HomeMy WebLinkAbout27. 17-295 JUNE 13, 2017 17-295 RESOLUTION
(CARRIED 7-0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE RIGHT-OF-WAY DEVELOPMENT AGREEMENT &
MAINTENANCE AGREEMENT AND WAIVER OF SPECIAL
ASSESSMENT PROCEEDINGS FOR THE GRANARY
REDEVELOPMENT PROJECT FOR CONSTRUCTION WITHIN
RIGHTS-OF-WAY ON WEST 5TH AVENUE, WEST 6TH AVENUE &
NEBRASKA 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 Right-of-Way
Development Agreement and Maintenance Agreement with 50 W 61h Street LLC,with the
following conditions, for sidewalk replacement and reconfiguration as well as associated
handicapped ramps; on-street angle parking with curb and gutter along West 51h Avenue,
including signage, lighting and striping; closing certain driveway access from West 61h
Avenue; adding curbing, islands, bump-outs and landscaping at the
connection/intersection between West 61h Avenue and West 51h Avenue, and adding
driveway aprons to the new parking lot to be constructed, in association with the
rehabilitation of the historic H.P. Schmidt Mill building, also known as the 'Granary
Building", located at 50 West 61h Avenue into office and restaurant space, 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) The Developer grants and the City accepts a parking easement to allow the use of
a part of the Developer's property adjacent to the south line of West 51h Avenue
right-of-way to be used as public parking.
JUNE 13, 2017 17-295 RESOLUTION
CONTD
3) The City grants and the Developer accepts necessary encroachments from the City
for elements of the project where features associated with private development
will be located within the public right-of-way, pursuant to the terms required by
the City. Developer shall work with the Public Works Department to determine
the exact location(s) of the necessary encroachments.
4) Waiver of Special Assessment must be signed by the owner.
5) The following financial guarantees must be submitted to, and approved by, the
City prior to work commencing:
a) Cash Deposit for Public Services $7,527.00
b) Two year performance bond or letter of credit $121,950.00
6) The Developer must complete all improvements by October 1, 2017.
BE IT FURTHER RESOLVED by the Common Council of the City of Oshkosh that
the Waiver of Special Assessment Notice 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.
TO: Honorable Mayor and Members of the Common Council
FROM: Steven M. Gohde, Assistant Director of Public Works �!T
DATE: June 8, 2017
RE: Approve Right -Of -Way Development Agreement & Maintenance Agreement and
Waiver of Special Assessment Proceedings for the Granary Redevelopment Project
for Construction within Rights -Of -Way on West 5th Avenue, West 61h Avenue &
Nebraska Street
BACKGROUND
The City Council approved the former Granary redevelopment project as a Planned
Development at the May 23, 2017 meeting with the condition that multiple right-of-way
improvements are implemented in order for the development to be approved. Improvements
to West 51h Avenue, West 6th Avenue, pedestrian access, lighting, signage, and landscaping will
be required per the approved Planned Development.
The Development Agreement provides for a Letter of Credit for the developer's cost for the
improvements and a Waiver of Special Assessment. Both of these instruments are financial
guarantees to insure the developer, not the City or other adjoining property owners, will pay
for the improvements in the right-of-way.
ANALYSIS
The proposed redevelopment for the existing structure will require multiple improvements.
The modifications are as follows:
• Mill and overlay West 5th Avenue with angled parking.
• Install curbing improvements and pedestrian access within the right-of-way.
• Installation of other right-of-way and public improvements as specified in the
Development Agreement and site plans.
I:\Engineering\ 2017 CONTRACTS\Granary\ Project_Information \Correspondence\ Memo\ Development Page 1 Of 2
Agreement & Waiver of Special Assessments Memo 6-8-17.docx
• The City will improve West 51h Avenue to the east of the former Granary redevelopment
property and will follow the City's assessment policy, if necessary.
The developer for the former Granary redevelopment, 50 W 6th Street LLC, will provide the
financial guarantees, as required in the Development Agreement. These guarantees must be
submitted before work can commence. The estimated cost of the public improvements is
$121,950. The modifications will take place when the former Granary building is under
renovation. Construction will start in June 2017 and be completed in October 2017.
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 a Cash Deposit
for Public Services 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
I recommend the City Council approves the Development Agreement and Waiver of Special
Assessment as proposed.
Approved:
Mark A. Rohloff
City Manager
SMG/tlt
I:\Engineering\ 2017 CONTRACTS\Granary\ Project_ Information\Correspondence\Memo\Development Page 2 Of 2
Agreement & Waiver of Special Assessments Memo 6-8-17.docx
RIGHT-OF-WAY DEVELOPMENT AGREEMENT
AND MAINTENANCE AGREEMENT
(Granary Rehabilitation Project)
This Development Agreement and Maintenance Agreement ("Agreement") is made and
entered into this day of , 2017, by and between the City of Oshkosh, a
Wisconsin Municipal Corporation with principal offices at 215 Church Ave., Oshkosh, WI 54903-
1130, (City) and 50 West 6t'' Street, LLC, a Wisconsin Limited Liability Company with principal
offices at 230 Ohio Street, Suite 200, Oshkosh, WI 54902 ("Developer"):
A. The Developer will rehabilitate the historic H.P. Schmidt Mill, also known as the "Granary
Building," located at 50 West 6a' Avenue in the City of Oshkosh, Wisconsin, into office and
restaurant space. This building rehabilitation will be governed by a separate Development
Agreement and will also include the construction of a new surface parking lot and the
rehabilitation of an existing parking lot to support the future uses of the Granary Building.
Most of the redevelopment work will occur in Tax Increment District No. 32, although some
of the redevelopment work will be outside the TIF District Boundaries. The Overall Property
to be developed through the separate Development Agreement is more particularly described
as follows:
Property within TID Number 32:
All of Lot 1 of Certified Survey Map Number 1252 as recorded in Volume 1,
Page 1252, Document Number 611506, Winnebago County Register of Deeds,
all of Lots 9 and 10 in Block 5 in the Plat of the Original Third Ward, Parts of
W. 5TH Avenue, W. 6TH Avenue, and Nebraska Street, all located in the
fractional Southwest I/4 of the Southwest 1/4 of Section 24, Township 18 North,
Range 16 East, City of Oshkosh, Winnebago County, Wisconsin, bounded and
described as follows:
Commencing from the Southwest Corner of Section 24, Township 18 North,
Range 16 East; thence N00°38'33"W, 689.77 feet along the West line of said
Section 24 to a Point on the extended South line of W. 6' Avenue; thence
S89°42'25"E, 433.02 feet along the extended South line and South line of said
W. 6TH Avenue to the Northeast corner of Lot 9 of Block 5 of the Plat of the
Original Third Ward and the Point of Beginning: thence N0099'06"W, 60.00
feet along the extended West line of said Lot 9 to a Point on the North line of
W. 6TH Avenue; thence S89°42'25"E, 100.10 feet along said North line of
W. 6TH Avenue to the Northeast corner of W. 6TH Avenue and Nebraska Street;
thence N00°19'05"W, 150.87 feet along the West line of said Nebraska Street
to a Point on the South line of vacated Nebraska Street; thence N89°40'56"E,
June 8, 2017
:_,_ s.
22.00 feet along the North line of said Nebraska Street; thence S89°38'29"E,
16.00 feet to the Northeast corner of said Nebraska Street and W. 5TH Avenue;
thence S73°53'45"E, 150.29 feet along the North line of said W. 5TH Avenue
to a Point on the extended West line of Lot 1 of Certified Survey Map Number
1252; thence S00°01'3811W, 170.13 feet along the extended West line and
West line of said Lot 1 to a Point on the South line of W. 6TH Avenue; thence
N89042'25"W, 121.14 feet along the South line of said W. 6TH Avenue to the
Southeast corner of W. 6TH Avenue and Nebraska Street; thence S00°19'05"E,
90.00 feet along the East line of said Nebraska Street to a Point on the extended
South line of Lot 10 of Block 5 of the Plat of the Original Third Ward; thence
N89042'25"W, 160.00 feet along the said extended South line and South lines
of Lots 10 and 9 of Block 5 of said Plat of the Original Third Ward to the
Southwest corner of said Lot 9; thence N00°19'05"W, 90.00 feet along the West
line of said Lot 9 to the Point of Beginning.
Said area contains 55,825 square feet or 1.282 acres, more or less.
Tax Parcel Numbers: 90300100000 and 90300190000
Property Not Within TID Number 32:
All of Lot 3 of Certified Survey Map Number 1252 as recorded in Volume 1,
Page 1252, Document Number 611506, Winnebago County Register of Deeds,
on May 25, 1984, located in the fractional Southwest 1/ of the Southwest 1/ of
Section 24, Township 18 North, Range 16 East, City of Oshkosh, Winnebago
County, Wisconsin.
Tax Parcel Number: 90300110000
B. The Developer has requested certain improvements within the public right-of-way as part of
its rehabilitation project involving the Granary Building and nearby surface parking lots. The
public improvements Project to be undertaken will occur within the rights-of-way for West
6'h Avenue, West 5h Avenue, and Nebraska Street. This Project includes: sidewalk
replacement and reconfiguration as well as associated handicapped ramps; on -street, angle
parking with curb and gutter will be installed along West 5' Avenue; closing certain
driveway access from West 6h Avenue; will add curbing, islands, bump -outs, and
landscaping at the connection/intersection between West 6ffi Avenue and West 5`s Avenue,
and, adding driveway aprons to the newly constructed parking lot.
C. Common Council Resolution 17-272 was passed on May 23, 2017, approved the specific
implementation of the Developer's rehabilitation project through the previously approved
2
June 8, 2017
Planned Development. This Resolution was approved with conditions. In addition to certain
variances, base standard modifications of the zoning code, and design standards, the
Developer is required to enter into certain City agreements for easements and encroachments
in or related to the public right-of-way.
D. Common Council Resolution 17-272 required, among other conditions, that City Officials
and the Developer enter into this Development Agreement and Maintenance Agreement be
entered into. In order to comply with the conditions of the Common Council, the following
are agreed to:
a. The Developer shall install at its sole expense all elements of the Project as defined
in this Agreement.
b. As part of its installation of the Project, the Developer shall submit to the City a
waiver of special assessment notices and hearing pursuant to Section 66.0703 of the
Wisconsin Statutes for inspection services pertaining to the Developer's installation
of the public improvements described in this Development.
c. By Resolutions 17-272 on May 23, 2017, the Common Council of the City of
Oshkosh authorized and directed the proper City officials to enter into this
Development Agreement to provide for installation by the Developer of all public
right-of-way and other related improvements as specified in plans approved by the
City Planning Commission.
d. Developer shall construct or install all public right-of-way and other related
improvements as specified in this Agreement in accordance with the plans approved
by the City and pay the full cost of these improvements.
NOW THEREFORE, in consideration of the foregoing recitals that are incorporated 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:
1. Authority. This Agreement is made, in part, pursuant to Section 66.0703 of the Wisconsin
Statutes providing for levying and assessing the cost of various improvements to the property
herein described.
2. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
a. Completion Date: October 1, 2017 or such date as the City Engineer certifies that all
improvements within the public right-of-way pertaining to this Project have been
completed and accepted by the City, whichever is earlier.
b. Project: The Developer's construction and payment of public right-of-way
improvements pursuant to the plans submitted to and approved by the City, including
3
June 8, 2017
sidewalk replacement and reconfiguration as well as associated handicapped ramps;
on -street, angle parking with curb and gutter will be installed along West 5' Avenue,
including signage, lighting and striping; closing certain driveway access from West
6' Avenue; will adding curbing, islands, bump -outs, and landscaping at the
connection/intersection between West 6`i' Avenue and West 5t' Avenue, and, adding
driveway aprons to the newly constructed parking lot. All elements of the Project
shall conform to all plans submitted to and approved by the City, and including
compliance with City of Oshkosh Standards and Specifications and as shown on
attached Exhibit A.
c. Project Plans: Final detailed plans and specifications for the Project as approved and
on file in the City of Oshkosh Department of Public Works.
d. Project Site: The right-of-way adjacent to the Granary Building rehabilitation
project, as well as the two associated surface parking lots, generally located within
the public rights-of-way of West 6t' Avenue, West 5' Avenue, and Nebraska Street at
or near the address of 50 West 6' Avenue, all as shown on attached Exhibit B.
e. Property: The privately -owned parcels of land near the intersections of West 6,'
Avenue, West 5`h Avenue, and Nebraska Street as described in this Agreement that
benefit from the improvements within the adjoining public rights-of-way.
3. Project Overview. The Developer will construct, at its sole cost, public right-of-way
improvements that are required by and for the benefit of the Developer's Granary
Rehabilitation Project occurring on adjacent private property and will be in compliance with
the plans submitted to and approved by the City.
4. Covenants of Developer. The Developer represents and agrees as follows:
a. Developer covenants and warrants that it owns the Granary Building Property and the
East Parking Property, and has exercised its offer to purchase the Southwest Parking
Property from the Redevelopment Authority. The Developer will be the owner of all
the parcels comprising all parts of the overall Granary Rehabilitation project prior to
beginning construction. This Agreement shall not be effective until the Developer
acquires all private property parts of the overall project.
b. The undersigned individual has 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.
0
June 8, 2017
Developer shall without limitation guaranty and warranty the Project work for a
period of two (2) years after the City Engineer has certified the Project as complete.
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.
C. The Developer shall permit the City and the City's engineer, inspector, or
construction consultant to inspect the Project and all matters relating to the Project
and the overall Granary Rehabilitation at all reasonable times. 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 is provided the opportunity to 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, or cause others to 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 be solely responsible and liable for all costs associated with the
Project, with the Developer's full payment for all labor and materials related to the
Project to be a donation to the City. Despite the Developer's identification of these
Project Costs in the separate Development Agreement for the overall Granary
Rehabilitation project, the donation of the cost of the Project is separate and not
included in any calculations of any development incentives or other payments from
any TIF plan.
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, or cause others to secure,
all necessary plan approvals and permits prior to beginning construction activities.
The Developer, or its designee, at its cost and expense, shall construct, install,
maintain, repair and replace the improvements along West 6' Avenue, West 5I'
Avenue, and Nebraska Street as required by City Code. The improvements that the
Developer is responsible includes the sidewalk replacement and reconfiguration as
well as associated handicapped ramps; on -street, angle parking with curb and gutter
will be installed along West 5t' Avenue including signage, lighting and striping;
closing certain driveway access from West 6' Avenue; will adding curbing, islands,
5
June 8, 2017
bump -outs, and landscaping at the connection/intersection between West 6`i' Avenue
and West 5' Avenue, and, adding driveway aprons to the newly constructed parking
lot. After installation and the warranty period, Developer will maintain these public
improvements as described in the Municipal Code and in this Agreement.
k. The Developer agrees to grant a parking easement to the City to allow the use of a
part of its property adjacent to the south line of the West 5' Avenue right-of-way to
allow that easement property to be used as public parking. The Developer also agrees
to obtain all necessary encroachment agreements from the City for those elements of
the Project where features associated with private development will be located within
the public right -of way. In all cases, the terms of any easement or encroachments
must be pursuant to the terms required by the City.
5. Environmental. The parties have identified the possibility, although not necessarily the
probability, that a full or partial row of old railroad ties may be under the surface near the
north boundary line of the West 5"' Avenue right-of-way. The Developer is aware of this
condition and agrees that in the event environmental hazards are discovered within the City
right-of-way, then the Developer accepts the risks and responsibilities to remove any
environmental issues identified within the Project.
6. Maintenance:
a. The Developer will perform all maintenance on any public improvements adjoining
property owned by the Developer in accordance with City of Oshkosh Municipal
Code or state statutes.
b. Due to the Developer's request for the new street and parking configuration of West
5`i' Avenue, the City will retain the right to place parking restrictions upon the newly
created angle parking in this area to prohibit any parking in the angle parking spaces
between 2:00 a.m. and 8:00 a.m., every day of the year.
c. The Developer's required parking and street configuration limits the ability of the
City to remove snow and ice from West 5' Avenue and, therefore, snow and ice
maintenance in this area is contingent upon those persons using the angle parking
spaces to remove the vehicles during the no -parking times.
d. After the initial installation of street and parking along West 5ffi Avenue, the
Developer will be subject to normal property assessments. However, current City
policy requires that on -street parking spaces that abut private property will be fully
paid for by that private property. In the event that during future reconstruction, the
Developer or subsequent owner of the property declines or refuses to fully pay for on -
street parking, then the City reserves the right to eliminate some or all of the on -street
parking along West 5' Avenue at the City's sole discretion.
7. 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
June 8, 2017
8. City Services: Developer has requested, and consents to, services from and installation by
City of various improvements described as follows:
a. Survey and Inspection Services for Private Construction of the Project.
b. 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.
c. The attached exhibit, acknowledged by City and Developer as being true and correct,
is incorporated by reference as if fully stated herein.
EXHIBIT "C" - Waiver of Special Assessment Notices and
Hearing under Section 66.0703, Wisconsin Statutes
d. It is specifically understood by and between the parties that the amounts set forth in
the attached Exhibit "C" 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
9. Payment for City Services and Financial Guaranties
PaMent for City Services. The Developer shall supply, or cause to be supplied, a
cash deposit in the amount of Seven Thousand, five hundred and twenty seven
00/100 Dollars ($7,527.00) for survey and inspection fees as shown on attached
Exhibit C 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, or cause to be paid, all invoices, in cash,
within thirty (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.
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
7
June 8, 2017
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 C attached hereto. Upon verification
that such construction has been completed, accepted by the City and warranty bond
filed, the performance bond or letter of credit shall be extinguished and released.
c. After written acceptance by the City of the privately constructed improvements,
Developer shall submit a letter of credit in the amount specified in the attached
Exhibit C 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 public 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 for payment in addition to any remedies available to the City under
Article 10 herein.
d. 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 proj ect until
such time as an appropriate bond is filed with the City 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
10. 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 situations in which the Developer defaults in any way, including completing the
project, performing warranty work, or paying any amounts due to any party or entity, then
this provision constitutes Developer's unconditional consent to the installation by the City or
designee of all public improvements, and/or undertaking any associated remediation,
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 lawfully available remedies.
Jame 8, 2017
11. Liability and Indemnification:
a. No Personal Liability. Under no circumstances shall any City 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.
b. 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 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. This hold harmless shall be broadly construed in favor of the City, and
includes, without limitation, all matters related to any environmental issues found
within the right-of-way, the removal of snow and ice on and around West 5t` Avenue,
as well as issues related to damages sustained by others when using West 5`t' Avenue
allegedly due to the use and narrowness of the public right-of-way.
12. General Provisions
a. Entire Agreement. 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.
b. Modifications. This Agreement may be amended or modified only by written
instrument duly executed by, and delivered to both of the parties hereto.
c. 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.
d. Time of Essence. Time is of the essence.
9
June 8, 2017
e. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
f. Headings. Descriptive headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.
g. Assignment. Except as otherwise specifically set forth herein, the respective rights
and liabilities of the City and the Developer in this Agreement are not assignable or
delegable, in whole or in part, without the prior written consent of the other party.
Provisions of this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
h. No 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,
obligations, or liabilities of the Developer or any other person or cause the Developer
to be responsible in any way for the debts, obligations, or liabilities 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.
i. 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. This Agreement, or a memorandum of this Agreement, may
be recorded in the office of the Register of Deeds of Winnebago County, Wisconsin,
it being understood by the parties that the provisions of this Agreement will run with
the land and will be binding upon the Property. This Agreement inures to the benefit
of the City and its successors and assigns.
k. Construction of Document. This Agreement is the product of negotiation between all
10
June 8, 2017
parties to this Agreement 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.
1. 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.
m. Governing Law. This Agreement shall be governed by, and construed in accordance
with the laws of the State of Wisconsin. The venue for any dispute shall be
Winnebago County, Wisconsin.
n. Interest Rate on past due amounts. All amounts not paid when due hereunder shall
bear interest at the rate of twelve percent (12%).
o. 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, or cause to be
obtained, 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.
11
June 8, 2017
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
50 West 6t' Street, LLC
Andrew Dumke, Managing Member
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
CITY OF OSHKOSH
Mark A. Rohloff, City Manager
Pamela R. Ubrig, City Clerk
Personally came before me this day of June, 2017, the above-named Andrew Dumke,
to me known to be the Managing member of 50 West 6`i' Street, LLC and the person who executed
the foregoing document and acknowledged the same.
Notary Public, State of Wisconsin
My commission expires:
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personally came before me this day of June, 2017, the above-named Mark A. Rohloff
and Pamela R. Ubrig, to me known to be the City Manager and City Clerk of the City of Oshkosh,
Wisconsin and the person who executed the foregoing document and acknowledged the same.
Notary Public, State of Wisconsin
My commission expires:
This Agreement was drafted by:
Attorney David J. Praska
Deputy City Attorney
Oshkosh, Wisconsin 54903-1130
12
June 8, 2017
Mi
IM HSOHHSO
z � Jo LL NVId BITS 1N3W OUA3038
3115 AUVNVH.9
w
r -nm
me
.e «p
n
«n nn
�ry �r
.n nnnc
mry 'mm
�'
ryl; ry�
��'ryn
�g
eryn•, ne
rcom U��
�7
Fe
riei riri
Env mn
m�
�� n•-
m�m�
m� rffi
�m
�� s
a�
m o�
ra~-
z
xi xi
xi xi
w�
xi xi
xi xi
xr xi
x>xi
xi xi
a �+
w 3
C �
z
d
.• n
V U
n
U
n m
U U
y
U
� �
U U
� .a-
U U
w Na °o
rc
a
�
cy a Wzc<i
w m°i
��yo
rcom U��
O
° F
N. m ON
O (SF
°r- ot-�uW
WaaS
aF °i
(7a
'LL
wf
Gi Fj 'QVO 2 N
a
Z IQ ~ <p Nyw
yu<
HEWN
u
w
w
o
?
Im�Fj
am
o<toi�Fzoi
m<Mo�3.p
<
pa Ny aLL
psi
60 �
7Wa
=O63
all
aau
o
WQ ?
CU Q
smZ�d
6 K F
wON
x} xn
O
O O
UOyNOaN
K--1
< o o
n'
«
,r
zWz-o
NCO <i<
m
�
u
LL
mN
� 5
Nw0 V'/a:N
OV=OU
rsy
o
o
rcom U��
O
° F
N. m ON
O (SF
°r- ot-�uW
WaaS
aF °i
(7a
'LL
wf
Gi Fj 'QVO 2 N
a
Z IQ ~ <p Nyw
yu<
-
m
�
w
w
o
?
u
f
60 �
xa F
• .
O
+ =
F <
U
a
WQ ?
CU Q
-pF=Iya'ON
6N0
O
O O
O
O O
O O O
zWz-o
NCO <i<
OW w° oa�
Iwo 3
e° <u
KCY _u<
Nw0 V'/a:N
OV=OU
rsy
o
o
rcom U��
O
° F
N. m ON
O (SF
°r- ot-�uW
WaaS
aF °i
(7a
y<y YD�f
o1S j 02 �iiK
wf
Gi Fj 'QVO 2 N
o
LL?
Z IQ ~ <p Nyw
yu<
rilQ
g Ng°N m QaN
°
O
Wg
F ��LLo lit1 < 33n
�o go
w xz F� <No oam m� as
rc m� Ny �u° °oo W Jz
oa c9 dao
;F �a H you w'u No i'
rcLL w '
v Np ��
3=
€o !1�1 zq ao�� <Wpq t°r zo
Wa zz� 'o
°o is ei No 3-� swots s-' go..gg <
8
i2 o0 oa W Rn a�ao F° oa 'aw �Oo
o° 5=, 5ss� E.M.
'ice
yt3 Sts
Al ¢ oa<�W KZJU Wo
N as50
1 Jw up 6�Nual OF6
NiV WZ SOF
N n< u1w
6ObVMo :OIlO3fOad
swe'resoxo:+�a
9 :31!14 tl6K VA'�¢J
Ji. mna'na+.0 A�va+M 3 aoF
:AS NM"G spePa y -s oFsvng-saav8u3
9Tt
n
X89
i r �
w
m'HSONHSO '2nN3AV HIS 1S3M 09 .. o
.lbyN`daJ � a
:HOd ONMOOW38 03SOd0Hd .2. w
m
M
I Y83�3
�1`�
ge�s.3
"aib' 4�
tom■■
mms xawa wrea
a
:f iE=pe
zs9fi^.a
Yy3.�II3>,
J2i�9N�S�M
�i'
t H
m'HSONHSO '2nN3AV HIS 1S3M 09 .. o
.lbyN`daJ � a
:HOd ONMOOW38 03SOd0Hd .2. w
m
M
I Y83�3
.L33d1S VVSt/d93N 133d1S "Sb'd99N
;a r.
c�
s
�1`�
tom■■
nn
.L33d1S VVSt/d93N 133d1S "Sb'd99N
;a r.
c�
s
EXHIBIT C
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 of pavement markings and signage.
For private construction and public 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
1. Storm Sewer w/Laterals (Private Construction)
Estimated Construction Cost $3,000.00 Private
6% Survey & Inspection $180.00 Deposit
2. Concrete Sidewalk (Private Construction)
Estimated Construction Cost $22,900.00 Private
6% Survey & Inspection $1,374.00 Deposit
3. Concrete Street Paving and Curb (Private Construction)
Estimated Construction Cost $79,500.00 Private
6% Survey & Inspection $4,770.00 Deposit
4. Landscaping (Private Construction)
Estimated Construction Cost $5,050.00 Private
6% Survey & Inspection $303.00 Deposit
5. Street Lighting (Public Construction)
Estimated Construction Cost $7,500.00 Public
12% Design, Survey, & Inspection $900.00 Deposit
6. Pavement Marking and Signage (Public Construction)
Estimated Construction Cost $4,000.00 Deposit
10,146,11
Cash Deposit for Public Services = $7,527,00
2 — Year Irrevocable Letter of Credit for Private Construction = $121;950.00
2 — Year Irrevocable Letter of Credit after Acceptance of Private Construction = $24;390.00
Signature of Owner:
Signature of Authorized Representative Date
AndrewDumke, Registered Agent