HomeMy WebLinkAboutDeveloper's Agreement/Meadow Park.=
DEVELOPER'S AGREEMENT FOR
FINANCING IMPROVEMENTS
tent Number DoemmentTStle
MEADOW PARK
Lots 1 & 2 of CSM #6303
Meadow. Park Drive - W. 20th avenue to 1,523 ft.south
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This instrument drafted by
Attorney Lynn A. Lorenson-
PO Box -1130, -Oshkosh, WI 54903-1130
1 �4 Z+
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED 0.34
02/09/2009 09:52AM
ULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 25. @0
TRANSFER FEE
4 OF WAGES
Recording Area
Name and Return Address
-City Attorney
PO Box 1130
.Oshkosh, WI 54903-1130
Parcel Identification Nmnber (PIIq)
This information must be completed by submitter: document title, name do return address. and PIN (f required). Other information such
as the granting clauses, legal description, etc, may be placed on thisfirst page of the document or may be placed on addirional pages of the
document. Notc:.Use of this cover page adds one page to your document and $2.00 to the recording fee. Wisconsin Swnues, 59.517. MWA 206
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
October 14, 2008, 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
Oshkosh Office Building, LLC ("DEVELOPER"), in reliance on the representation and
covenants made herein, as follows:
Developer covenants and warrants that it is the owner of all the
property described as follows:
MEADOW PARK
Lots 1 & 2 of CSM # 6303
Meadow Park Drive — W. 20th Avenue to 1,523 feet south
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,
Sidewalk, Grading and Graveling, and Concrete Paving
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, Sidewalk,
Grading and Graveling, and Concrete Paving
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. The as -built plan shall be certified by a
Professional Engineer (PE) or a Registered Land Surveyor (RLS) licensed in the
State of Wisconsin to be in compliance with the grading and drainage plan approved
by the Department of Public Works. All storm water management facilities shall be
compared to the original design. Any deviation from the design shall be noted, and
the Department of Public Works may require the Developer to confirm that the as -
built facilities comply with the storm water management ordinance.
Incorporated by reference. within this Agreement is the approved grading and
drainage plan as required by Chapter 30 of the Oshkosh Municipal Code. These plans
shall be adhered to and maintained by the respective lot owners in a manner which is
consistent with the original design, function and capacity of the plan. If the respective lot
owners fail, in the sole judgment of the City, to properly maintain the grading and drainage
plan, the City shall give notice of such fact to the respective owner(s) who shall have the
time specified in the notice to correct the deficiencies. If the owner(s) does not
satisfactorily complete the work within the time allotted, the City may enter the property,
using its own employees and equipment or contracting with others to complete the work.
Developer hereby grants in perpetuity to the City reasonable and appropriate access
easements over this subdivision for such purposes. Cost incurred by the City will be levied
against the respective lot(s) as a special charge pursuant to Section 66.0627 of the
Wisconsin Statutes. This provision constitutes Developer's, and any respective lot
owner's, waiver of the notice of hearing and hearing otherwise required by Section 66.0703
of the Wisconsin Statutes. This covenant is intended to run with the land and to survive
any subsequent divestiture of title by Developer, or any respective lot owner(s) to any
successor in title but is not intended to benefit third parties who are not a party to this
agreement.
5. It is specifically understood by and between the parties that the amounts set
forth in the attached Exhibit "A" Waiver of Special Assessment Notices and Hearing under
Section 66.0703, Wisconsin Statutes are estimates only. Invoices and assessments shall
be based upon the actual costs of services and construction. In the event that the
estimated cost exceeds the actual costs of services and construction, the Developer shall
be responsible only for the actual cost of construction. In the event that the actual costs of
services and construction exceed the estimated costs, the City shall be entitled to assess
the property for any excess costs pursuant to statutory notice and hearing or upon
execution of an appropriate waiver.
A. � PAYMENTS UPON INVOICE
The following shall be paid to the City by Developer in cash within 30 days upon
invoice from the City:
Survey and Inspection Fees for:
Sanitary Sewer and Laterals, Water Main and Laterals, Storm Sewer, Sidewalk,
Grading and Graveling, and Concrete Paving
6. The attached exhibit, acknowledged by City and Developer as being true and
correct, is incorporated by reference as if fully stated herein.
EXHIBIT "A" - Waiver of Special Assessment Notices and
Hearing under Section 66.0703, Wisconsin Statutes
7. Developer, and any successors in title, covenants and agrees to release the
City, it assigns, employees, agents and contractors from any and all claims arising from the
City's performance of its obligations under this agreement and shall further hold the City
harmless for any and all claims arising from Developer's performance of its obligations
under this agreement, and shall indemnify and refund to the City all sums which the City
may become obligated to pay, including attorney fees, arising from the parties'
performances of this agreement within 30 days of written demand for payment.
8. Any refund which may be due Developer as a result of any special
assessment being in excess of the actual amount paid by City for said improvements is not
assignable by Developer.
9. All privately constructed improvements shall be completed within three years
from the date of this agreement or the Developer shall be considered in default of this
agreement and subject to the provisions of paragraph 12 relating thereto.
10. The Developer shall provide a letter of credit, which meets the approval of
the City Attorney, in an amount equal to the estimated cost of any publicly constructed
improvements or services set forth in Exhibit "A" attached hereto which may be drawn upon
by the City in payment of construction and/or related costs for the public improvements.
Such letter of credit shall be filed in the office of the City Clerk prior to approval of the Final
Plat by the Common Council.
Prior to approval by the Common Council, the Developer shall file a three year
performance bond or letter of credit, which shall be renewable at the option of the City of
Oshkosh if such construction has not been completed within the three year period specified
above and which meets the approval of the City Attorney, which shall guaranty Developer's
performance of any privately constructed improvements as set forth in Exhibit "A" attached
hereto. After written acceptance by the City of any privately constructed improvements,
Developer may submit a letter of credit in the amount specified in the attached Exhibit "A"
as a guarantee of such improvements fora period of two years from the date of
acceptance. The Developer shall be responsible for repairs to said privately constructed
improvements during this two year guaranty period.
Failure to file an appropriate bond shall entitle the City to stop all construction work
upon the project including construction performed by private contractors, by notice to the
Developer and any contractors. Notice may be given personally to an individual
representative of the contractor or Developer and/or sent by mail to the Developer or
contractor. If construction work continues without filing of an appropriate bond, the City
shall be entitled to seek an injunction to prevent further work on the project until such time
as an appropriate bond is filed and to seek such other and further relief as may be deemed
appropriate. In addition to any equitable relief, the City may seek monetary damages and
upon judgment shall be entitled to its costs and fees in pursuit of any action under the
terms of this paragraph.
11. In addition to the remedies for default provided to the City by the financial
guarantees contained within this Agreement, the City shall have the right without notice or
hearing to Developer, or any successor in title, to impose special assessments for any
amount to which the City is entitled by virtue of this Agreement upon each and every lot
within the subdivision. Such assessments shall be imposed on the individual parcels in
accordance with such parcel's share of the amount to which the City is entitled in
accordance with this Agreement and which amount has not been paid by the Developer of
such parcel or its successors or assigns. With respect to defaulting Developer, this
provision constitutes Developer's consent to the installation by the City or designee of all
public improvements and remediations required by this Agreement and constitutes
Developer's, and any successors in title, waiver and consent to all special assessment
proceedings as described in Section 66.0703, of the Wisconsin Statutes. This covenant is
intended to run with the land and to survive any subsequent divestiture of title by Developer
to, and shall be binding on, any successor in title. The remedies provided in this
Agreement are not exclusive. The City may use any other remedies available to it.
12. Developer agrees to pay any costs associated with the maintenance or
replacement of water stop boxes damaged during the development of this subdivision. It
shall not be necessary for the City to determine or establish by whom the damage was
done. Developer 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.
IN WITNESS WHEREOF, the parties heretofore have caused this Agreement to be
signed by the proper persons of each party and their corporate seals, if any, to be hereunto
affixed.
Dated: September -2 , 2008.
In the Presence of:
OSHKOSH OFFICE BUILDING, LLC
Rodney R. Oilschlager
President, Midwest Real Estate
Development Co., Inc.
Developer's Address:
2990 Universal Street, Suite B
Oshkosh, WI 54904
CITY OF OSHKOSH
:Qm
. I -By:;,,_, �;.�e'r -,-le,
Mark A. Rohloff, City Managf'er Pamela R. Ubri.g, City Oerk
Appiroyed as to Form a(n Execution:
rney
STAT5�OF WISCONSIN
SS.
WINNEBAGO COUNTY ) 4
Personally came before me this � day of
� -E�r, 2008, 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 expireshaz
This document drafted by:
Attorney Lynn A. Lorenson, City Attorney
Oshkosh, WI 54902-1130
STATE OF WISCONSIN )
) SS.
WINNEBAGO COUNTY )
Personally came before me this 21 day of
September, 2008, the above-named Rodney
R. Oilschlager, to me known to be the
persont<�S� who executed the foregoing
m �i muw�
in' t��afi�t,,,to me known to be such
`f:saEd far %ration, and acknowledged
�i�Yhe execute4oregoing instrument as
�dck&Wrs tN.,� &d of said corporation,
Si go Co n y, WI
res/is: 2012 -
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 sanitary sewer, storm sewer,
water main, laterals, grading. and graveling, sidewalk and concrete paving.
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
Meadow Park
Meadow Park Drive — W. 20th Avenue to 1,523 feet south
Meadow Park Drive
1. Sanitary Sewer and Laterals (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
2. Water Main and Laterals (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
3. Storm Sewer (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
4. Sidewalk (Private Construction)
To include handicapped ramps
Estimated Construction Cost
6% Survey and Inspection
5. Grading and Graveling (Private Construction)
Estimated Construction Cost
6% Survey and Inspection
$70,865.29 Private
$4,251.00 Invoice
$113,079.00 Private
$6,784.00 Invoice
$114,053.15 Private
$6,843.00 Invoice
$67,128.00 Private
$4,027.00 Invoice
$156,417.00 Private
$9,385.00 Invoice
Exh, A,r.I
Page 2 of 2
Meadow Park
6. Concrete Paving (Private Construction — Year 2011)
Includes Terrace Restoration
Estimated Construction Cost $251,565.00 Private
6% Survey and Inspection $15,093.00 Invoice
3 -Year Letter of Credit for Private Construction = $773,107.44
3 -Year Letter of Credit for Public Services $46,383.00
2 -Year Letter of Credit Guarantee After Acceptance of Private Construction = $154,621.49
Signature of Owner:
Date
Associated i^i`\�` �` `
Bank
IRREVOCABLE STANDBY LETTER OF CREDIT NO. DC111334
Issue Date: September 23, 2008
BENEFICIARY
CITY OF OSHKOSH
ATTN: DEPT. OF PUBLIC WORKS
215 CHURCH AVENUE
OSHKOSH, WI 54901
Dear Sir or Madam:
APPLICANT
MIDWEST REAL ESTATE DEVELOPMENT
CO., INC.
2990 UNIVERSAL STREET, STE B
OSHKOSH, WI 54904
We hereby issue our Irrevocable Standby Letter of Credit No. DC111334 in your favor for the account of
MIDWEST REAL ESTATE DEVELOPMENTCO., INC. for up to an aggregate amount USD 46,383.00
(Forty Six Thousand Three Hundred Eighty Three and N01100 U.S. Dollars) against presentation of sight
draft drawn on us when accompanied by the following documents:
A written, dated statement purportedly signed by an authorized representative of
Beneficiary certifying Applicant has defaulted on Developer's Agreement dated
September 22, 2008.
Partial drawings are permitted. All drafts drawn hereunder must be marked "Drawn under Associated
Bank, N.A. Letter of Credit No. DCl 11334".
Each drawing hereunder must reference this standby by date and number.
We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn in compliance with
the terms and conditions of this irrevocable standby letter of credit that the same will be duly honored if
presented together with the original credit, any subsequent amendments, and all other required
documentation at our office, c/o International Banking Department at 200 N. Adams St., Green Bay, WI
54301, no later than September 23, 2012.
This standby sets .forth in full our undertaking, and such undertaking shall not in any way be modified,
amplified or limited by reference to any document, instrument or agreement referred to in this standby,
except only International Standby Practices referred to herein, and any such reference shall not be deemed
to incorporate herein any such document, instrument or agreement.
Should you have occasion to contact us regarding this credit, kindly direct your communication to the
attention of International Banking at 800-230-5506, making specific reference to this letter of credit no.
DC111334.
Except to the extent otherwise expressly stated herein, this letter of credit is subject to the International
Chamber of Commerce, Uniform Customs and Practices, Publication No. 600.
Asso ' ted Bank, N.A.
Denis F. Hogan, Regiona Pr ident
Member FDIC and Associated Banc-CorpIntemational Banking, 200 N. Adams St., Green Bay, WI 54301 800-230-5506
Associated
Bank
IRREVOCABLE STANDBY LETTER OF CREDIT NO. DC111335
Issue Date: September 23, 2008
BENEFICIARY
CITY OF OSHKOSH
ATTN: DEPT OF PUBLIC WORKS
215 CHURCH AVENUE
OSHKOSH, WI 54901
Dear Sir or Madam:
APPLICANT
MIDWEST REAL ESTATE DEVELOPMENT
CO., INC.
2990 UNIVERSAL STREET, STE B
OSHKOSH, WI 54904-7427
We hereby issue our Irrevocable Standby Letter of Credit No. DCl 11335 in your favor for the account of
MIDWEST REAL ESTATE DEVELOPMENT CO., INC. for up to an aggregate amount USD 773,107.44
(Seven Hundred Seventy Three Thousand One Hundred Seven and 44/100 U.S. Dollars Forty Four )
against presentation of sight draft drawn on us when accompanied by the following documents:
A written, dated statement purportedly signed by an authorized representative of
Beneficiary certifying Applicant has defaulted on Developer's Agreement dated
September 22, 2008.
Partial drawings are permitted. All drafts drawn hereunder must be marked "Drawn under Associated
Bank, N.A. Letter of Credit No. DC111335".
Each drawing hereunder must reference this standby by date and number.
We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn in compliance with
the terms and conditions of this irrevocable standby letter of credit that the same will be duly honored if
presented together with the original credit, any subsequent amendments, and all other required
documentation at our office, c/o International Banking Department at 200 N. Adams St., Green Bay, WI
54301, no later than September 23, 2012.
This standby sets forth in full our undertaking, and such undertaking shall not in any way be modified,
amplified or limited by reference to any document, instrument or agreement referred to in this standby,
except only International Standby Practices referred to herein, and any such reference shall not be deemed
to incorporate herein any such document, instrument or agreement.
Should you have occasion to contact us regarding this credit, kindly direct your communication to the
attention of International Banking at 800-230-5506, making specific reference to this letter of credit no.
DC111335.
Except to the extent otherwise expressly stated herein, this letter of credit is subject to the International
Chamber of Commerce, Uniform Customs and Practices, Publication No. 600.
Associated Bank, N.A.
Dens F. Hogan, Regional PV
es' ent
Member FDIC and Associated Banc-CorpInternational Banking, 200 N. Adams St., Green Bay, WI 54301 800-230-5506