FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR PLAT OF BEAR TREE FARMS LOCATED IN THE VILLAGE OF WINDSOR, DANE COUNTY, WISCONSIN

Transcription

1 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR PLAT OF BEAR TREE FARMS LOCATED IN THE VILLAGE OF WINDSOR, DANE COUNTY, WISCONSIN THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT is executed by and between Bear Tree Farms, Inc., a Wisconsin corporation, with its principal business office located at 370 Campbell Hill Court, DeForest, WI ("Developer"), and the Village of Windsor, a Wisconsin municipal corporation, with its principal business office located at 4084 Mueller Road, DeForest, WI ( Village ), and shall be effective when executed by both parties. RECITALS WHEREAS, the Village (as successor-in-interest to the Town of Windsor) conditionally approved the Plat of Bear Tree Farms, recorded by the Dane County Register of Deeds as Document No (the Plat ), as set forth in the Town of Windsor Board Resolution approved on June 18, 2015, which resolution contains the express acknowledgment and consent of the Developer; and WHEREAS, one of the conditions of approval of the Plat was that the Village and Developer enter into a Development Agreement, which was fully executed and effective September 18, 2015, and recorded December 17, 2015 by the Dane County Register of Deeds as Document No (the Original Agreement ); and WHEREAS, the Village and Developer desire to amend the Original Agreement by this First Amendment approved by the Village Board in 2017 and to be effective when executed by the parties (the First Amendment ), all on the terms and conditions set forth herein; and WHEREAS, the Original Agreement and the First Amendment shall be collectively referred to herein as the Development Agreement; and WHEREAS, the principal purpose of this First Amendment is to set forth particular requirements for development of Lots 1, 2 and 3 of the Plat for a commercial site and a multifamily residential project to be known as the Covered Bridge Residences at Bear Tree Farms (the Project or Covered Bridges ), all as proposed and presented to the Village Board by Terrence Wall and his representatives; and WHEREAS, the Project is to be constructed in phases, with each phase owned by a separate limited liability company; and WHEREAS, the Village has approved the Project subject to certain terms and conditions, which terms and conditions are hereby accepted by the Developer and shall not hereafter be contested by either party, but which may be amended by mutual consent of the parties; and 1

2 WHEREAS, to ensure that the initial development of the Project, future phases of the Project, and ongoing maintenance and operation is of the same quality as represented to the Village during the permitting and approval process, the Developer and Village desire to enter into this Agreement and shall furthermore set forth certain requirements in private covenants and restrictions that will run with the land on which the Project is to be located. AGREEMENT NOW, THEREFORE, in consideration of the recitals above, which are incorporated by reference, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Subject Property. The Development Agreement applies to the whole Plat; however, this First Amendment focuses on provisions that will substantially affect a portion of the Plat designated by the Developer as Phase 6. Phase 6 includes Lots 1, 2 and 3, which are zoned for commercial and multifamily development, and the balance of Phase 6, which is zoned for single-family development. In this First Amendment, the term Subject Property refers to Lots 1, 2 and 3 of the Plat. A location map showing the Subject Property is included in the Supplement to this First Amendment and incorporated by reference. 2. Addendum. As indicated in Section 1.2 of the Original Agreement, subsequent phases of development within the Plat shall require an addendum between the Village and Developer. This First Amendment serves as such addendum and is consistent with the terms of the Original Agreement, which are hereby ratified and incorporated herein. The First Amendment includes specific terms and conditions for the Project which shall occur on the Subject Property. The specific terms of the First Amendment include, but are not limited to, the following: the Engineer s opinion of probable cost of public improvements; the required amount of the letter of credit; construction plans; sewer/water extension approvals and payment of related fees; confirmation that Developer is current regarding payment in lieu of park dedication fees as set forth in Section 1.8 of the Original Agreement; full payment of the fee for initial improvement of parkland at the amount per unit in effect when the phase is commenced; full payment of impact fees and special assessments; and, such other special requirements related to the phase as are required by the Village and set forth herein. Except as otherwise specifically defined herein, terms used in this First Amendment shall have the same meaning as in the Original Agreement. 3. Certified Survey Maps Shall Redivide Lots. Developer has submitted certain certified survey maps (CSMs) for the Village s consideration. The CSMs redivide Lots 1, 2 and 3, and the Plan Commission has recommended the CSMs for approval as set forth in Plan Resolutions , and entitled RECOMMENDING APPROVAL OF A CERTIFIED SURVEY MAP (CSM West) AND A CERTIFIED SURVEY MAP (CSM East) AND SITE PLAN FOR THE PROJECT FOR COVERED BRIDGES 1 RESIDENCES, LLC REGARDING LOTS 1, 2 & 3 OF THE 2

3 PLAT OF BEAR TREE FARMS IN SECTION 28 OF THE VILLAGE OF WINDSOR, DANE COUNTY, a copy of which is included in the Supplement and incorporated herein by reference. This First Amendment, when executed by the parties, shall satisfy the requirement for a development agreement set forth in said Resolutions. The parties agree to and shall amend the transfer restrictions previously recorded with the Plat to reflect the changes made by this First Amendment, all in a form approved by the Village Attorney and Directory of Planning & Development. Stormwater easements in the underlying Plat shall be vacated and new stormwater easements shall be provided by the Developer to satisfy the Stormwater Management requirements for the Plat, as set by the Capital Area Regional Planning Commission ( CARPC ), Dane County Land and Water Resources ( Dane County ) and the Village. 4. Project Phases. The Project shall be developed in four phases. Each phase of the Project shall hereafter be referred to as Covered Bridges Phase. A map showing anticipated Project phases for Phase 1, 2, 3 and 4 is included in the Supplement to this First Amendment and incorporated by reference. For consistency with the Plat phasing plan, these Project Phases may also be referred to as BTF-Phase 6A, BTF-Phase 6B, BTF- Phase 6C and BTF-6D, and the remaining single-family lots in Phase 6 shall be referred to as BTF-Phase 6E. The Developer and Village acknowledge that the timeline for development of Covered Bridges Phases 2, 3 and 4 / BTF-Phase 6E are dependent on market conditions and absorption rates. The Developer further acknowledges and agrees to comply with the following triggers for public improvements associated with the Project Phasing Plan: a. Installation of Stormwater Management per updated CARPC Approval: prior to commencement of Phase 2, 3 or 4; stormwater ponds to be installed concurrent with Phase 1 b. Installation of Border Pass (as set forth herein): prior to commencement of Phase 2, 3 or 4 c. Installation of Warner Farm Drive (as set forth herein): prior to commencement of Phase 3 5. Commercial Lot. Development of the commercial lot within the Subject Property shall occur concurrent with construction of Covered Bridges-Phase 2, and shall be subject to the Development Agreement and Deed Restriction. The Deed Restriction shall run with the land to ensure that development of the commercial lot will be compatible with Covered Bridges. Developer shall execute the Deed Restriction, which shall be in the form included in the Supplement to this First Amendment and incorporated by reference, and the Village shall record same at the Developer s expense. Neither Covered Bridges-Phase 3 nor Covered Bridges-Phase 4 shall be approved until the development of the commercial lot is complete and an occupancy permit issued. 6. Stie Plan Review. Execution of this First Amendment serves as confirmation of the Village s conceptual approval of the Project for the Subject Property as a whole. However, 3

4 each phase of the Project shall be subject to the Village s Site Plan Review ordinance. As of the date of execution of this First Amendment, the Developer has only submitted application materials for Covered Bridges-Phase Border Pass: Public Right-of-Way (ROW) and Water and Sewer Utility Connection. a. Public Right-of-Way. The public ROW dedicated as Border Pass on the Plat shall extend west through the Village of DeForest to Pederson Crossing Blvd. as depicted on Certified Survey Map No. (CSM ), a draft copy of which is included in the Supplement to this First Amendment and incorporated by reference. The Developer owns Lot 2 of CSM which is bisected by Border Pass. The Developer, and its successors and assigns, shall use its rights to preserve the public ROW as dedicated on CSM, including taking such actions as are reasonably necessary to prevent the vacation of Border Pass by the Village of DeForest or others, unless said vacation is first approved by the Village Board of the Village of Windsor. b. Windsor Utilities. Prior to its dedication as public ROW in CSM, the Developer granted the Village a 66 foot-wide public utility easement recorded in the Dane County Register of Deeds office as Doc , a copy of which is included in the Supplement to this First Amendment and incorporated by reference. The Village and Developer acknowledge and agree to the following: i. the existing public utility easement set forth in Doc was recorded before CSM, and is referenced in CSM, thereby providing the Village with a continuing right to place its utilities in the easement area described in Doc ; and ii. the ROW dedication on CSM, provides public ROW for installation of public utilities as well as a direct connection from Pederson Crossing Blvd. east through the Village of DeForest to the Plat in the Village of Windsor; and iii. the Developer owns the land on either side of the dedicated ROW and hereby voluntarily agrees that neither it nor its heirs, successors and assigns shall agree or allow the Village of DeForest to vacate Border Pass from Pederson Crossing Blvd. to the Plat, unless vacating said public ROW is first approved by the Village of Windsor; and iv. the Developer shall obtain and provide to the Village and its police, fire, EMS and first responders such rights in the Projects private streets as the Village would ordinarily have in public ROW to allow for public safety services to be provided in Covered Bridges - Phase 1, including the right of access and connections to water, all in a form acceptable to the Village Board; and v. the existence of the Plat adjacent to and east of property being developed in the Village of DeForest, which property is served by the Windsor Water 4

5 Utility and the Windsor Sewer Utility, presents a unique configuration that supports the approval by the Village of an exception to its general policy to require construction and installation of all public improvements in Border Pass prior to approval of Covered Bridges Phase 1; and vi. this waiver is contrary to the Village s general policy of requiring completion of public improvements and access prior to issuing a building permit, and is only granted due to the unique circumstances presented. For the consideration set forth herein, the Village hereby waives its right to require installation of Border Pass prior to Developer s commencement of construction of public stormwater management measures or issuance of a building permit for private improvements for Covered Bridges Phase 1. c. Installation of Border Pass Shall Be a Condition of Future Approvals. Construction and installation of Border Pass from Pederson Crossing Blvd. east to a point that is no less than 66 feet inside of the Plat is hereby required and shall be completed at Developer s expense at the earlier to occur of: (1) final site plan approval or building permit issuance for Covered Bridges-Phase 2, 3 or 4; and/or, (2) phasing approval or building permit issuance for single family in what was identified as Phase 6 in the Plat s original phasing plan, which phasing plan is included in the Supplement. No building permits shall be issued for Covered Bridges-Phase 2, 3 or 4 or any single-family lot in BTF-Phase 6E until Border Pass is fully improved from Pederson Crossing Blvd. to the agreed upon point within the Plat. (Note: This requirement is in addition to customary requirements for site plan approvals and building permit issuance.) The Village is authorized to record notices of the above-described Border Pass requirement that run with the land, which shall be prepared and recorded at the Developer s expense. 8. Warner Farm Drive. Developer shall construct Warner Farm Drive commencing at the intersection of Warner Farm Drive and Windsor Road to a southerly point no less than the intersection of Warner Farm Drive and the private drive entry to Covered Bridges. Such construction shall be completed on or before the earlier of: (a) final site plan approval or building permit issuance for Covered Bridges-Phase 3; or, (b) ten (10) years after the effective date of this First Amendment. 9. Water and Sewer Utilities for Covered Bridges. Developer, at its expense, shall install the necessary improvements for water and sewer service at Covered Bridges. Said infrastructure shall be installed in accordance with plans that meet the Village Water Utility and Village Sewer Utility standards, and no installation shall be made until the Village Engineer has confirmed that the Village has no objections to said plans. For public health, safety and welfare, the Developer shall grant the Village access to all such infrastructure via an easement, which shall be in a form acceptable to the Village Board, Village Attorney and Village Engineer and shall be recorded prior to Developer s conveyance of the easement property to any third parties. The easement shall confirm 5

6 that maintenance and replacement of said infrastructure shall be at the property owner s expense, but that the Village shall have the right, but not the obligation, to maintain and repair the infrastructure where and when it deems necessary for public health, safety and welfare, and that the Village may recover such costs as special charges or assessments against the real property. The Developer, for itself and its heirs, successors and assigns, hereby waives the right to contest any such special charges or assessments. 10. Stormwater Management Requirements for Covered Bridges. No development of the Subject Property shall occur until the Developer has obtained approval from the Capital Area Regional Planning Commission or its successor ( CARPC ) of a revised stormwater management plan that meets current criteria for development of the Plat at the densities set forth herein. The Village Engineer shall be given an opportunity to review and comment on the application Developer makes to CARPC for these purposes. No final site plan approvals, final certified survey maps, building permits or other Village approvals shall be issued by the Village to Developer or third parties with respect to the Plat until formal written approval from CARPC has been obtained by Developer and acknowledged by the Village Engineer and Village President. 11. Protective Covenants for Covered Bridges. Protective Covenants for the area to be developed as Covered Bridges shall be updated to be consistent with the plans presented to and conceptually approved by the Village. The Protective Covenants shall run with the land. Developer shall execute the Protective Covenants, which shall be in the form included in the Supplement to this First Amendment and incorporated by reference, and the Village shall record same at the Developer s expense. 12. Impact Fees and Assessments. The Developer shall be responsible for payment of applicable assessments and impact fees for the booster pump, water, well and tower, traffic, and public safety all as set forth in the Supplement which is attached hereto and incorporated by reference. 13. Fees Related to Increased Density and Unit Count in Covered Bridges Project. With the Covered Bridges Project, there will be a substantial increase in overall unit count in Lots 1, 3 and 270 of the Plat, which were formerly designated for multi-family and senior housing. The Village Board affirms its support for full buildout of the Project, and the Developer and Village acknowledge and agree to the following changes in density and fees associated with total units, as set forth herein. a. Lot 270. Developer agreed to deed restrict Lot 270, which was expected to be developed as senior housing or multi-family, all as set forth in a recorded Deed Restriction. With commencement of Covered Bridges-Phase 1, Developer and Village reaffirm that Lot 270 shall remain subject to said restriction and shall be developed for single-family use. A copy of the Deed Restriction is included in the Supplement, which is attached hereto and incorporated by reference. The Developer hereby acknowledges that it will be required to present appropriate 6

7 land division, zoning and site plan applications, as necessary per Village ordinances and the Developer s plans for Lot 270. Development of Lot 270 will proceed on a timeline determined by market conditions. b. Units. Town Board Resolution stated as follows regarding the maximum units for Lots 1, 3 and 270: The maximum number of units on these three lots shall be 232, of which 80 or more shall be senior housing and 152 or less shall be multi-family. (If senior housing increases, multi-family units will decrease. Multifamily will never be more than 152 units.). The total units for all phases of Covered Bridges is 300, which represents an overall increase of 68 units. (Note: As of the date of this First Amendment, neither the redivision of Lot 270 nor the number of lots to be contained within Lot 270 has been determined. Therefore, there is not a unit count for Lot 270 included this First Amendment or in the fees referenced herein.) c. Associated Developer Fees. Pursuant to Village ordinances, the increase in units means that the Developer is obligated for the following: i. Fee in Lieu of Parkland: 68 additional units in 2017 results in an additional fee of $100, This fee is due and owing upon execution of this First Amendment. ii. Fee for Initial Improvement of Parkland: This fee may be paid by Developer on a phase-by-phase basis. If Covered Bridges Phase 1 is 75 multi-family units and paid in 2017, the Fee for Initial Improvement of Parkland will be $70, iii. Revised Fee Schedule. An updated fee schedule is included in the Supplement to this First Amendment, incorporated by reference and accepted by the Developer and Village. 14. Connectivity to Public Bicycle Path. This First Amendment does not relieve Developer from providing for connectivity of bicycle and pedestrian pathways within the Plat to the Village s path system. The location of bicycle and pedestrian pathwasys on the Subject Property shall be subject to review and approval by the Village Board. 15. No Assignment of Obligations and No Release of Developer Without Express Approval by Resolution of the Village. THE DEVELOPER S OBLIGATIONS SET FORTH IN THIS DEVELOPMENT AGREEMENT SHALL NOT BE ASSIGNED OR ASSUMED BY THIRD PARTIES WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF THE VILLAGE OF WINDSOR. ASSIGNMENTS SHALL NOT RELIEVE THE DEVELOPER FROM ITS OBLIGATIONS HEREUNDER UNLESS THE DEVELOPER IS EXPRESSLY RELEASED BY THE VILLAGE IN WRITING. THE VILLAGE SHALL NOT APPROVE ANY SUCH ASSIGNMENT UNTIL ADEQUATE PROVISIONS HAVE BEEN MADE TO GUARANTEE PERFORMANCE OF ANY SUCH OBLIGATION(S) BY THE ASSIGNEE, ALL AS DETERMINED IN THE SOLE REASONABLE DISCRETION OF THE VILLAGE. Developer s breach of this provision may result in Village issuance of stop work orders on construction anywhere within the Plat and/or may 7

8 subject the Developer to a claim for injunctive relief as well as compensatory damages including those for any and all costs of enforcement incurred by the Village, including attorney fees, engineering and other professional consultant fees, filing and services fees, and other costs incurred by the Village for enforcement. While this is not the Village s exclusive remedy, Developer acknowledges and expressly consents to the provisions contained in this paragraph. 16. Ratification. Except as set forth expressly herein, the Original Agreement is hereby ratified by the Developer and the Village. 17. Supplement Incorporated. The Supplement referenced herein serves as an Exhibit to this First Amendment and is incorporated by reference as if fully set forth herein. Where identified Exhibits are not attached to the recorded Supplement, copies of same shall be available as public records maintained by the Village Clerk. 8

9 IN WITNESS WHEREOF, the parties have caused this First Amednmentto be signed in Dane County, Wisconsin to be effective when executed by all parties. Executed in Dane County, Wisconsin, on this day of, 20. VILLAGE OF WINDSOR By: Robert E. Wipperfurth, Village President Attest: Christine Capstran, Village Clerk ACKNOWLEDGMENT STATE OF WISCONSIN ) )ss COUNTY OF DANE ) Personally came before me this day of, 20, the abovenamed Robert E. Wipperfurth and Christine Capstran, President and Clerk of the Village of Windsor, respectively, to me known to be the persons and officers who executed the foregoing instrument and acknowledged the same as such officers by the Village s authority. Notary Public, State of Wisconsin My Commission Expires: 9

10 IN WITNESS WHEREOF, Bear Tree Farms, Inc. has caused this First Amendment to be signed by its authorized representative, as of this day of, 20. BEAR TREE FARMS, INC., as Developer and Owner By: Steven D. Pederson, President By: Dwight E. Ziegler, Executive Vice President STATE OF WISCONSIN ) )ss. COUNTY OF DANE ) ACKNOWLEDGMENT Personally came before me this day of, 20, the abovenamed Steven D. Pederson, as President of Bear Tree Farms, Inc., and Dwight E. Ziegler, as Executive Vice President of Bear Tree Farms, Inc., to me known to be the persons who executed the foregoing instrument and acknowledged the same on behalf of such entity. Notary Public, State of Wisconsin My Commission: 10

11 IN WITNESS WHEREOF, PC Farms Holding II, LLC has caused this First Amendment to be signed by its authorized representatives, as of this day of, PC FARMS HOLDING II, LLC, as Owner By: Steven D. Pederson, Member and Authorized Representative By: Windsor Associates, Ltd., Member By Dwight E. Ziegler, President STATE OF WISCONSIN ) )ss. COUNTY OF DANE ) ACKNOWLEDGMENT Personally came before me this day of, 20, the abovenamed Steven D. Pederson, as member of PC Farms Holding II, LLC, and the abovenamed Dwight E. Zeigler, as member of PC Farms Holding II, LLC, to me known to be the persons who executed the foregoing instrument and acknowledged the same on behalf of such entity. Notary Public, State of Wisconsin My Commission: 11

12 INDEMNIFICATION BY SIGNING HEREUNDER, Steven D. Pederson and Dwight E. Ziegler, jointly and severally, do personally warrant and represent to the Village of Windsor, as follows: (1) Statz Bros., Inc. owns a portion of the Property in the Plat; (2) the Statz Property is subject to a binding purchase agreement with Bear Tree Farms, Inc.; and, (3) Statz Bros., Inc. has consented to the recording of this Development Agreement and other Village-required agreements specified herein, all as an encumbrance against the Statz Property. Furthermore, by signing hereunder, Steven D. Pederson and Dwight E. Ziegler, jointly and severally, shall and hereby do personally and fully indemnify the Village from and against any and all damages incurred, including staff time, engineering, legal and consulting fees related thereto or incurred because Bear Tree Farms, Inc. fails to acquire the Statz Property as represented, because prior liens or encumbrances on the Statz Property take priority and adversely impact the Village s rights under this Agreement and others required by the Village, and/or Bear Tree Farms, Inc. fails to develop the Statz Property as required by this Development Agreement. This personal obligation is being entered in the interest of marriage and family and shall not be assigned or released without the express approval and written consent of the Village of Windsor. Executed in Dane County, Wisconsin, on this day of, 20. Steven D. Pederson, Individually Dwight E. Ziegler, Individually STATE OF WISCONSIN ) )ss. COUNTY OF DANE ) ACKNOWLEDGMENT Personally came before me this day of, 2015, the above-named Steven D. Pederson and Dwight E. Ziegler, to me known to be the persons who executed the foregoing instrument and acknowledged the same. Notary Public, State of Wisconsin My Commission: 12

13 CONSENT OF MORTGAGEE The undersigned, Wisconsin River Bank, consents to and subordinates the liens of any mortgages on the Property to the terms and provisions of this Agreement this day of, 20. WISCONSIN RIVER BANK By: Richard T. Arneson, President STATE OF WISCONSIN ) COUNTY OF SAUK ) ) ss. On this day of, 20, before me, a Notary Public, personally appeared Richard T. Arneson, President of Wisconsin River Bank, to me known, who being by me duly sworn, did depose and say that he executed said document on behalf of Wisconsin River Bank. Notary Public, State of Wisconsin My Commission: This instrument drafted on behalf of the Village of Windsor by: Constance L. Anderson Anderson Consults, LLC PO Box 3004 Madison, WI connie@andersonconsultswi.com INCORPORATED BY REFERENCE AS IF SET FORTH IN FULL HEREIN: SUPPLEMENT TO FIRST AMENDMENT 13