HomeMy WebLinkAbout16. 17-500 OCTOBER 10, 2017 17-473 17-500 PENDING
SEPTEMBER 26, 2017 RESOLUTION
(CARRIED 6-0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE DEVELOPER'S AGREEMENT FOR RIPPLE AVENUE
ESTATES;3900 BLOCK OF OREGON STREET
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:
Ripple Avenue Estates
CSM 7251
Lots 1-3
Citof�
Oshkosh
MEMORANDUM
TO: Honorable Mayor and Members of the Common Council
FROM: Steven M. Gohde, Assistant Director of Public Works 51"
DATE: October 5, 2017
RE: Approve Developer's Agreement / Ripple Avenue Estates
BACKGROUND
The Developer is proposing to build an apartment complex on a property located in the southwest
quadrant of the Oregon Street and Ripple Avenue intersection. In order to serve the proposed
development, public sanitary sewer and water main will need to be extended south within the Oregon
Street right-of-way. Additionally, the Developer will need to make improvements on Oregon Street at
the proposed site access. The improvements include a deceleration lane and a passing lane.
ANALYSIS
The Developer's Agreement ensures the installation of the required improvements by the Developer and
provides financial guarantees to the City, so the work can be completed without expense to the taxpayers.
FISCAL IMPACT
The Developer is responsible for all costs associated with installing the public infrastructure to serve the
development. Letters of credit have been provided by the Developer to the City to ensure funds are
available.
RECOMMENDATIONS
I recommend approval of the Developer's Agreement.
Approved:
Mark A. Rohloff
City Manager
SMG/tlt
L\ Engineering\Tracy Taylor\Memos to Mayor & Common Council\ 2017\ Ripple Ave Estates Dev Agreemnt Memo_10-3-17.docx
DEVELOPER'S AGREEMENT
FOR FINANCING IMPROVEMENTS
THIS AGREEMENT is made pursuant to Section 66.0703 of the Wisconsin Statutes
providing for levying and assessing the cost of various improvements to the property herein
described.
WHEREAS, the Common Council of the City of Oshkosh approved initial and final
resolutions pursuant to Section 66.0703 of the Wisconsin Statutes upon execution and
approval of a waiver, executed by the undersigned, developer of property herein described
of special assessment notices and hearing; and
WHEREAS, the undersigned developer has agreed, in consideration of installation
of various improvements and performance of services, to pay the full cost of such
improvements/services and related costs through invoice and/or special assessment
financing pursuant to Section 25-83 through 25-89 of the Oshkosh Municipal Code upon
certification by the City Engineer for the City of Oshkosh that said improvements have been
completed, except for certain improvements which may be installed by and/or paid for by
the undersigned developer; and
WHEREAS, the Common Council of the City of Oshkosh, by resolution adopted
September , 2017, 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
Premier Ripple Road, LLC, a Wisconsin limited liability company ("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:
Lot 1 of Vol. 1 Certified Survey Maps, Page 7251, Map No. 7251, Doc No.
1747144, said map being part of the NW1/4 of the NW1/4 of Section 12,
Township 17 North, Range 16 East, in the City of Oshkosh, Winnebago
County, Wisconsin.
2. DEVELOPER has requested, and consents to, services from and installation
by CITY of various improvements described as follows:
Inspection Services for Private Construction of:
Sanitary Sewer and Laterals, Water Main and Laterals, Grading, Graveling,
Restoration, and Asphalt Paving.
Page 1 of 7
Construction by the CITY of:
No construction by CITY.
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, Grading, Graveling,
Restoration and Asphalt Paving. DEVELOPER shall perform construction
staking/survey.
DEVELOPER shall perform all 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 occupancy 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 occupancy 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. The
DEVELOPER intends to construct eight (8) apartment buildings with twelve (12)
apartment units in each building (the "Project"). Notwithstanding anything aforesaid
to the contrary, 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. The DEVELOPER shall be entitled to, and the City's
Inspection Services Division shall issue, an Occupancy Permit for each apartment
building within the Project as each building is completed. Byway of clarification, no
occupancy permit shall be issued until such time as the storm water management
facilities are completed, and sewer and water service are available to each building
for which the occupancy permit is sought.
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
Page 2 of 7
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.
The DEVELOPER agrees to enter into a Long -Term Maintenance Agreement with
the CITY prior to any occupancy permits being granted. The Agreement will establish
maintenance responsibilities for the storm water management system.
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 costs of services and 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 thirty (30) days of invoice from the CITY for
additional services.
Inspection Fees for:
Sanitary Sewer and Laterals, Water Main and Laterals, Grading, Graveling,
Restoration, and Asphalt Paving. DEVELOPER shall perform construction
staking/survey.
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.
Page 3 of 7
7. DEVELOPER, and any successors in title, covenants and agrees to release
the CITY, its 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 thirty (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 within any Right -of -Way shall be
completed by July 31, 2018 (Grade, Gravel, and Asphalt Paving) or the DEVELOPER shall
be considered in default of this Agreement and subject to the provisions of Paragraph 11
relating thereto.
10. The DEVELOPER shall provide a letter(s) of credit, which meets the approval
of the City Attorney, in an amount equal to the estimated cost of any publicly -constructed
improvements and/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(s) 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 two-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 by July 31, 2018 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 (2) years from the date of acceptance. The DEVELOPER shall be
responsible for repairs to said privately -constructed improvements during this two-year
guaranty period. If the DEVELOPER fails to make any necessary repairs within sixty (60)
days of receiving written notice from the CITY, unless such repair work is prevented by
weather or other conditions beyond the control of the DEVELOPER, the CITY may make
such repairs and draw upon the letter of credit or performance bonds for payment, in
addition to any remedies available to the CITY hereunder.
Failure to file an appropriate letter of credit shall entitle the CITY to stop all
construction work upon the project including construction performed by private contractors,
Page 4 of 7
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. 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.
Page 5 of 7
IN WITNESS WHEREOF, the parties heretofore have caused this Agreement tDbe
signed by the proper persons nfeach party and their corporate seals, ifany, b}b8hereunto
affixed.
Dated: 2017.
IOthe Presence of:
Premier Ripple Road, LLC, a Wisconsin Limited Liability Company
wpm
By: Calvin M. Akin
Sole Member
3120 Gateway Road
Brookfield, WI 53045
CITY OF OSHKOSH
AA
Mark A. Rohloff, City Manager
Approved 8SfOForm and Execution:
Lynn A. Lorenson, City Attorney
STATE OFWISCONSIN
SS.
WINNEBAGO COUNTY
Personally came before methis ___ day of
September, 2O17.the above-named Mark A. Rnh|off.Chv
Manager, and Pamela R.Ubhg.City Clerk, ofthe City of
Oshkosh, omunicipal corporation, tomeknown hnhethe
persons who executed the foregoing instrument, and tn
me known to be such officers of said corporation, and
aoknmv|mdOod that they executed the foregoing
instrument as such officers as the deed of said
corporation, byits authority.
Notary Public, Winnebago Cn.VV|
yNyCommission axpimas/is:_____
This document drafted by:
Attorney Lynn A.Loranson.City Attorney
Oshkosh, WI 54902-1130
Pamela R. Ubrig, City Clerk
Page 6 of 7
STATE DFWISCONSIN )
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PomonoUycame before methis
' W44 day nf
[
8eptembe2O17.thaabova'nonnedCa|vin
W1.Akin, tomeknown tobethe peruon(a)who
executed the foregoing instrument and tonne
known tobesuch officer ofsaid corporation,
d acknow
DEVELOPER'S AGREEMENT REQUIREMENTS
BEFORE adoption of the Developer's 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 two (2) years.
Letter(s) of credit in the amount of any publicly -constructed improvements or
services which may be drawn upon by the CITY in payment of construction and/or
related costs for the public improvements. Letters of credit shall be for two (2)
years.
Please contact the Department of Public Works with any questions in this regard.
After private construction is complete, a two-year letter of credit, which meets the
approval of the City Attorney, may be filed in an amount equal to twenty percent (20%) of
the total construction cost to guarantee the privately -constructed improvements. Upon the
written acceptance of the work by the CITY and the filing of this two-year letter of credit, the
letter of credit or bond specified above may be released.
Written approval of private construction under a Developer's Agreement will be
issued by the Department of 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 Department of
Public Works 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's 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
(920)236-5065 (920)236-5011 (920)236-5005
Page 7 of 7
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 inspection of sanitary sewer and lateral, water main and laterals, grading, asphalt
pavement and restoration.
For private construction and construction staking survey and public inspection of.sanitary sewer
and lateral, water main and laterals, grading, asphalt pavement and restoration.
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
hereof:
Description of Premises
Ripple Avenue Estates
CSM
Lots 1-3
Construction of Utilities and Access for Ripple Avenue Estates
1. Sanitary Sewer & Laterals (Private Construction)
Estimated Construction Cost
3% Inspection
2. Water Main with Laterals (Private Construction)
Estimated Construction Cost
3% Inspection
Grading and Restoration (Private Construction)
Estimated Construction Cost
3% Inspection
$28150.00 Private
$844.50 Payment
$131,850.00 Private
$3,955.50 Payment
$23,500.00 Private
$705.00 Payment
4. Grade, Gravel and Asphalt Paving (Private) — Paving completed by July 31, 2018.
Acceleration/Deceleration Lane and Passing Lane on Oregon St = $67075.00
Emergency Access off Ripple Ave = $7,800.00
1AEngineeringWaiver of Special Assessment\Ripple Ave Estates waiver.doc
Ripple Ave Estates
Page 2 of 2
Estimated Construction Cost $74,875.00 Private
3% Inspection $2,246.25 Payment
5. Final Plat Monuments (Private)
Estimated Construction Cost $2,000.00 Private
Summary of Cost Calculations
Dev Agree Waiver Section
Private Cost
Inspection (Public)
1
$28,150.00
$844.50
2
$131,850.00
$3,955.50
3
$23,500.00
$705.00
4
$74,875.00
$2,246.25
5
$2,000.00
$0.00
Totals
$260,375.00
$7,751.25
2 — Year Irrevocable Letter of Credit or Bond for Private Construction = $260,375.00
Cash Payment for Public Engineering, Inspection and Construction = $7,751.25
2 — Year Irrevocable Letter of Credit after Acceptance of Private Construction = $52,075.00
Signature of Owner:
000*
—_--_.
Signature of Authorized Representative
BEngineering\Waiver of Special Assessment\Ripple Ave Estates waiver.doc
1isI-7
Date