity in connection with the construction of the Project.
(g) Developer shall pay for all work performed and materials furnished for the
Project as and when due.
(h) On or before the Completion Date, the Project shall be completed (subject
to matters of force majeure), and the right-of-way areas shall be open and
ready for public use.
(i) Developer shall conform and comply with, and will cause the Project to be
in conformance and compliance with, all applicable federal, state, local
and other laws, rules, regulations and ordinances. Developer shall
secure all necessary plan approvals and permits prior to beginning
construction activities.
(j) The Developer shall install, and the City expressly consents to Developer
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installation of the following improvements:
Sanitary Sewer and Laterals, Water Main and Laterals, Storm Sewer and
Laterals, Sidewalk, Grading and Graveling, Concrete Paving, Street
Lighting and Paved Pedestrian Trail.
All services and installations shall be according to plans and
specifications, and subject to the approval and acceptance, of the City
Engineer.
(k) Developer shall install public improvements including the asphalt paving,
median construction, and driveway access along Jackson Street
according to the current version of the Wisconsin Department of
Transportation Construction and Materials Manual and the Wisconsin
Department of Transportation Standard Specifications.
(I) Developer shall maintain two lanes of traffic, one lane in each direction, at
all times on Jackson Street. Developer shall maintain counter directional
traffic on existing Soda Creek Road and Jacktar Road at all times.
(m) Contractors, suppliers, employees, agents and others associated with
construction on the Property shall use the driveway access on Jackson
Street only to access the site.
(n) Developer shall cause the General Contractor to obtain a single Right of
Way Permit for all work performed within the City of Oshkosh right of way
as required by Project Plans.
(o) At all times when a contractor is working in the right of way, a city or state
approved traffic control plan must be implemented.
(p) Developer shall use epoxy in all pavement markings, in accordance with
the current version of the Wisconsin Department of Transportation
Construction and Materials Manual and the Wisconsin Department of
Transportation Standard Specifications.
(q) Developer agrees to grant all necessary easements necessary for the
installation and maintenance of public facilities.
(r) Developer shall construct and maintain a ten (10) foot wide paved
pedestrian trail from Jacktar Road to the east property line of the Property,
with the location approved by the Winnebago County Parks Department.
Construction of the trail will be at the Developer's expense.
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(s) Developer shall construct a ten (10) foot wide paved pedestrian trail
connecting to the terminus of the trail on the Property and running east
within the County Park property and connecting to the internal park trail
system as approved by the Winnebago County Parks Department as
shown in Exhibit A. Winnebago County Parks Department will maintain the
trail within the County Park property. Construction of the trail will be at the
Developer's expense.
(t) The Developer, or its designee, at its cost and expense, shall
construct, install, maintain, repair and replace a pedestrian path on the
Property as detailed in the Project Plans. The Developer's maintenance
and repair obligations shall include both day to day maintenance and
repair, including snow and ice removal, and extraordinary maintenance,
repair and replacement of concrete surfaces as necessary.
(u) Developer shall prepare a legal description for the center line of a 20'
construction easement to be granted to the Developer and approved by
Winnebago County for constructing a trail on Winnebago County property
as described in Exhibit C.
(v) Failure of Developer to construct a paved pedestrian trail from Jacktar
Road to the east property line on the Property and into the Winnebago
County Park trail system shall result in the city drawing upon the
Developer's letter of credit or performance bond for construction costs
associated with construction of the paved pedestrian trail.
(w) Term: The provisions of this Article are intended to run with the Property
and to survive any subsequent divestiture of title by Developer or any
successor in title.
ARTICLE V. City Services.
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 the Project.
Pursuant to Section 66.0703 of the Wisconsin Statutes, the City has levied and
Developer has consented to the levying and assessing of the cost of various
improvements for the benefit of the Property.
The attached exhibit, acknowledged by City and Developer as being true and correct, is
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incorporated by reference as if fully stated herein.
EXHIBIT "D" -Waiver of Special Assessment Notices and
Hearing under Section 66.0703, Wisconsin Statutes
It is specifically understood by and between the parties that the amounts set forth in the
attached Exhibit "D" Waiver of Special Assessment Notices and Hearing under Section
66.0703, Wisconsin Statutes are estimates only. 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.
ARTICLE VI. Payment for City Services and Financial Guaranties
A. Pavment for City Services. The Developer shall supply a cash deposit in the
amount of $18,033.60 for survey and inspection fees as shown on attached
Exhibit "D" which shall be drawn upon by the City for payment for the services
provided.
B. Financial Guaranties. Prior to undertaking any work within the right-of-way,
Developer shall file a two (2) 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 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 "D" attached
hereto. Upon verification that such construction has been completed, accepted
by the City and warranty bond or letter of credit filed, the performance bond or
letter of credit shall be extinguished and released.
After written acceptance by the City of the privately constructed improvements,
Developer shall submit a warranty bond or letter of credit in the amount specified
in the attached Exhibit "D" as a guarantee of such improvements for a period of
two (2) years from the date of acceptance. The Developer shall be responsible
for repairs to said privately constructed improvements during this two (2) year
guaranty period. If Developer fails to make any necessary repairs, within thirty
(30) days of receiving written notice from the City, the City may make such
repairs and draw upon this letter of credit or performance bonds for payment in
addition to any remedies available to the City under Article VI herein.
Failure to file an appropriate bond shall entitle the City to stop all construction
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work upon the Project Site and Property 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
compensation for any damages actually incurred and upon judgment shall be
entitled to its costs and fees in pursuit of any action under the terms of this
paragraph.
ARTICLE VII. Remedies for Default. 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 the Property. 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 including, but not limited to,
the restoration of the Project Site to its pre-project configuration 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. The remedies
provided in this Agreement are not exclusive. The City may use any other remedies
available to it.
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ARTICLE VIII. LIABILITY AND INDEMNIFICATION
No Personal Liabilitv. Under no circumstances shall any council member, official,
director, attorney, employee, or agent of a party have any personal liability arising out of
this Agreement, and no party shall seek or claim any such personal liability.
Indemnifications. The Developer covenants and agrees to protect and hold the City of
Oshkosh harmless against all actions, claims, and demands which may result from the
intentional or negligent acts of the Developer, its agents or assigns, its employees, or its
contractors or subcontractors related however remotely to the performance of this Agreement or
be caused or result from any violation of any law or administrative regulation, and shall
indemnify or refund to the City all sums including court costs, attorney fees, and punitive
damages which the City may be obliged or adjudged, by a court of competent jurisdiction, to pay
on any such claims or demands within thirty (30) days of the date of the City's written demand
for indemnification or refund for those actions, claim, and demands caused by or resulting from
intentional or negligent acts as specified in this paragraph.
ARTICLE IX.GENERAL PROVISIONS
Entire Aqreement. This Agreement supersedes all other agreements or other
understandings between City and Developer, whether verbal or written, concerning the
Property, the Project, the Project Site and any other matter related thereto and it shall
inure to the benefit of and shall bind the parties hereto, their respective heirs, executors,
successors or assigns.
Modifications. This Agreement may be amended or modified only by written instrument
duly executed by, and delivered to both of the parties hereto.
Severability of Provisions. In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if the invalid, illegal or unenforceable
provision had never been contained herein.
Time of Essence. Time is of the essence.
Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
Headinqs. Descriptive headings are for convenience only and shall not control or affect
the meaning or construction of any provision of this Agreement.
Assignment. Provisions of this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the parties
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No Joint Partnership. Nothing contained in this Agreement or any other documents
executed pursuant to this Agreement shall be deemed or construed as creating a
partnership or joint venture between the City and the Developer or between the City and
any other person, or cause the City to be responsible in any way for the debts or
obligations of the Developer or any other person or cause the Developer to be
responsible in any way for the debts or obligations of the City or any other person.
Each party represents, warrants and agrees, for itself and its successors and assigns,
not to make any assertion inconsistent with its acknowledgement or with the
acknowledgement and agreement contained in the preceding sentence in the event of
any action, suit or proceeding, at law or in equity, with respect to the transactions which
are the subject of this Agreement and this paragraph may be pleaded and construed as
a complete bar and estoppel against any assertion by or for a party and its successors
and permitted assigns, that is inconsistent with its acknowledgement and agreement
contained in the preceding sentence.
Force Majeure. If any party is delayed or prevented from timely performing any act
required under this Agreement other than the payment of money, by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, labor disputes or shortages,
government restrictions, judicial order, public emergency, or other causes beyond the
reasonable control of the party obligated to perform, the perFormance of such act shall
be excused for the period of such delay and the time for the performance of any such
act shall be extended for a period equivalent to such delay.
Recording of Document. A memorandum of this Agreement may be recorded in the
office of the Register of Deeds of Winnebago County, Wisconsin. This Agreement
inures to the benefit of the City and its successors and assigns.
Construction of Document. This Agreement is the product of negotiation between the
parties hereto and no term, covenant or provision herein or the failure to include a term,
covenant or provision shall be construed against any party hereto solely on the basis
that one party or the other drafted this Agreement or any term, covenant or condition
contained herein.
No Third Party Beneficiaries. This Agreement is intended solely for the benefit of the
Developer and the City, and no third party (other than successors and permitted
assigns) shall have any rights or interest in any provision of this Agreement, or as a
result of any action or inaction of the City in connection therewith.
Governing Law. This Agreement shall be governed by, and construed in accordance
with the laws of the State of Wisconsin.
Litiqation. In connection with any litigation arising out of this Agreement, the prevailing
party shall be entitled to recover all costs incurred, including reasonable attorneys' fees.
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Waiver of Trial by Jury_ EACH PARTY TO THIS AGREEMENT HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM,
WHETHER CONTRACT OR TORT, AT LAW OR EQUITY, ARISING OUT OF OR IN
ANY WAY RELATED TO THIS AGREEMENT.
Interest Rate on past due amounts. All amounts not paid when due hereunder shall
bear interest at the rate of twelve percent (12%).
Other Approvals. Nothing contained in this Agreement is intended to or has the effect of
releasing the Developer from compliance with all applicable laws, rules, regulations and
ordinances in addition to compliance with all the terms, conditions and covenants
contained in this Agreement. In addition to any approvals required under this
Agreement, the Developer shall be required to obtain all approvals, consents, and
licenses as may be required by any governmental or non-governmental authority in
connection with the Project, including, without limitation, all building permits, Project
Plan approvals and zoning approvals. The Developer's compliance with the terms of
this Agreement shall not relieve the Developer from complying with all applicable
federal, state and local laws, rules, regulations and ordinances in connection with the
Project and to the extent any governmental or non-governmental entity imposes
different or more restrictive conditions on the Developer or the Project, compliance by
the Developer with the terms of this Agreement shall not relieve the Developer from
complying with such different or more restrictive conditions. Likewise, any less
restrictive conditions imposed on the Developer or the Project by any governmental or
non-governmental authority shall not relieve the Developer or the Project from
complying with all of the terms and conditions of this Agreement.
(Signature Pages to follow)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CITY OF OSHKOSH
Mark A. Rohloff, City Manager
Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this day of , 2014, the above
named Mark A. Rohloff, City Manager for the City of Oshkosh, and Pamela R. Ubrig,
City Clerk for the City of Oshkosh, to me known to be such persons who executed the
foregoing instrument and acknowledged the same, for the purpose herein contained.
Notary Public, Winnebago County, Wisconsin
My Commission expires:
PREMIER SODA CREEK LLC
A Wisconsin Limited Liability Company
By:
CALVIN AKIN, Managing Member
STATE OF WISCONSIN )
) ss.
WAUKESHA COUNTY )
Personally came before me this day of , 2014, the above
named Calvin Akin, Managing Member of Premier Soda Creek LLC, a Wisconsin
Limited Liability Company, to me known to be such person who executed the foregoing
instrument and acknowledged the same, for the purpose herein contained.
Notary Public, Waukesha County, Wisconsin
My Commission expires:
13
This Agreement was drafted by:
Attorney Lynn Lorenson
Oshkosh, Wisconsin 54903-1130
14
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Exhibit B
Insert Retracement CSM once all parcels are under same ownership and combined. John Maas will
provide document.
Exhibit C
Buildin�Specifications Required for Ancillary Walkin� Path Connectin� Premier Soda Creek
Estates Multi-FamilV Housin� Prolect to Shared Use Path within the Winneba�o County
Communitv Park
Description:
The Premier path shall essentially match the County's shared use path both in design and
construction.
Placement of the point of ingress/egress as it relates to positioning along the border of the park
shall be at a point within 50 feet of the north east corner of the Premier property. The course
on which the path shall follow from its place of origin shall be laid-out on a straight line across
the parkland grass area towards a predetermined spot on the shared use path, as selected and
marked by the County. Once the path is within twenty feet of the predetermined spot the
course of the path shall precipitously arc towards to the east. The layout of the are shall be
such that it allows the Premier path to connect to the shared use path at a 90 degree angle.
Specification:
• Design features shall include a 10 feet wide asphalt path with 12 inch wide gravel shoulders.
• Common excavation shall be set at a minimum 12 inches however Premier shall perform
additional excavation as required in order to establish a solid sub base throughout. It will
not be permissible for stone base materials to be laid atop of black dirt or soft sub base.
• With the exception of all stripped turf materials and 4+ inch rocks which are to be removed
from the site, Premier shall maintain a reserve of black dirt deemed sufficient for backfilling
purposes.
• Premier shall be responsible for relocation, forming and rough grading of all remaining soils
related to the path project. Said activities will be confined to one or more sites within the
Community Park and shall be performed according to the County's specification.
• Fill w/dense grade base to 12 inch depth and compact.
• Install asphalt HMAType E-1.0, 2 %z inch depth
� Backfill over gravel shoulders up to paved edges using soil reserve.
• Seed/fertilize/mulch common green space areas throughout construction zone.
In constructing the path, Premier shall be accountable for ensuring that its contours follow the
pitch of the surrounding terrain such that the surface remains flat and even with the adjacent
ground. Premier shall be responsible for remediation of any subsequent blockage of ground
surface water resulting in ponding around the Premier path. Premier shall be responsible for
addressing all state and local code requirements for permitting and erosion control.
Premier Soda Creek Estates LLC shall recognize the County as a named co-insured and shall
assume responsibility to pay liabilities arising out of any and all activities associated with
Winnebago County's granting of the required temporary construction easement.
1 RESOLUTION: Approve the Request of Premier Soda Creek Estates LLC for
2 Winnebago County to Grant a Temporary Construction
3 Easement to Facilitate the Building of a Walking Path from the
4 Premier Soda Creek Estates' Multi-Family Housing Project into
5 the Community Park
6
7
8 TO THE WINNEBAGO COUNTY BOARD OF SUPERVISORS:
9 WHEREAS,Winnebago County is presently involved in a sizeable infrastructure
10 improvement project of the Winnebago County Community Park that is intended to
11 enhance the functionality of the park road system and establish a 21h mile shared use path
12 network; and
13 WHEREAS, it is anticipated that the presence of a 10-foot wide shared use path
14 will become a major recreational asset for the community that will draw interest from a
15 broad array of citizens; and
16 WHEREAS, Premier Soda Creek Estates LLC is a private interest that is in the
17 planning stages of building a large apartment complex on property located just outside
18 the northwest corner of the Community Park and south of Jacktar Road in Oshkosh; and
19 WHEREAS, it has been recognized by Premier Soda Creek Estates LLC that
20 with the presence of the shared use path in close proximity to the apartment complex,
21 there is a tremendous opportunity to make available to its residents a secure and
22 dependable means for persons to access the abundant leisure service opportunities
23 accessible in the park via the shared use path network; and,
24 WHEREAS,Premier Soda Creek Estates LLC wishes to proceed with
25 construction of a 10-foot wide asphalt path running from the northeast corner of the Soda
26 Creek Estates Multi-Family Housing Project approximately 223 feet southeast across
27 parkland property and link up with the Community Park shared use path; and,
28 WHEREAS,in order to facilitate development of the aforementioned project,
29 Premier Soda Creek Estates LLC requests that Winnebago County consider granting a
30 20-foot wide by 223-foot long construction easement that would allow Premier Soda
31 Creek Estates LLC the necessary access in order to build the aforementioned 10-foot
32 wide paved path from the Premier Soda Creek Estates' Multi-Family Housing Project to
33 the Community Park shared use path; and,
34 WHEREAS, to ensure that the correct construction methods are implemented
35 and that the Premier Soda Creek Estates LLC path follows a set route, the City of
36 Oshkosh has opted to demonstrate its support of the project by allowing a Winnebago
37 County-generated document containing a detailed list of specifications and expectations
38 for constructing the path, to be attached to and made a part of the City of Oshkosh—
39 Premier Soda Creek Estates LLC Developers Agreement; and,
40 WHEREAS,Premier Soda Creek Estates LLC shall recognize Winnebago
41 County as a named co-insured and shall assume responsibility to pay liabilities that arise
42 out of any and all activities associated with Winnebago County's granting of the required
43 temporary construction easement; and,
44 WHEREAS,your undersigned Committee believes that it would be in the best
45 interests of Winnebago County to proceed in approving the aforementioned temporary
46 construction easement in order to accommodate the Premier Soda Creek Estates' LLC
47 path building project within the Community Park.
48
49 NOW, THEREFORE,BE IT RESOLVED,by the Winnebago County Board of
50 Supervisors that it hereby autharizes the County Executive to proceed in granting a
51 temporary 20-foot wide X 223 foot long construction easement to Premier Soda Creek
52 Estates, LLC in consideration of its desire to install a safe and dependable path for
53 residents of the Soda Creek Estates Multi-Family Housing Project traveling to and from
54 the Community Park shared use path.
55
56 BE IT FURTHER RESOLVED,by the Winnebago County Board of
57 Supervisors that it hereby authorizes that official activation of the construction easement
58 shall commence on Apri128`�' of 2015 and continue until the conclusion of the
59 aforementioned path installation or on September 15`h of 2015, whichever comes first.
60
61 BE IT FURTHER RESOLVED by the Winnebago County Board of
62 Supervisars that it hereby authorizes that for the duration of the construction easement
63 Premier Soda Creek Estates, LLC shall be granted the right of ingress and egress to the
64 Community Park via the Soda Creek Estates Multi-Family Housing Project only and that
65 such ingress and egress shall be confined to weekdays between the hours of 7:30 a.m. and
66 4:00 p.m.
67
68 BE IT FURTHER RESOLVED by the Winnebago County Board of
69 Supervisors that it hereby requires that Premier Soda Creek Estates LLC and its
70 subcontractors be obligated to strictly adhere to all provisions of the construction
71 requirements as delineated within the Specifications Rec�uired far Walkin�Path
72 Connectin�Premier Soda Creek Estates Multi-Family Housing Project to Shared Use
73 Path within the Community Park document attached to and made a part of the City of
74 Oshkosh—Premier Soda Creek Estates LLC, Development Agreement.
75
76 BE IT FURTHER RESOLVED,by the Winnebago County Board of
77 Supervisors that it hereby authorizes that the aforementioned construction easement shall
78 consist of the following tract of land in the City of Oshkosh, Winnebago County,
79 described as:
80 All that land of the owner in the N1/2 of Section 36, T19N, R16E, 15th Ward, City of
81 Oshkosh,Winnebago County,Wisconsin, more fully described as follows:
82
83 Commencing at the Northeast corner of Lot 1 of Certified Survey Map No. 5854,
84 recorded on February 17, 2006 in Volume 1 of Certified Survey Maps, Page 5854, as
85 Document No. 1388402, recorded in the Register of Deeds Office, in and for,
86 Winnebago County,Wisconsin; thence
87 S 00° 11' 13" E (recorded as S 00° 17'25"W), 25.00 feet, to the point of beginning
88 (Winnebago County Coordinate 496,341.86 N, 792,953.11 E)and being the centerline
89 of the 20 foot wide easement being 10 feet each way of the centerline bearing 3S 79°
90 22' 53" E, and being 223.43 feet in length (Winnebago County Coordinate 496,300.69
91 N, 793,172.72 E).
92
93 Said temporary construction easement contains 22,343 square feet, more or less.
94
95 Fiscal Note: The installation of this 10-foot wide by 223-foot long paved path in the
96 northwest section of the Community Park will not significantly affect either
97 the type or quantity of maintenance that the Parks Department will
98 otherwise be dedicating in maintaining the much larger 2'/z mile main
99 section of the shared use path. The Parks Department anticipates that an
100 extra$200-$300 in labor and equipment costs will be required to maintain
101 the facility. The main focus of maintaining the path will center on sweeping
102 activities.
103 Respectfully submitted by:
104 PARKS AND RECREATION
105 COMMITTEE
106 Committee Vote: 4-0
107 Vote Required for Passage: Maiority of Those Present
108
109 Approved by the Winnebago County Executive this day of
110 , 2015.
111
112
113
114 Mark L Harris
115 Winnebago County Executive
116
EXHIBIT D
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 private construction and public surveying and inspection for Project, as defined in
Developer's Agreement.
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 there is benefit to my property from the
construction of such improvements and the assessments set forth herein have been estimated on a
reasonable basis:
Description of Premises
Property as defined in Developer's Agreement
Lot 1 CSM XXXX
1. Sanitary Sewer&Laterals (Private Construction)
Estimated Construction Cost $10,000.00 Private
6% Survey and Inspection $600.00 Deposit
2. Water Main with Laterals (Private Construction)
Estimated Construction Cost $25,000.00 Private
6% Survey and Inspection $1,500.00 Deposit
3. Storm Sewer w/Laterals (Private Construction)
Storm Sewer in street $35,000.00 Private
Storm sewer to basin $8,500.00 Private
Outlet Structure and Outlet Piping $12,000.00 Private
Ditchin�Work $8,700.00 Private
Estimated Construction Cost $64,200.00 Private
6% Survey and Inspection $3,852.00 Deposit
4. Asphalt Path (Private Construction)
On Property $11,700.00 Private
In Winnebago Count,y Park $13,500.00 Private
Estimated Construction Cost $25,200.00 Private
6% Survey and Inspection $1,512.00 Deposit
H:Ucellyn�Projects\SodaCreek.4pls�FinaID.4�Exhibi[DSodaCreek Wa1VCP.C�OCX Page 1 of 2
EXHIBIT D
5. Concrete Sidewalk (Private Construction)
Estimated Construction Cost $10,000.00 Private
6% Survey and Inspection $600.00 Deposit
6. Concrete Street Paving (Private Construction)—Paving in 2015
Estimated Construction Cost $104,160.00 Private
6% Survey and Inspection $6,249.60 Deposit
7. On-Property Stormwater Management Basin including Storm sewer and Ditching to basin
(Private Construction)
Estimated Construction Cost $87,500.00 Private
No City Inspection or Survey. $0.00 Deposit
Requires Private Survey and Inspection
8. Jackson Street Median Construction (Private Construction)
Estimated Construction Cost $62,000.00 Private
6% Survey and Inspection $3,720.00 Deposit
9. Street Lighting (WPS Construction)
Estimated Construction Cost $6,000.00 Deposit
10. Pavement Marking and Signage (Private Construction)
Estimated Construction Cost $1,000.00 Deposit
Cash Deposit for Public Services = $18,033.60
2—Year Irrevocable Letter of Credit for Private Construction= $395,060.00
2—Year Irrevocable Letter of Credit after Acceptance of Private Construction= $80,812.00
Signature of Owner:
Signature of Authorized Representative Date
CALVIN AKIN,Managing Member
H:Uccllyn�Projects\Soda Creek Apts�Final DA�Exhibit D Soda Creek W21VeT'.dOCX Page 2 of 2