Loading...
HomeMy WebLinkAbout25. 18-370 JULY 10, 2018 18-370 RESOLUTION (CARRIED LOST LAID OVER 6-0 WITHDRAWN ) UNTIL JULY 24, 2018 COUNCIL MEETING PURPOSE: APPROVE DEVELOPER'S AGREEMENT/PICKART ESTATES, PHASE I; NORTH 3300 BLOCK OF WEST 9TH AVENUE INITIATED BY: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: Pickart Estates, Phase I Lots 1-24 and Outlots 1-4 i 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, a subdivision development identified as Pickart Estates Phase I has been recorded with the Winnebago County Register of Deeds and resulted in the dedication of certain property as a future public park and other property dedicated as a public right-of-way; and WHEREAS,the property dedicated as public right-of-way within Pickart Estates Phase I will required the construction and installation of certain public improvements within this subdivision, with the approval of the plat contingent upon, among other things, the actual construction, installation, and/or payment of these public improvements by the Owner and the Developer;and 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,Owner and Developer of property herein described of special assessment notices and hearing; and WHEREAS, the undersigned Owner and Developer have 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 2018, 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 Paul A. Pickart ("OWNER") and K and P Developement, LLC ("DEVELOPER"), in reliance on the recitals, representation, and covenants made herein, as follows: 1. Owner covenants and warrants that he is the owner of all the property described as follows: Lots 1,2,3,4,5,6,7,8,9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21,22,23,and 24,and Outlots 1,2,and 3,Pickart Estates Phase I subdivision,recorded with the Winnebago County Register of Deeds at Page in the book of Plats on ,2018 as Document Number ,and being part of the 1 June 29, 2018 Southwest%4 and the Southeast''/4 of the Southwest'/4 of Section 20, Township 18 North,Range 16 East,City of Oshkosh,Winnebago County,Wisconsin 2. Owner and Developer,jointly and severally, agree to be responsible for the obligations set forth in this Agreement,as well as all laws,rules,regulations which apply to Pickart Estates Phase I. 3. Owner and Developer have requested, and consent 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, Restoration, Outlots 1 -4 Sidewalk and Trees, Concrete Paving, Street Lighting equipment, and installation of lighting conduit. Construction by the City of: Remainder of Street Lighting including but not limited to: pull boxes, light bases, wiring,installation of developer supplied light poles and light fixtures. 3. The Owner and Developer shall install,and the City expressly consents to Owner and Developer installation of the following improvements: Sanitary Sewer and Laterals,Water Main and Laterals,Storm Sewer and Laterals,Sidewalk, Grading, Graveling and Restoration,Detention Basin Grading and Restoration,Park Land Grading and Restoration, Concrete Paving, Terrace Trees, acquisition of Street Lighting equipment,and installation of lighting conduit. Owner and Developer shall perform survey,grading,restoration and inspection for all areas outside of the right of way,including all lot corner elevations. All final restoration within the Right of Way shall include 6" of topsoil, seed, fertilizer and erosion mat. Park land restoration shall include a minimum of 6" of topsoil, seed, fertilizer and crimped straw mulch. I i 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. The Owner and Developer have requested to 2 June 29, 2018 i leave lots four to six inches(4"-6")low to allow for basement excavation material to be used to finish the grading. Owner and Developer shall be eligible for a Temporary Occupancy Permit as allowed by law prior to completion of the structure and of the final grading. Owner and Developer shall not be eligible for a Final Occupancy Permit until the building has been f completed as approved by the City Department of Community Development,and until the lot's final grading has been approved by the City Department of Public Works, with thte final grading considered approved upon providing an as built elevation of each lot at the time a Final Occupancy permit is sought confirming final grades are within one tenth of a foot(0.101) of grades shown on the approved Grading and Drainage Plan. 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 Owner and 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. j Owner and 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 Owner's and 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 Owner and 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 Owner and Developer agrees to enter into a Long Term Maintenance Agreement and Storm Water Management Facility Maintenance Agreement with the City prior to selling any interest in any portion of the plat. The agreement will establish who shall be responsible for the long term maintenance of Outlots 1 - 3, 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 Owner and 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. 3 June 29, 2018 A. Payment for City Services The Owner and 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, Graveling, Restoration, Outlots 1 -4 Sidewalk and Trees, Concrete Paving, Street Lighting equipment, and installation of lighting conduit. 6. The attached exhibit,acknowledged by City and Owner and Developer as being true j 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. Owner and 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 f and all claims arising from Owner and/or 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 Owner and/or 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 Owner and Developer shall be considered in default of this agreement and subject to the provisions of paragraph 12 relating thereto. I 10. The Owner or Developer shall provide a cash payment, in an amount equal to the estimated cost for any publicly constructed improvements and/or services set forth in Exhibit"A" attached hereto which shall be drawn upon by the City in payment of construction and/or related costs for the public improvements. Payment 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 Owner and 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 three year period specified above and which meets the approval of the City Attorney,which shall guaranty Owner and Developer's performance of any privately constructed improvements as set forth in Exhibit"A"attached hereto. The Owner 4 June 29, 2018 I and 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, Owner and 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 !. Owner and Developer shall be responsible for repairs to said privately constructed improvements during this two year guaranty period. i Failure to file an appropriate letter of credit shall entitle the City to stop all construction work upon the proj ect including construction performed by private contractors,by notice to the Owner and Developer and any contractors. Notice may be given personally to an individual representative of the contractor or Owner and Developer and/or sent by mail to the Owner and 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 Owner and 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 Owner and Developer of such parcel or its successors or assigns. With respect to defaulting Owner and Developer,this provision constitutes Owner and Developer's consent to the installation by the City or designee of all public improvements and remediation required by this Agreement and constitutes Owner's and 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 Owner and/or 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. Owner and Developer agree 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. Owner and 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. Owner and Developer shall pay the actual costs incurred by the City within 30 days upon invoice from the City. 13. Owner and Developer shall, at its expense, move, reroute, and reconfigure the underground drain tile used for storm water and ground water drainage purposes as proposed and approved so that the resulting location of the drain tile is around and only within Outlot 2 of Pickart 1 Estates Phase I and subsequent phases. 5 June 29, 2018 i II 14. Outlot 4 of Pickart Estates Phase I has been dedicated to the City of Oshkosh for public park purposes. Owner and Developer may temporarily use Outlot 4 for limited purposes related its initial installation of public improvements within the public right-of-way. This permission expires without notice at the completion of the initial public improvements. Owner and Developer's use of Outlot 4 is at their own risk,and they shall be liable to the City to the extent any damages and costs are related to their, or their contractors or assignees, use of Outlot 4. At the point all initial public improvements are completed,Owner and Contractor shall leave Outlot 4 in a graded condition according to the approved plan,with at least a uniform cover of six(6)inches of topsoil,seed,and fertilizer,with crimped in straw for mulch. 15. 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 all affected properties within Pickart Estates Phase I. SIGNATURES ON FOLLOWING PAGE I f i i 6 June 29, 2018 i 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. t Dated: ,2018. In the Presence of: Owner Vaa Qdd Paul A. Pickart 3420 W. 91"Ave. Oshkosh,WI 54904 K and P Developement, LLC Developer By: Kevin K. Jaenke, anaging Member 935 Linden Oaks Drive Oshkosh,WI 54904 CITY OF OSHKOSH By: And: Mark A. Rohloff, City Manager Pamela R.Ubrig, City Clerk Approved as to Form: Lynn A.Lorenson, City Attorney STATE OF WISCONSIN ) STATE OF WISCONSIN ) SS. WINNEBAGO COUNTY ) SS WINNEBAGO COUNTY ) Personally came before me this day of Personally came before me this day of 2018, the above-named Mark A. 2018, the above-named Rohloff, City Manager, and Pamela R. Ubrig,City Clerk, Paul A Pickart, and Kevin K. Jaenke, to me of the City of Oshkosh, a municipal corporation, to me known to be the person(s)who executed the known to be the persons who executed the foregoing foregoing instrument and to me known to be instrument, and to me known to be such officers of said such persons , and acknowledged that he corporation, and acknowledged that they executed the executed the foregoing instrument as such foregoing instrument as such officers as the deed of said officer as the deed of said corporation, by its corporation, by its authority. autho Notary Public,Winnebago Co.,WI Notary Public,Winnebago County,WI My Commission expires/is: My Commission expiresfis: i Attorney David J. Praska,Deputy City Attorney ''' ' • Oshkosh, WI 54902-1130 `��,H�RSC,y•,, June 29, 2018 . ' �AOTAR y ' v�• PUBLIC �z *"OF WJS �.. i DEVELOPER AGREEMENT REQUIREMENTS j 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. i 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 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,may 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 or bond 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. i This agreement requires the Owner and Developer,immediately upon transfer of title to any j 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 i 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 8 June 29, 2018