Plan Commission considers amendment of final land dividers agreement for Westfield Meadows.

(Ed.note: This is the draft text to be discussed at the Planning Commission meeting on Monday night at City Hall, January 4, 2010)


AMENDMENT TO
“AMENDED FINAL LAND DIVIDER’S AGREEMENT”
FOR WESTFIELD MEADOWS

WHEREAS, an agreement entitled “Amended Final Land Divider’s Agreement – Westfield Meadows” between Evansville Development Group, Inc., and the City of Evansville was made the 21st day of April, 2006;

WHEREAS, certain responsibilities and obligations of both parties under the “Amended Final Land Divider’s Agreement – Westfield Meadows” have not been completed;

WHEREAS, Evansville Development Group, Inc., is unable to fulfill certain responsibilities and obligations at this time due to the decline in the housing market;

WHEREAS, the City of Evansville desires to have adequate security to ensure Evansville Development Group, Inc., shall fulfill its responsibilities and obligations;

WHEREAS, the Evansville Plan Commission has reviewed and recommended approval of this Amendment to the “Amended Final Land Divider’s Agreement – Westfield Meadows;”

WHEREAS, the Evansville Development Group, Inc., and the City of Evansville specifically incorporate into this Amendment, as if set forth fully herein, all of the terms and obligations of the April 21, 2006, “Amended Final Land Divider’s Agreement – Westfield Meadows” not amended below;

NOW, THEREFORE, in consideration of these recitals and the mutual covenants set forth below, Evansville Development Group, Inc., a Wisconsin corporation, and the City of Evansville, a municipal corporation of the State of Wisconsin, located in Rock County mutually agree this ______ day of January, 2010, the Evansville Development Group, Inc., and the City of Evansville specifically incorporate into this Amendment, as set forth fully herein, all of the term and obligations the provisions of the “Amended Final Land Divider’s Agreement – Westfield Meadows” dated April 21, 2006, are incorporated into this Amendment as if set forth fully hereinnot amended below.

Evansville Development Group, Inc., and the City of Evansville further agree said “Amended Final Land Divider’s Agreement – Westfield Meadows” is hereby amended as follows:

Section I.A shall be amended to read: Construction in Phases. Developer agrees to install at its own expense or to pay the City’s or municipal utility’s cost of installing all public improvements including, but not limited to, streets, sidewalks and bicycle/pedestrian paths, sanitary sewers, water distribution system, surface water drainage system, and electrical system by phases indicated in Section VIII of this Agreement. Developer may, in its sole discretion, install public improvements in subphases within each phase. Developer shall not start installation of any phase or subphase beyond that already installed on January 1, 2010, until all special assessments under section I.H.2.A and the fee in lieu of parkland under section III.C have been paid to the City in full for lots [identify lots here].

Section I.B shall be amended to read: Developer’s Obligation to Pay Costs.
1. Developer agrees that it is obligated to construct, furnish, install, and provide all public improvements in the Subdivision or necessary for the Subdivision at its own expense or to pay the City’s or municipal utility’s cost of constructing, furnishing, installing, and providing such public improvements. If it is necessary to incur some additional cost not explicitly mentioned in this Agreement in order for Developer to be able to perform any obligation of the Developer under this Agreement, Developer agrees the Developer is obligated to pay such cost.

2. In consideration of the construction by the City of Evansville of the Sanitary Sewer Lift Station Number 6, the Evansville Development Group, Inc., hereby admitsacknowledges that this improvement benefits the property located in the Subdivision and consents to the levying of special assessments for the cost of the improvement against its premises under Wisconsin Statutes, section 66.0703. In accordance with Wisconsin Statutes, section 66.0703(7)(b) the Evansville Development Group, Inc., hereby waives all special assessment notices and hearings required by Wisconsin Statutes, section 66.0703, and further agrees and admits that the benefit to its properties from the construction of this improvement is in proportion to the properties served.

Section I.H.2.A shall be amended to read: One-half of the cost of $144,376.72 or $72,188.36, plus interest payable on the start of infrastructure construction of Phase I.
shall be levied as a special assessment on a per lot basis on lots [identify lots here] deferred until sale of each said lot with interest accruing at the rate of 5.625% per annum, pursuant to Resolution 2010-03.

Section I.L.3 shall be deleted: To install monument signs bearing the name “Westfield Meadows” in or near the traffic circle at the intersection of South 6th Street and Badger Drive and at the northeast corner of Lot 52. Developer will also install plantings, which will be subject to reasonable approval of the City, in or near the traffic circle at the intersection of South Sixth Street and Badger Drive. and that Developer will form an Owner’s Association to maintain the plantings and sign. Said monument signs shall comply with Article X of Chapter 130 of the Evansville Municipal Code.

Section III.B shall be amended to read: Deed Restrictions. Developer agrees to execute and record deed restrictions in a form as will be separately approved by the City prior to the sale of any lots in the subdivision. Such restrictions shall include, but are not limited to, covenants as follows: that there shall be no further division or subdivision of lots on this plat; that there shall be no residential development on Outlots without the consent of the City; and that this Final Land Divider’s Agreement has been entered into between Developer and the City, a copy of which is on file in the City Clerk’s office; and that the lots in this Subdivision are subject to a special charge on the part of the City to maintain the monument sign and any associated plantings referenced in Section I(L)(3) of this Agreement in the event the Owner’s Association to be created by the Developer is never created or fails to maintain such monuments and plantings.

Section III.C shall be amended to read: Parkland Dedication. Developer agrees that the 15-foot bicycle/pedestrian path that runs from Porter Road to 7th Street along the western boundary of the subdivision consists of 38,775 square feet and constitutes the only parkland dedicated to the City and that such parkland is not sufficient to meet Developer’s parkland dedication obligation under Section 110-192 of the Evansville Municipal Code. Developer further agrees to pay to the City a fee in lieu of parkland dedication for each lot or unit, as the case may be, for each subphase of construction. Except for the initial subphase, being that which was installed prior to January 1, 2010, tThe fee will be due at the time construction commences in each subphase and the fee shall be in the amount in effect at the time the payment is due. The land area dedicated for the bike path will be used as a credit of $15,032.68 against the parkland requirement in the first phase. In the case of the initial subphase, the Developer shall pay, without interest, to the City $_____ , said amount reflecting the appropriate fee in lieu of parkland and the credit for the bike path property, upon the sale of each of lots [identify lots here].

Section VI.A shall be amended to read: No building permits shall be issued by the City for any lo in the Subdivision until the Common Council has approved this Agreement and the final plat of the Subdivision, Developer has paid in full all sums that are required to be paid within ten (10) days of approval of this agreement by the Common Councilunder the Agreement as amended on January 12, 2010, the City Clerk/Treasurer has signed the final plat, and the final plat has been recorded.

Section VI.H shall be added to read: No building permit shall be issued for construction on any of lots [identify lots here] until the special assessment under section I.H.2.A and the fee in lieu of parkland under section III.C have been paid to the City for said lot.

Section VII shall be amended to read: Plat Approval. The City shall approve the final plat of the Subdivision and cause the same to be signed, acknowledged, and delivered to the Developer, except to the extent this Agreement permits the City Clerk/Treasurer to refuse to sign said final plat pending receipt of a required payment from Developer. The City shall not consider nor approve any application for a certified survey map or any splitting or combining of lots within the approved plat until all special assessments under section I.H.2.A and the fee in lieu of parkland under section III.C have been paid to the City in full for lots [identify lots here].

Section VIII.A shall be amended to read: Phases Identified. The City agrees to allow Developer to complete the installation of all improvements in the Subdivision in two phases, or in sub-phases subject to review for feasibility and approval by the City Engineer, provided however that improvements which are not physically located within the area of any specific phase but are necessary to serve the lots within that phase shall be installed as part of the improvements for that phase. The City shall not consider nor approve any application for a public improvements beyond the initial subphase, being that which was installed prior to January 1, 2010, until all special assessments under section I.H.2.A and the fee in lieu of parkland under section III.C have been paid to the City in full for lots [identify lots here].

Section XIV shall be amended to read: Amendments. The City and Developer, by mutual consent may amend this Agreement at any regularly scheduled meeting of the City’s Common Council, if properly noticed pursuant to the open meeting law. Any such amendment shall be in writing.The Common Council shall not, however, consent to an amendment until after first having received a recommendation from the City’s Plan Commission.

Paragraph A of Exhibit B of the “Amended Final Land Divider’s Agreement – Westfield Meadows” shall be amended to read: No building permits shall be issued by the City of Evansville (the “City”) for any lot in the Subdivision until the Common Council has approved the Final Land Divider’s Agreement (the “Agreement”) between Evansville Development Group, Inc., (the “Developer”) and the City, the City has approved the final plat of the Subdivision, Developer has paid in full all sums that are required to be paid within ten (10) days of approval of the Agreement by the Common Councilunder the Agreement as amended on January 12, 2010, the City Clerk/Treasurer has signed the final plat, and the final plat has been recorded.

[Need to attach original agreement as an exhibit].

IN WITNESS WHEREOF, the parties have caused this Amendment to be executed on the date first above stated.

CITY OF EVANSVILLE:


Sandra J. Decker, Mayor


Judy L. Walton, City Clerk

EVANSVILLE DEVELOPMENT GROUP, INC.


Daryl T. Fox, President


Roger M. Berg, Vice President

The obligations of the Developer stated above in this Amendment are hereby personally guaranteed by the undersigned, who state they fully understand and accept the responsibilities of the Developer.


Roger M. Berg, Personal Guarantor


Daryl T. Fox, Personal Guarantor


Robert ____ Petterson, Personal Guarantor


Phillip _____ Woodworth, Personal Guarantor