HomeMy WebLinkAbout14. 16-375JULY 26, 2016
16 -375 RESOLUTION
(CARRIED 6 -0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE DEVELOPER AGREEMENT / SUNRISE ESTATES
SUBDIVISION; SOUTH 3400 BLOCK OF WEST 20TH AVENUE
INITIATED BY: DEPARTMENT OF PUBLIC WORKS
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 an appropriate Developer's
Agreement for:
Sunrise Estates
Lots 1 -21 and Outlot 1
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
July , 2016, 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, Inc. ( "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:
Sunrise Estates
Lots 1 -21 and Outlot 1
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 and
Laterals, Sidewalk, Grading, Graveling and Restoration, Concrete Paving
and installation of lighting conduit system, wiring and control cabinet.
Page 1 of 6
Construction by the City of:
Remainder of Street Lighting including but not limited to: light bases, wiring,
installation of developer supplied light poles and light fixtures, installation of
terrace trees and sidewalk.
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 and Laterals,
Sidewalk, Grading, Graveling, Restoration, Detention Basin Grading and
Restoration, Concrete Paving, Terrace Trees, acquisition of Street Lighting
equipment, installation of lighting conduit system with wiring, lighting control
cabinet, and plat monuments.
Developer shall perform survey, grading, restoration and inspection for all areas
outside of the right of way, including all lot corner elevations.
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 and monuments. 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
Page 2 of 6
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.
The Developer agrees to enter into a Long Term Maintenance Agreement with the
City prior to final approval of the Plat. The agreement will establish who shall be
responsible for the long term maintenance of Outlot 1, including but not limited to
detention basin maintenance, sidewalk maintenance and future special assessments.
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 payment prior to approval for the services to be
provided by the City. The cost is included in Exhibit "A ". The Developer shall pay
all invoices, in cash, within 30 days of invoice from the City for additional services:
Survey and Inspection Fees for:
Sanitary Sewer and Laterals, Water Main and Laterals, Storm Sewer and Laterals,
Sidewalk, Grading and Graveling, Concrete Paving and Street Lighting
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
Page 3 of 6
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 by July 31St of the third
year from the date of this agreement or the Developer shall be considered in default of
this agreement and subject to the provisions of paragraph 11 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 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 letter of credit or 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
Page 4 of 6
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.
14. Developer shall not be required to place monuments (property /right of way irons)
prior to approval of final plat per Chapter 236 of State Statutes. Placement of monuments
may occur after the site mass grading has been completed. No lot may be sold until all
monuments, as called for on the plat, are installed. Developer shall certify all monuments
are in place as part of the As -Built Plan submittal required in paragraph 4.
Page 5 of 6
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: '3Q 2016.
In the Presence of:
Cypress,.H es, Inc
By: ichae& nk
President
1230 W College Ave
Appleton, WI 54914
CITY OF OSHKOSH
Mark A. Rohloff, City Manager
Approved as to Form and Execution:
Lynn A. Lorenson, City Attorney
STATE OF WISCONSIN
SS.
WINNEBAGO COUNTY
P •
Personally came before me this day of
2016, 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.
Notary Public, Winnebago Co., WI
My Commission expires /is:
This document drafted by:
Attorney Lynn A. Lorenson, City Attorney
Oshkosh, WI 54902 -1130
Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN )
) SS.
WINNEBAGO COUNTY )
Personally came before me this 3,0�� day
of , 2016, the above -named
Michael F. Blank, to me known to be the
person(s) who executed the foregoing
instrument and to me known to be such
officer of said corporation, and
acknowledged that he executed the
foregoing instrument as such officer as the
deed said torpor tion, b its authority.
Notary Public, Winnebago County, WI
My Commission expires /is: / ^/ 6- / 7
GO FtY S G
N��' AVBLIC .
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Page 6of6
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 or bond 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/bond 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, shall 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 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
Page 7of6
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 concrete sidewalk and terrace tree
installation.
For private construction and public inspection and survey for sanitary sewer, storm sewer, water
main, laterals, grading & graveling, and concrete street pavement.
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
Sunrise Estates
Lots 1 -21 and Outlot 1
Construction of Morning Star Lane and Daybreak Lane
Sanitary Sewer & Laterals (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
2. Water Main with Laterals (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
3. Storm Sewer w /Laterals (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
4. Grading, Graveling and Restoration (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
(:\Engineering \Waiver of Special Assessment \Waiver of Special Assess -by Subdivision \Sunrise Estates \Sunrise Estates Waiver.doc
$66,370.00 Private
$3,982.20 Payment
$106,889.00 Private
$6,413.34 Payment
$126,362.85 Private
$7,581.77 Payment
$82,125.41 Private
$4,927.52 Payment
Sunrise Estates
Page 2 of 4
5. Detention Basin Grading and Restoration (Private Construction, Private Survey /Inspection)
Estimated Construction Cost $20,416.03 Private
6% Survey and Inspection $0.00 Payment
6. Sidewalk (Public Construction) Assess
Assessment Rate = $25.00 per front foot of each lot
Includes 6% for Inspection and Surveying
Sunrise Estates
Lot #
Sidewalk Footage
Sidewalk Cost Estimate
1
263.57
$6,589.25
2
100.92
$2,523.00
3
101.17
$2,529.25
4
100.00
$2,500.00
5
100.00
$2,500.00
6
100.00
$2,500.00
7
100.00
$2,500.00
8
100.00
$2,500.00
9
100.00
$2,500.00
10
109.20
$2,730.00
11
50.29
$1,257.25
12
43.96
$1,099.00
13
43.95
$1,098.75
14
50.30
$1,257.50
15
109.20
$2,730.00
16
100.00
$2,500.00
17
100.00
$2,500.00
18
288.41
$7,210.25
19
278.40
$6,960.00
20
95.00
$2,375.00
21
95.44
$2,386.00
7. Concrete Street Paving (Private) — Paving completed by July 31, 2019.
Native backfill to be used in utility trenches. No paving until trenches have
settled for three winter seasons.
1,270 Center Line Feet of Roadway at $220/lf = $279,400
Seven (7) Handicapped Ramps at $600.00 each = $4,200.00
Sidewalk installation for Outlot 1 - 435.52 ft at $25/ft= $10,888.00
Estimated Construction Cost $294,488.00 Private
6% Survey and Inspection $17,669.28 Payment
I:\Engineering \Waiver of Special Assessment \Waiver of Special Assess - by Subdivision \Sunrise Estates \Sunrise Estates Waiver.doc
Sunrise Estates
Page 3 of 4
8. Street Lighting
Lighting fixture /equipment acquisition $52,335.00
Estimated Construction Cost (Public) $3,600.00
Includes installing bases, poles and fixtures
6% Survey and Inspection $216.00
9. Terrace Trees (Public Construction) Assess
Assessment Rate = $300 per tree
Outlot 1- 6 trees at $300 each= $1,800.
Each lot assessed $85.71 for Outlot 1 trees
Sunrise Estates
10. Final Plat Monuments (Private)
Estimated Construction Cost
I:\Engineering \Waiver of Special Assessment \Waiver of Special Assess - by Subdivision \Sunrise Estates \Sunrise Estates Waiver.doc
Private
Payment
Payment
$2,000.00 Private
Estimated number
Tree Cost
Lot #
of terrace trees
Estimate
1
1.00
$385.71
2
2.00
$685.71
3
2.00
$685.71
4
2.00
$685.71
5
2.00
$685.71
6
2.00
$685.71
7
2.00
$685.71
8
2.00
$685.71
9
2.00
$685.71
10
2.00
$685.71
11
0.00
$85.71
12
0.00
$85.71
13
0.00
$85.71
14
0.00
$85.71
15
2.00
$685.71
16
2.00
$685.71
17
2.00
$685.71
18
3.00
$985.71
19
4.00
$1,285.71
20
2.00
$685.71
21
2.00
$685.71
10. Final Plat Monuments (Private)
Estimated Construction Cost
I:\Engineering \Waiver of Special Assessment \Waiver of Special Assess - by Subdivision \Sunrise Estates \Sunrise Estates Waiver.doc
Private
Payment
Payment
$2,000.00 Private
Sunrise Estates
Page 4 of 4
Dev Agree Waiver Section
1
2
3
4
5
6
7
8
9
10
Totals
Summary of Cost Calculations
4 — Year Irrevocable Letter of Credit or Bond for Private Construction = $750,986.29
Cash Payment for Public Engineering, Inspection and Construction = $44,390.12
2 — Year Irrevocable Letter of Credit after Acceptance of Private Construction = $150,197.26
Signature o O ner:
Signatu e ed Representative
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Engr. and
Private Cost
Inspection (Public) Public Construction
$66,370.00
$3,982.20
$106,889.00
$6,413.34
$126,362.85
$7,581.77
$82,125.41
$4,927.52
$20,416.03
$0.00
$0.00
$0.00
$294,488.00
$17,669.28
$52,335.00
$216.00 $3,600.00
$0.00
$0.00
$2,000.00
$0.00
$750,986.29
$40,790.12 $3,600.00
4 — Year Irrevocable Letter of Credit or Bond for Private Construction = $750,986.29
Cash Payment for Public Engineering, Inspection and Construction = $44,390.12
2 — Year Irrevocable Letter of Credit after Acceptance of Private Construction = $150,197.26
Signature o O ner:
Signatu e ed Representative
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