CCR1996248COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #248-96
Approval of Amendment to Contract of Sale
Offer to Purchase - Thiesenhusen
BE IT RESOLVED that the Common Council of the City of Muskego
does hereby approve an Amendment to Contract of Sale to amend
Offer to Purchase dated October 9, 1996 to extend the
Acceptance Date to November 15, 1996.
BE IT FURTHER RESOLVED that the Mayor and Clerk-Treasurer are
authorized to make any other necessary technical changes in
consultation with the City Attorney.
authorized to sign the Amendment to Contract of Sale and attach
BE IT FURTHER RESOLVED that the Mayor and Clerk-Treasurer are
said Notice to the Offer to Purchase.
DATED THIS 22ND DAY OF OCTOBER , 1996
SPONSORED BY:
Mayor David L. De Angelis
This is to certify that this is a true and accurate copy Of
Resolution #248-96 which was adopted by the Common Council of the
City of Muskego.
10/96 jmb
( ) The lollowing i!cnl(s) of pmonnl property :ire included in the sale:
[ x) Otlsr: The. acceptance. date is. changed. frnm .October. .18, 1996 .to.November .15., 19.96.
2. Nolice is given tllal:
Illlycr:
Iiuycr:
Daw Signed.
This Agreement, made this - day of ,1996 by and between Boldt
Development Corporation, hereinafter called the "Developer", and the City of Muskego, a
municipal corporation of the State of Wisconsin, located in Waukesha County, hereinafter called
the "City."
WITNESSETH
WHEREAS, the Developer has submitted for approval by the City a proposal
which will permit the commercial development of the southeast comer of Janesville Road and
Parkland Drive in the City of Muskego (the "Site");
WHEREAS, as a condition of approval, the governing body of the City may
require that the Developer make and install certain improvements reasonably necessary for the
Development and further, may require dedication of public utilities with the Development, to
be conditioned upon the construction of said improvements according to municipal specifications
without cost to said municipality; and
WHEREAS, the City's Plan Commission has duly approved, contingent upon
certain other approvals, Developer's plans and specifications for such improvements, contingent
upon the execution and performance of this agreement by the Developer.
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto agree as follows:
Developer, entirely at its expense, shall:
A. TRAFFIC LIGHT:
Provide, with respect to the Site, a one time contribution to be paid upon
completion of installation in an amount not to exceed $10,375 to cover
Subdivider's equitable share of the cost for installation of traffic ("stop and go")
lights at the intersection of Janesville Road (C.T.H. "L") and Parkland Drive (the
"Intersection"). If the traffic lights are not installed within 5 years after the
effective date hereof, Developer shall be forever relieved by this obligation.
B. BIKE PATH:
Construct and pay for a bike path in the right of way on the frontage of Parkland
Drive pursuant to City approved plans and the specification letter attached hereto.
The City hereby grants Developer the right to enter upon such frontage way to
construct the bike path.
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C. DRAINAGE AND MASTER GRADING PLAN
1. Developer shall construct, install, furnish and provide facilities (including
a detention pond) as approved by the City Engineer and Public Works
Committee for storm and surface water drainage throughout the Site, as
shown on the Drainage And Master Grading Plan, all in accordance with
the plans and specifications attached hereto, made a part hereof and
marked Exhibit "B". Developer shall provide an "as built'' survey post
gradiig which contirms that Developer has completed all grading in
accordance with the Drainage And Master Grading Plan.
2. The City shall furnish to the Developer such permits or easements as may
be required in any public street or property to enter upon and install the
above described surface water drainage system therein.
3. The City contemplates that when the property adjacent to the Site to the
east is developed a detention pond will be constructed thereupon.
Developer agrees that the detention pond on the adjacent site may be tied
into the detention pond on the Site so long as Developer incurs no costs
with respect thereto & such tie-in does not adversely affect the use of the
Site by the then current owner thereof. Such tie-in right shall be more
specifically set forth in the easement referenced in Paragraph I.D.
D. FUTIJRE:
Developer wiU, at the request of the City, grant an easement across the
southernmost portion of the Site as shown on Exhibit € attached hereto to
the adjacent land owner to the east. The easement will permit the
development of a driveway across the Site so that the land to the east has
access to Parkland Drive through the Site. The City agrees that the
driveway need not be put in place until and if the future use warrants the
placement of the driveway. Specifically, the driveway will only need to
be put in place if the adjacent land is developed as something other than
an office building. AU costs of development, maintenance, and liability
for the road will be the responsibility of the developer of the adjacent
land. In consideration of said easement, the adjacent land owners will
grant a driveway easement over the adjacent land to Developer in a
location approved by the City and will pay all costs of constructing the
owner will be put in writing within one year from the date hereof
Neitherparty will require any additional compensation from the other with
respect to the granting or use of either of said easements.
City required driveway thereupon. This Agreement with the adjacent
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1. Developer shall construct, install, furnish and provide a complete system
of Erosion Control Devices or measures in specified areas of the Site, as
approved by the City Engineer and the Building Inspection Department
attached hereto as Exhibit "D" and in accordance with the plans and
specifications with Chapter 29 of the City's Municipal Code.
2. Install silt fencing in conformance with the approved plans prior to the
grading and construction work. Such fences shall be maintained by the
Developer until such time as turf cover is established in the Site. No
grading shall occur without a two (2) day notice to the City.
3. Mulching and seeding of all disturbed areas to comply with Chapter 29.
4. Developer is responsible for obtaining Erosion Control Permits for the site
for controlling erosion on the site and each individual lot owner is
responsible for obtaining a separate erosion control permit at the time any
vegetation is disturbed and are responsible for controlling erosion on their
lot.
5. Ten Thousand Dollars ($lO,OOO.Oo) from the Letter of Credit (under
Section XIV), shall be retained until adequate vegetation is established as
determined by the Building Inspection Department. A reduction of fifty
percent (50%) of the Ten Thousand Dollars (%lO,OOO.OO) portion of the
Letter of Credit is allowable upon verification of fifty percent (50%) of
disturbed areas are vegetated. If, upon a written notification by the
Building Inspection Department of non-compliance of Chapter 29, the
terms are not corrected within five (5) days, the City may utilize the Ten
Thousand Dollars ($lO,OOO.Oo) portion of the Letter of Credit to correct
the terms of nonconformance. From time to time, additional funds may
be required in the Developer's Deposit to cover the cost of maintenance
as deemed appropriate by the Department.
L SECTIO II.
The improvements set forth in Sections I.B., I.C. and I.E. above shall be
completed by the Developer within twelve (12) months from the signing of this Agreement.
If the improvements set forth in Section I.B., I.C. and I.E. have not been
completed within twelve (12) months of the date of this Agreement, the Developer shall extend
the Letter of Credit set forth in Section XIV hereof in a form acceptable to the City until such
time as all are completed. If the City receives notice of the intention to terminate the Letter of
Credit prior to completion of the improvements, such notice shall be considered a failure to
complete the improvements in accordance with this Agreement and shall entitle the City to
immediately draw against the Letter of Credit.
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The Developer shall submit to the City, an application for a Land Disturbing
Permit and an Erosion Control Plan in accordance with the requirements of Section 29.06 of the
City’s Erosion Control Ordinance (Ord. #560). No construction or grading can begin until said
permit is received from the City.
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Developer shall pay and reimburse the City in advance of the signing of this
Agreement, in accordance with Section 18.14 of the City’s Land Division Ordinance 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 I, including without limitation by reason of designs,
plans and specifications; supervision, inspection to insure that construction is in compliance with
the applicable plans, specifications, regulations and ordinances; legal, administrative and fiscal
work undertaken to assure and implement such compliance.
: UIREMENTS
The Developer shall:
A.
B.
C.
D.
Easements: Provide any easements on Developer’s land deemed necessary
by the City Engineers prior to the issuance of building permits, provided
such easements are along lot lines or to the rear of the lots and are not
any more restrictive to the building of commercial facilities beyond the
applicable sideyard and offset distances required by the zoning for such
lots.
Manner of Performance: Cause all construction called for by this
Agreement to be carried out and performed in a good and workmanlike
manner.
Survey Monuments: Properly place and install any lot, block or other
monumentS required by State Statute or City Ordinance.
Sieht Distances: Restricts construction so that no structure of any kind
which exceeds a height of 2 112 feet above the center of the intersection
shall be permitted in the vision setback area in conformance with Section
17:05.02(2) of the Zoning Ordinance.
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E. m: Submit to the City valid copies of all agency permits including
the Wisconsin D.N.R. and U.S. Army Corps of Engineers before
construction commences and prior to any preconstruction meeting.
The Developer shall guarantee the surface water drainage improvements and all
other improvements described in Section I hereof against defects due to faulty materials or
workmanship provided that such defects appear within a period of one (1) year from the date
of dedication and 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 VII. GENERAL INDEMNITY
In addition to, and not to the exclusion or prejudice of, any provision 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. The
Developer shall also name as Additional Insured on its general liability insurance the City, its
officers, agents, and employees, and any independent contractors hired by the City to perform
service as to this Development and give the City evidence of the same upon request by the City.
SECTION WI . AGRE EMENT 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 any purchaser of the Site or any interest
therein. Further, that the sale of the Site shall not release the Developer from completing the
work on the attached Exhibits.
SECTION IX. DEDICATION
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 bike path and storm sewer connection located in the
Parkland Drive and Janesville Road Frontage Ways, respectively, to the City, its successors and
assigns, forever, free and clear of all encumbrances whatever together with and including,
without limitation because of enumeration, any and all land, buildings, structures, mains,
conduits, pipe 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 said
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improvements, except surface water drainage facilities, after the first lift of bituminous concrete
pavement has ‘bein installed and approved by the City Engineers and other agencies as
applicable.
. SECTION X. ACCEPTANCE OF WORK AND DEDICATION -
As and when the Developer shall have completed the bike path and storm sewer
connector improvements herein required, and shall dedicate the same to the City as set forth
herein, the same shall be accepted by the City if said improvement shall have been completed
as required by this Agreement and as required by applicable City ordinances and other applicable
law and approved by the City Engineer, City Finance Committee and Common Council.
1. The City shall, within its authority, 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; and the City shall cooperate with the Developer in
obtaining similar permits, resolutions and documents as may be necessary from other authorities
having jurisdiction in the premises.
2. The City shall, as a condition of the Developer executing this Agreement,
make available to the Developer or their nominee successors or assigns, building permits for the
construction of commercial buildings subject to the provision of Section XII.
A. Buildine Permits. It is expressly understood and agreed that no building
permits for any buildings shall be issued until the City has determined that any DNR and ACOE
permits are presented to the City, all past due balances in the Developer’s Deposit have been
satisfied as reasonably determined by the Planning Director, pre-above surface grade
construction erosion control maures have been complied with, and that this document has been
executed. Grading shall comply with the Master Grading Plan (See I.C. 1).
B. Occu~ancv Permits. It is expressly understood and agreed that no Occupancy
Permits for any buildings shall be issued until the City’s Engineers have determined that this
Agreement has been complied with in all material respects.
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
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shall be performed and carried out in strict accordance with and subject to the provisions of said
ordinances. Any fine arising from violations to any City Codes and Ordinances relating to this
Development or remedial work required by the City may be deducted from the Letter or Credit.
SECTION XIV. FINANCIAL GUARANTEE
Prior to the execution of this Agreement by the City, the Developer shall file with
the City a Letter of Credit setting forth terms and conditions approved by the City Attorney
(including ninety days notice to the City prior to termination or expiration of the original letter
of credit and all renewals thereof) in the amount of $73,875.00 as a guarantee that the required
plans, improvements, approvals, and/or payments for Sections I.A., I.B., I.C. and I.E. will be
completed by the Developer and its subcontractors no later than one (1) year from signing of the
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 Development are satisfied.
City will give Developer at least 15 days prior written notice via Certified Mail
(at Developer’s cost) of a material defect in construction of the improvements in accordance with
this Agreement before drawing on said Letter of Credit provided that the City can do so and still
have a reasonable time to draw on the Letter of Credit.
SECTION XV. PARTIES BOUND
1. Developer or his assignees shall be bound by the terns of this Agreement or
any part herein as it applies to the Site.
2. Approval by the City shall not be deemed a waiver as the ultimate
responsibility for the proper design and installation of streets improvements, drive and parking
areas, water facilities, drainage facilities, ditches, landscaping and all other improvements shall
be the Developers. 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 development and related
infrastructure.
3. The City and the Developer, by mutual consent to the extent of their authority
to do so, hereby declare that this Agreement and attached Exhibits supersede and replace any
and all prior references to the proposed improvements on, under, or over the lands and/or
parcels covered by this Agreement. This paragraph shall be recorded in the Notice of
Developer’s Agreement to be filed at Waukesha County Register of Deeds.
Developer shall not assign this Agreement without the written consent of the City,
which consent shall not be unreasonably withheld.
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SECTION XW. AMENDMENTS
The City and the Developer, by mutual consent, may amend this Agreement, by
written agreement between the City and the Developer.
IN WITNESS HEREOF, Developer and City have caused this Agreement to be
signed by their appropriate officers and their seals to be hereunto affixed in duplicate original
counterparts on the date and year first written above.
Developer:
Botdt Development Corporation
By:
Mark F. Irgens, President
By:
Kristine K. O’Meara, Secretary
City of Muskego:
By:
David L. DeAngelis, Mayor
By:
Jean Marenda, City Clerk
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The undersigned, sole owner of the adjacent property described in Section I.D.,
joins in this Agreement solely for the purpose of indicating its agreement with the provisions of # Section I.C.3. and Section I.D.
DIVERSIFIED DEVELOPMENT
GROUP
By:
Robert W. Klenz
By:
Michael K. Plumley
BY: HALE PARK LUMBER AND
MILLWORK, INC.
By:
Russell Kilps
STATE OF WISCONSIN )
COUNTY OF )
) ss.
PERSONALLY came before me this - day of 9 199-9
to me known to be the persons who executed the foregoing
instrument and acknowledged the same.
Notary Public, State of Wisconsin
My Commission expires
STATE OF WISCONSIN )
COUNTY OF )
) ss.
PERSONALLY came before me this - day of f 1992
the above named David L. DeAngelis, Mayor, and Jean Marenda, City Clerk, of the above
named municipal corporation City of Muskego, to me known to be the persons who executed
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the foregoing instrument, and to me known to be such Mayor and City Clerk 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 from their meeting on the - day of , 199-.
Notary Public, State of Wisconsin
My Commission expires
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