CCR2009112-Walmart-Attachment
WAL-MART REAL ESTATE BUSINESS TRUST - CITY OF MUSKEGO
DEVELOPER'S AGREEMENT
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This Agreement, made this ____ day of ______, 2009 by and between Wal-Mart Real Estate Business
Trust,. a Delaware statutory trust (the "Developer") and the City of Muskego, a municipal corporation of
the State of Wisconsin, located in Waukesha County, hereinafter called the "City".
W I T N E S S E T H
WHEREAS, The Plan Commission has approved the Business Site and Operation Plan under adopted
Resolutions #PC 045-2008 and #PC 049-2009 for Wal-Mart (the “Development”), a part of the lands
described as Tax Key Number 2169.999.003, and
WHEREAS, The Developer is required to make and install certain public improvements (“Improvements”)
reasonably necessary for the Development, conditioned upon the construction of said Improvements
according to approved plans, and applicable City ordinances and written municipal specifications
universally applied as of the date of this Agreement, without cost to City; and
WHEREAS, The City Engineer and the City's Public Utilities Committee have duly approved, contingent
on certain other approvals, Developer's plans and specifications for the Improvements, and the City's
Plan Commission has duly approved the Development contingent in part upon the execution and
performance of this Agreement by the Developer.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree
as follows:
SECTION I : DEVELOPMENT
1. LAND USE. The Development as approved by Plan Commission Resolutions #PC 045-2008 and
#PC 049-2009, consists of the construction of a Wal-Mart Supercenter along with the features per the
referenced resolution approvals (landscaping, lighting, screening, architecture, materials, etc.).
2. PHASING. Developer and City agree that this Agreement is for the installation of public and private
Improvements consisting of a looped water main constituting a complete system of water supply and
distribution to the Development in one phase per the documents approved by the Plan Commission
under Resolutions #PC 045-2008 and #PC 049-2009.
SECTION II : IMPROVEMENTS:
City shall, within its jurisdiction, furnish the Developer such permits or easements as may be required to
enter upon and install the following described Improvements.
Developer shall cause the construction of all Improvements called for by this Agreement to be carried out
and performed in a good and workmanlike manner. Developer shall submit to the City valid copies of all
agency permits including the Wisconsin Department of Commerce private plumbing permit and the
Wisconsin Department of Natural Resources watermain extension permit before construction
commences and prior to any preconstruction meeting.
Developer, entirely at its expense, shall:
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1. WATER MAIN:
a) Construct, install, furnish, and provide without cost to City, the Improvements which constitute a
complete system of water supply and distribution, throughout the entire Development, as
approved by the City Engineer or his designee and Public Utilities Committee on July 20, 2009
and in accordance with the plans and specifications on file in the Community Development
Department.
b) Apply for all necessary permits to use water from hydrants for construction permits, as may be
required by applicable City ordinance.
c) Complete to the satisfaction of the City engineer or his designee any punch list items concerning
the Improvements prior to connection of any building to the water system.
2. EROSION CONTROL MEASURES:
a) Submit to the City, an application for a Land Disturbing Permit in accordance with the Erosion
Control Plan as approved in accordance with the requirements of Section 29.06 of the City's
Erosion Control Ordinance by the City Engineer or his designee on and in accordance with the
plans and specifications on file in the Community Development Department.
b) Construct, install, furnish and provide without cost to City, a complete system of Erosion Control
Devices or measures necessary for the construction of the Improvements, on and off-site, in
accordance with the Erosion Control Plan as approved by the City Engineer or his designee and
in accordance with the plans and specifications on file in the Community Development
Department. No construction or grading can begin until the City issues said permit, and no
grading shall occur without a two (2) day notice to the City.
c) Install silt fencing in conformance with the approved Erosion Control Plan prior to the grading and
construction work. Such fences shall be maintained by the Developer until such time as
vegetative cover is established in the Development. Install mulching and seeding of all disturbed
areas to comply with Municipal Code Chapter 29.
SECTION III : TIME OF COMPLETION OF IMPROVEMENTS
The Improvements set forth in Section II shall be completed by the Developer within one (1) year from
signing of this Agreement by September 30, 2010 or prior to occupancy of the Wal-Mart building,
whichever comes first.
SECTION IV : AS-BUILT CONSTRUCTION PLANS
Developer authorizes the City to prepare all necessary as-built construction plans for the Improvements
to be dedicated to the City. Developer agrees to reimburse City for all costs incurred in the preparation
and distribution of as-built data, including collection of data, revisions to construction documents and
upload of data to City’s Geographic Information System, and City may utilize Developer’s Developers
Deposit account for all charges related hereto.
Developer authorizes the City to convert digital files submitted by Developer pursuant to Section
18.32(3)(i) of the Municipal Code of the City of Muskego and Common Council Resolution No. 196-2002
to any format deemed necessary by City. Developer agrees to reimburse City for all costs incurred in
said conversions and City may utilize Developer’s Developers Deposit account for all charges related
hereto.
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SECTION V : DEDICATION AND ACCEPTANCE OF IMPROVEMENTS
Subject to all of the other provisions of this Agreement, Developer shall, without charge to the City, upon
completion of the above described Improvements, unconditionally give, grant, convey and fully dedicate
the water main facilities to the City, its successors and assigns, forever, free and clear of all
encumbrances (except those encumbrances that may be acceptable to the City) whatever, together with
and including, without limitation because of enumeration, any and all land, structures, mains, conduits,
pipes lines, plant, machinery, equipment, appurtenances and hereditaments which may in any way be a
part of or pertain to such Improvements and together with any and all necessary easements for access
thereto. The City will be receptive to the dedications of Improvements, except private storm water
drainage facilities, after the water main has been installed, when all said utilities have been completed
and approved by the City Engineer and other agencies as applicable.
Dedication shall not constitute acceptance of any improvement by the City. The City shall not accept the
dedication of any Improvements which do not fully comply with approved plans, and applicable City
ordinances and written municipal specifications universally applied as of the date of this Agreement.
Claims of financial hardship by the Developer shall not be considered a reason for the City to accept
substandard materials or work.
The City shall have the right to connect to or integrate other utility facilities with the Improvements
provided herein without payment, award, or consent required of the Developer.
At such time as all Improvements are completed and acceptable as called for under this Agreement, and
all approvals have been received from regulatory agencies, such Improvements shall be accepted by the
City by separate Resolution. Acceptance shall not occur until after the items listed below have taken
place OR if the City Engineer deems other items relating to the construction of the Improvements
necessary to comply with approved plans, and applicable City ordinances and written municipal
specifications universally applied as of the date of this Agreement:
1. The Improvements consisting of water facilities required to serve the Development are connected
with an operational system.
SECTION VI: INSPECTION AND ADMINISTRATION FEES
Developer shall pay and reimburse the City in advance of the signing of the Agreement, in accordance
with Section 18.14 of the Land Division Ordinance and Ordinance No. 909, and at times specified herein,
but in any event, no later than thirty (30) days after billing, all fees, expenses and disbursements which
shall be incurred by the City prior to and following the date hereof in connection with or relative to the
construction, installation, dedication and acceptance of the Improvements covered by Section II,
including without limitation by reason of enumeration, design, engineering, preparing, checking and
review of designs, plans and specifications, supervision, inspection to insure that construction is in
compliance with the applicable plans, specifications, regulations and ordinances; and legal,
administrative and fiscal work undertaken to assure and implement such compliance. Failure to pay or
reimburse the City in a timely manner may cause the City to cease all construction inspections until such
time as all anticipated or outstanding inspection and administration fees have been satisfied.
SECTION VII: MISCELLANEOUS REQUIREMENTS
The Developer shall:
1. Easements: Provide any easements to access the Improvements on Developer's land deemed
necessary by the City Engineer or his designee prior to occupancy, provided that the City releases
any unnecessary easements.
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2. Manner of Performance: Cause all construction of the Improvements called for by this Agreement to
be carried out and performed in a good and workmanlike manner.
SECTION VIII: GENERAL CONDITIONS AND REGULATIONS
Municipal Codes and Ordinances: All the provisions of the City's ordinances are incorporated herein by
reference, and all such provisions shall bind the parties hereto and be a part of this Agreement as fully as
if set forth at length herein. This Agreement and all work and improvements required hereunder shall be
performed and carried out in strict accordance with and subject to the provisions of said ordinances.
SECTION IX: GUARANTEES
The Developer shall guarantee the water main Improvements described in Section II, against defects due
to faulty materials or workmanship provided that such defects appear within a period of one (1) year from
the date of acceptance. The Developer shall pay for any damages to City property resulting from such
faulty materials or workmanship. This guarantee shall not be a bar to any action the City might have for
negligent workmanship or materials. Wisconsin law on negligence shall govern such situation.
SECTION X : GENERAL INDEMNITY
In addition to, and not to the exclusion or prejudice of, any provisions of this Agreement or documents
incorporated herein by reference, Developer shall indemnify and save harmless, and agrees to accept
tender of defense and to defend and pay any and all reasonable legal, accounting, consulting,
engineering and other expenses relating to the defense of any claim asserted or imposed upon the City
its officers, agents, and employees, and independent contractors growing out of this Agreement as
stated above by any party or parties except those claims asserted by Developer against City, its officers,
agents and employees in an effort to enforce this Agreement. The Developer shall also name as
additional insured on its general liability insurance the City, its officers, agents, and employees, relative
to the Improvements and give the City evidence of the same upon request by the City provided that, as
long as Developer maintains assets worth not less than $100 million, the Developer may self-insure all
obligations under this Section.
a) Hold Harmless. The Developer shall indemnify and hold harmless the City, its officers, agents,
independent contractors, and employees from and against all claims, damages, losses, and
expenses, including attorney’s fees, arising out of or resulting from the construction of the
Improvements, provided that any such claim, damage, loss, or expense (i) is attributable to bodily
injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than
the Improvements themselves) including the loss of use resulting therefrom, and (ii) is caused in
whole or in part by any negligent act or omission of the Developer, its officers, agents,
independent contractors, and employees or anyone for whose acts any of them may be made
liable, regardless of whether or not it is caused in part by a party indemnified herein. In any and
all claims against the City, its officers, agents, independent contractors, and employees by the
Developer, its officers, agents, independent contractors, employees, and anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be held liable, the
indemnification obligation under this section shall not be limited in any way by any limitation on
the amount or type of damages, compensation, or benefits payable by or for the Developer, its
officers, agents, independent contractors, employees under Workers’ Compensation Acts,
disability benefit acts, or other employee benefit acts.
b) Personal Liability of Public Officials. In carrying out any of the provisions of this Agreement or in
exercising any power or authority granted to them thereby, there shall be no personal liability of
the City officers, agents, independent contractors, or employees, it being expressly understood
and agreed that in such matters they act as agents and representatives of the City.
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c) Indemnification for Environmental Contamination. The Developer shall indemnify, defend, and
hold City and its officers, agents, independent contractors, and employees harmless from any
claims, judgments, damages, penalties, fines, costs, or loss (including reasonable fees for
attorneys, consultants, and experts) that arise as a result of the presence or suspected presence
in or on the real property dedicated or conveyed to the City by, under, pursuant to, or in
connection with this Agreement. Without limiting the generality of the foregoing, the
indemnification by the Developer shall include costs incurred in connection with any site
investigation or any remedial, removal, or restoration work required by any local, State, or Federal
agencies because of the presence or suspected presence of toxic or hazardous substances on or
under the real property, whether in or on the soil, groundwater, air, or any other receptor. The
City agrees that it will immediately notify Developer of the discovery of any contamination or of
any facts or circumstances that reasonably indicate that such contamination may exist in or on
the real property. Upon receipt of notice from the City or other entities, Developer shall investigate
and rectify conditions which indicate the presence of or suspected presence of contamination on
the subject property as identified by local, state, or federal agencies in order to comply with
applicable laws.
d) Developer shall, at its expense, obtain and carry comprehensive general liability insurance with
combined single limits of at least One Million Dollars ($1,000,000.00) for one person and at least
Five Million Dollars ($5,000,000.00) per occurrence, and at least One Million Dollars
($1,000,000.00) property damage (or such higher amounts as the City shall from time to time
deem reasonable). Such policy shall cover both Developer and the City and its agents,
employees, and officials, and all insurers shall agree not to cancel or change the same without at
least thirty (30) days written notice to the City. A certificate of Developer’s insurance shall be
furnished to the City upon execution of this Agreement. Each such policy shall provide that no
act or default of any person other than the City or its agents shall render the policy void as to the
City or effect the City’s right to recover thereon. Notwithstanding the foregoing, the Developer
may self insure all obligations under this Section, as long as Developer maintains assets worth
not less than $100 million.
SECTION XI: AGREEMENT FOR BENEFIT OF PURCHASERS:
The Developer shall agree that in addition to the City's rights herein, the provisions of this Agreement
shall be for the benefit of the purchaser of any lot in the Development. Further, that the sale of any lot or
parcel shall not release the Developer from completing the Improvements provided for under this
Agreement, by applicable Ordinances and as set forth in the plans and specifications on file in the
Community Development Department.
SECTION XII : CONSTRUCTION PERMITS, ETC.
The City shall, within its authority:
1. Issue such permits, adopt such resolutions, and execute such documents as may be necessary to
permit the Developer to construct the Improvements in accordance with the plans and specifications
called for by this Agreement, upon Developer's compliance with any deposit provisions or other
requirements of the applicable ordinances or regulations.
2. Furnish the Developer such permits or easements as may be required to enter upon and install the
previous described Improvements in any public street or public property.
3. Cooperate with the Developer in obtaining similar permits, resolutions and documents as may be
necessary from other authorities having jurisdiction in the premises.
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SECTION XIII : OCCUPANCY PERMITS:
It is expressly understood and agreed that no occupancy permit shall be issued until the City Engineer or
his designee has determined that:
1. A letter of credit remains on file for the remaining Improvements.
2. The Resolution of the dedication and acceptance of Improvements is approved by the City.
3. All parameters of Resolutions #PC 045-2008 and #PC 049-2009 have been met to the
satisfaction of the Community Development Director.
4. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by the
Community Development Director.
SECTION XIV : FINANCIAL GUARANTEES:
1. LETTER OF CREDIT: Concurrent with the execution of this Agreement by the City, the Developer
shall file with the City a Letter of Credit, in the City Attorney approved form, setting forth terms and
conditions in the amount of $276,600262,800, which amount shall be approximately 120% of the
estimated cost of the Improvements, as a guarantee that the required plans and Improvements will
be completed by the Developer and its subcontractors no later than September 30, 2010 within one
(1) year from signing of this Agreement, except if another date is provided within this Agreement, and
as a further guarantee that all obligations to the subcontractors for work on the Improvements are
satisfied. Instead of a Letter of Credit, Developer may deposit cash, a certified check or the
equivalent in the same amount pursuant to the same terms and conditions as set forth in this
Agreement.
a) Invoices: Invoices documenting the Improvements shall be provided to the City.
b) Reduction Of Letter Of Credit Balance: The Developer shall provide City Engineer or his designee
with a written request accompanied by: invoices for work completed for which a release is being
requested, breakdown of invoices in the format of the Public Improvement Cost Breakdown form,
and signed original lien waivers for all work which is subject of the release request. The City
Engineer or his designee will process all requests in accordance with policies adopted by the
Finance Committee, as may be amended from time to time.
2. DEVELOPER'S DEPOSIT: The Developer shall maintain a $10,000.00 balance in the Developer's
Deposit. No reduction of the Letter of Credit balance shall be entertained until the Developer's
Deposit is satisfied unless otherwise authorized by the Common Council following a recommendation
of the Finance Committee.
3. PRESERVATION OF ASSESSMENT RIGHTS:
a) Waiver of Notice. In addition to other remedies provided to the City by this Agreement, the City
shall have the right, without notice or hearing, to impose special assessments for any amount to
which the City is entitled by virtue of this Agreement relating to the Improvements. This provision
constitutes the Developer’s consent to the installation by the City of all Improvements required by
this Agreement and constitutes the Developer’s waiver of notice and consent to all special
assessment proceedings as described in Section 66.0703(7)(b), Wis. Statutes.
b) Remedies not exclusive. The City may use any other remedies available to it under the
Agreement or in law or equity in addition to, or in lieu of, the remedies provided herein.
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SECTION XV: PREVAILING WAGE RATES AND HOURS OF LABOR
If any aspect of the construction of the Improvements involves a project of public works that is regulated
by Wisconsin Statutes Section 66.0903 or 66.0904, then: (1) The Developer shall pay wage rates not
less than the prevailing hourly wage rate as described and regulated pursuant to such statutes and
related laws; and (2) The Developer shall comply with the prevailing hours of labor as described and
regulated pursuant to such statutes and related laws; and (3) The Developer shall fully comply with the
reporting obligations, and all other requirements of such laws; and (4) The Developer shall ensure that
the Developer’s subcontractors also fully comply with such laws. The Developer’s General Indemnity
obligation of this Agreement shall apply to any claim that alleges that work contemplated by this
Agreement is being done, or has been done, in violation of prevailing wage rates, prevailing hours of
labor, or Wisconsin Statutes Section 66.0903 or 66.0904, for any work arising out of this agreement.
SECTION XVI : PARTIES BOUND:
Developer or its assignees shall be bound by the terms of this Agreement or any part herein as it applies
to the Improvements. Approval by the City shall not be deemed a waiver as the ultimate responsibility for
the proper design and installation of the Improvements. The fact that the City or its engineers, or its
attorney, or its staff may approve a specific project shall not constitute a waiver, or relieve the Developer
from ultimate responsibility for the design, performance, and function of the Improvements.
SECTION XVII : AMENDMENTS AND ASSIGNMENT:
Developer shall not assign this Agreement without the written consent of the City, other than to a party
related to Developer. The City and the Developer, by mutual consent, may amend this Agreement, by
written agreement between the City and the Developer.
SECTION XVIII : NOTICES AND CORRESPONDENCE
Unless otherwise stated in this Agreement, the delivery of all notices and correspondence shall only be
effective upon being delivered personally or sent by prepaid United States Postal Service certified mail
with return receipt requested, to all parties as follows:
To City:
Community Development Department
City of Muskego
POB 749
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
(262) 679-4136
(262) 679-5614 facsimile
To Developer:
Wal-Mart Real Estate Business Trust
Attn: Legal Department
2001 S.E. 10th Street
Bentonville, AR 72716-0550
All notices shall be considered to have been delivered at the time such notices are personally delivered
to each party, or three (3) days after the date of postmark on any prepaid certified letter.
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Parties to this Agreement shall give fifteen (15) days notice of any change of mailing address, telephone
or facsimile number, or electronic mail address. Failure to provide said notice may constitute a default by
the party.
SECTION XIX : PARTIES TO THE AGREEMENT
IN WITNESS HEREOF, Developer has caused this Agreement to be signed by its appropriate officers
and their seals to be hereunto affixed in duplicate original counterparts on the date and year first written
above.
WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware statutory trust
By: _______________________________
Its ____________________________
STATE OF ARKANSAS )
SS
BENTO COUNTY )
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PERSONALLY came before me this __ day of _____, 2009, _____________, as ____________ of
Wal-Mart Real Estate Business Trust, to me known to be the person who executed the foregoing
instrument and acknowledged the same.
Notary Public-State of Arkansas
My Commission Expires
IN WITNESS HEREOF, City has caused this Agreement to be signed by its appropriate officers and their
seals to be hereunto affixed in duplicate original counterparts on the date and year first written above.
B. CITY OF MUSKEGO:
BY:
John R Johnson, Mayor
BY:
Janice Moyer, City Clerk-Treasurer
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STATE OF WISCONSIN )
SS
WAUKESHA COUNTY )
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PERSONALLY came before me this __ day of _____, 2009, the above named John R Johnson, Mayor,
and Janice Moyer, City Clerk-Treasurer of the City of Muskego, to me known to be the persons executed
the foregoing instrument, and to me known to be such Mayor and City Clerk-Treasurer of said municipal
corporation, and acknowledged that they executed the foregoing instrument as such officers as the deed
of said municipal corporation by its authority and pursuant to the authorization by the Common Council
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from their meeting on the __ day of _____, 2009.
Notary Public-State of Wisconsin
My Commission Expires
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Developer's Agreement for Wal-Mart,
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Inc., Muskego, Wisconsin, as entered into on the __ day of _____, 2009, by and between Wal-Mart
Real Estate Business Trust and the City Of Muskego, pursuant to the authorization by the Common
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Council from their meeting on the __ day of _____, 2009.
BY THE COMMON COUNCIL
________________________
Janice Moyer, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
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This __ day of _____, 2009.
My commission expires
This instrument drafted by Jeff Muenkel, Community Development Director
City of Muskego PO Box 0749 Muskego, WI 53150-0749
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