CCR1997118COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #118-97
AMENDED
DEVELOPER'S AGREEMENT AND LETTER OF CREDIT
APPROVAL OF CERTIFIED SURVEY MAP,
(Dilworth/Berg)
WHEREAS, a Certified Survey Map was submitted on February 21,
the SW 1/4 of Section 9 for Michael H. Dilworth on Racine Avenue;
1997 for a two-lot land division in the SE 1/4 of Section 8 and
and
WHEREAS, the Plan Commission recommended approval of the
Department, City Engineers, and payment of all applicable fees in
Certified Survey Map subject to approval of the Planning
Section 18.14(3) of the Land Division Ordinance; and
WHEREAS, the Developer's Agreement and Letter of Credit for
Thomas J. and Cheryl A. Berg have been received, as attached, and
the Finance Committee has recommended approval.
NOW, THEREFORE, BE IT RESOLVED that the Common Council of the
City of Muskego, upon the recommendation of the Plan Commission,
does hereby approve the Certified Survey Map for a two-lot land
division in the SE 1/4 of Section 8 and the SW 1/4 of Section 9
all fees as provided in Section 18.14 of the Land Division
for Michael H. Dilworth on Racine Avenue subject to receipt of
Ordinance and any special assessments which may be due.
BE IT FURTHER RESOLVED that the attached Developer's Agreement,
as amended, and attached Letter of Credit, are hereby approved
subject to approval of the City Attorney and City Engineer and
verification of the dollar amount for erosion control, all of
said approvals to be obtained within thirty (30) days of the date
of approval of this Resolution or the same will be null and void.
BE IT FURTHER RESOLVED that the Mayor and Clerk-Treasurer are
hereby authorized to sign the necessary documents in the name of
the City.
DATED THIS 27th DAY OF MAY , 1997.
SPONSORED BY:
FINANCE COMMITTEE
Ald. Domonic D'Acquisto
Ald. David J. Sanders
Ald. Nancy C. Salentine
This is
City of
Resolut
5/97 jmb
ion #118-97 which was adopted by the Common Council of the
to certify that this is a true and accurate copy of
Muskeao.
CORRECTED
COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #118-97
APPROVAL OF CERTIFIED SURVEY MAP,
DEVELOPER'S AGREEMENT AND LETTER OF CREDIT
(Dilworth/Berg)
WHEREAS, a Certified Survey Map was submitted on February 21,
the SW 1/4 of Section 9 for Michael H. Di
1997 for a two-lot land division in the S
and
WHEREAS, the Plan Commission recommended approval of the
Certified Survey Map subject to approval of the Planning
Department, City Engineers, and payment o
Section 18.14(3) of the Land Division Ordinance; and
WHEREAS, the Developer's Agreement and Le
Thomas J. and Cheryl A. Berg have been re
the Finance Committee has recommended approval.
NOW, THEREFORE, BE IT RESOLVED that the C
City of Muskego, upon the recommendation
does hereby approve the Certified Survey
division in the SE 1/4 of Section 8 and
all fees as provided in Section 18.14 of
for Michael H. Dilworth on Racine Avenue
Ordinance and any special assessments wh
BE IT FURTHER RESOLVED that the Develope
of Credit, as attached, are hereby app
of the City Attorney and City Engineer
be obtained within thirty (30) days of
this Resolution or the same will be ndll and void.
BE IT FURTHER RESOLVED that the May, 04 and Clerk-Treasurer are
hereby authorized to sign the necessary documents in the name of
the City. /
DATED THIS DAY OF / , 1997.
I
SPONSORED BY:
FINANCE COMMITTEE
Ald. Domonic D'Acquisto
Ald. David J. Sanders
Ald. Nancy C. Salentine
This is to certify that this is a true and accurate copy of
City of Muskego.
Resolution #118-97 which was adopted by the Common Council of the
Clerk-Treasurer
5/97 jmb
Muluvoqo Ofice
301 N. Rachcrw St.
Mulimgo, W531494223
P.O. Box223
lax: 1414) 363-6515
(414) 363600
W230 S9125 Ckvk St
Big Bend Ofie
P.O. Box 220
BkBend, W53103-0220
fa: 1414) 662-2418
1414) 662-3561
07 St821 Hy. 83
Gmee ofie
W236 S7050 Big Bend Dr.
Big Ed. WI 53 1034250
P.0. Box 250
verm ofice
(414) 662-2727
[ax: (4141 6624755
Rl"er"lelu Cmnr ofie
827 S. RochcrrerSr.
Suite 104
Mukmgo, W753149-1653
(414) 363-6400
fa: 14141 363-6405
P 0. Bar 44
Murkp, Wl53150-0044
(414) 422.92M1
fa: 1414) 422-9999
In rhc Villogc M&qh
Ear Troy Ofie
3238 W. hLvn St.
P.O. Bor I73
rTq. WI531200173
: (4141 64247W
CITIZENS BANK OF MUKWONAGO
ESTABLISHED 1892
IRREVOCABLE STANDBY LETTER OF CREDIT
CREDIT NO: AMOUNT:
DATE :
Applicant:
Beneficiary: City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150
Dear Sirs:
We hereby issue this irrevocable documentary credit in your
drawn on Citizens Bank of Mukwonago. Each draft accompanying
favor which is available by beneficiary's draft(s) at sight
documents must state Drawn Under Citizens Bank of Mukwonago
Documentary Credit No.
The Standby Credit is to provide a guarantee to the City Of
Muskego for the performance of Thomas 3. and Cheryl A. Berg's
obligations under that certain agreement dated
between the City of Muskego and applicant.
qEBFTS ARE TO BE ACCOMPANIED BY:
A statement signed by the Mayor of the City of Muskego stating
that Thomas J. and Cheryl A, Berg have failed to complete the
Agreement. Said statement shall set forth the estimated amount
construction of subdivision improvements in accordance with said
necessary for the City of Muskego to complete such improvements.
SPECIAL CONDITIONS:
This Standby Credit will terminate on ,
provided, however, the Citizens Bank of Mukwonago shall give
written notice to the beneficiary of its intention to terminate
this Standby Credit at 90 days prior to
After the date, this Letter of Credit can only terminate upon 90
days written notice to the beneficiary.
PAGE 02, An integral part of Standby Credit No.
It is hereby agreed by all parties hereto that the reference to
"Agreement" is for identification purposes only and such reference
Mukwonago to inquire into its term and obligations.
shall not be construed in any manner to require Citizens Bank of
We engage with you that drafts drawn under and in compliance with
the terms of this credit will be duly honored if presented on or
before the expiration date. This original Standby Credit must be
submitted to us together with any drawings hereunder for our
endorsement of any payments effected by us and/or for
cancellations.
Very truly yours,
CITIZENS BANK OF MUKWONAGO
I Senior Vice President
This is for informational purposes only. This is in no way a
commitment by the Citizens Bank of Mukwonago.
0 DEVELOPER’S AGREEMENT
FINAL DRAFT
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This Agreement, made this - day of , 1997 by and between Thomas
J. Berg and Cheryl A. Berg, hereider 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 commercial development (the “Development”) on vacant property located on the east side of
Racine Avenue, north of the intersection with Janesville Road, in the City of Muskego (the “Site”)
shown as Parcel 2 on the survey attached as Exhibit A:
WHEREAS, as a condition of approval, the governing body of the City may require the
Developer to make and install certain improvements reasonably necessary for the Development
according to municipal specifications without cost to the City; 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:
mCTION I. IMPROVEMENTS
Developer, entirely at its expense, shall:
A. STREET LIGHT:
1 Install one street light at the entrance/exit point to the Development. The
entrancdorit tight shall be the same style and design as the Development parking lot
lights. However, the size and height of the entrance/exit light shall be determined by
the City.
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2.
B.
3.
4.
0 5.
C.
1,
2.
Prior to the issuance of a building permit for building 2 of the project, moneys shall
be set aside in a separate Developer’s Deposit to cover the cost of acquisition and
installation of street lighting along the project’s Racine Avenue (C.T.H. “Y)
frontage. If subject street lighting is acquired and installed by the City prior to the
issuance of a building permit for building 2, the City shall seek reimbursement for all
cost associated with subject acquisition and installation attributable to subject Racine
Avenue (C.T.H. “Y) frontage.
DRAINAGE AND GRADING PLAN:
Construct, install, hrnish and provide facilities (including relocation of the storm
sewer lateral and installation of detention basins on Developer’s Parcel 2 and the
adjacent Parcel 1) as approved by the City Engineer and Public Works Committee for
storm and surface water drainage throughout the Site and existing standing water on
the adjacent vacant parcel to the north, as shown on the Drainage and Grading Plan
attached as Exhibit “B” Developer shall provide an “as built” survey post grading
which confirms that Developer has completed all grading in accordance with the
Drainage and Grading Plan.
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.
Despite Developer installing a detention basin on the adjacent vacant property to the
north of the Site, the City contemplates that when the adjacent property is developed,
additional drainage and grading, as well as other improvements, may be required by
the adjacent property owner at the time of development. Such future development
may require a separate developer’s agreement with the owner of the adjacent parcel
independent of this Agreement.
EROSION CONTROL MEASURES;
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 “C” and
in accordance with the plans and specifications with Chapter 29 of the City’s
Municipal Code.
Developer shall 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 turfcover is established in the Site. No grading shall occur without
a two (2) day notice to the City.
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3.
4.
5.
D
Mulching and seeding of all disturbed areas shall comply with Chapter 29.
Developer is responsible for obtaining Erosion Control Permits for the Site for
controlling erosion on the Site.
Seven Thousand Thirty and no/100 Dollars ($7,030.00.) from the Letter of Credit
(under Section XU), shall be retained until adequate vegetation is established as
determined by the Building Inspection Department. A reduction of fifty percent
(50%) ofthe Seven Thousand Thuty and no/100 Dollars ($7,030.00) portion ofthe
Letter of Credit is allowable upon verification of fifty percent (50%) of disturbed
areas scheduled for vegetation according to the plans are vegetated. 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
Seven Thousand Thirty and no/100 Dollars ($7,030.00) portion of the Letter of
Credit to correct the terms of non-conformance.
SANITARY SEWER.
1
2.
3.
4.
Developer shall construct, install, furnish and provide an 8" private sewer
extension as approved by the City Engineer and the Public Utilities
Committee, all in accordance with the plans, specifications and drawings
attached hereto as Exhibit D. The cost of the preparation of as-built plans
shall be paid by the Developer,
The City shall hrnish the Developer such permits or easements as may be
required by any public street or public property to enter upon and install the
above-described sewage extension.
Developer shall complete, to the satisfaction of the City Engineers, any
remaining punch list items concerning the Sanitary Sewer System prior to the
issuance of occupancy permits per Section X of this Agreement.
The Developer shall televise the sanitary sewer system, repair any defects as
determined by the City Engineer, supply video tape to City of Muskego, and
clean all sewer lines prior to the issuance of occupancy permits, per Section
X.B. of this Agreement and acceptance of improvements by the City.
SECTION II. TIME OF COMPLETION OF IMPROVEMENTS
The improvements set forth in Section I. above shall be completed within twelve (12) months
from the signing of this Agreement.
Page 3 of 10
Ifthe improvements set forth in Section I. have not been completed within 12 months of the 0 date of this Agreement, Developer shall extend the Letter of Credit set forth in Section XIV hereof
in a form acceptable to the City until such time as it is completed. If, after Developer begins
installation of the improvements set forth above, the City receives notice fiom Developer’s bank 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.
SECTION III. EROSION CONTROL PLAN AND PERMIT
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.
SECTION 1v. INSPECTIONS AND ADMINISTRATION FEES
Developer shall pay and reimburse the City in advance of signing this Agreement, in
accordance with Section 18.14 of the City’s Land Division Ordinance and Ordinance No. 909, and
at times speded herein, but in any event, no later than thuty (30) days after bhg, 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 and acceptance of the improvements, as
they may apply, 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.
SECTION V. MISCELLANEOUS REOUIREMENTS
The Developer shall:
A. Easements; Provide any easements on Developer’s land deemed necessary by the
City Enqeers 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; except that the storm easements shall be located as shown
on the Grading and Drainage Plans.
B. Manner of Performance: Cause all construction called for by this Agreement to be
canied out and performed in a good and workmanlike manner.
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C. Survev Monuments; Properly place and install any lot, block or other monuments
required by State Statute or City Ordinance.
D. Sieht - Distances; Restrict construction so that no StNcture of any kind which exceeds
a height of 2-1/2 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.
E. Permit: Submit to the City valid copies of all agency permits including the Wisconsin
D.N.R. before construction commences and prior to any preconsttuction meeting.
F. Municiual Street Liehts: The City shall install two street lights along the eastern right-
of-way line ofhcine Avenue to match that which is to be chosen by the City as part
of the Racine Avenudlanesville Road Lighting project. The cost of the City’s
acquisition and installation of said light poles and fixtures shall be billed to and paid
by Developer upon demand by City.
SECTION VI. GUARANTEE
The Developer shall guarantee the surface water drainage improvements and all other
improvements described in Section I above against defects due to faulty materials or workmanship
provided that such defects appear within a period of one (1) year 6om the date the City Engineer
approves same. The Developer shall pay for any damages to City property resulting ffom such faulty
materials or workmanship. This guarantee shall not be a bar to any action the City might have for
neghgent workmanship or materials. Wisconsin law on negligence shall govern such situation.
SECTION M. 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 indemrufy 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.
Page 5 of 10
0 SECTION WL 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 any purchaser of the Site or any interest therein. Further, that
the sale ofthe Site shall not release the Developer fiom completing the work on the attached Exhibits.
SECTION. E. CONSTRUCTION PERMIT. ETC,
A. 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 The City shall cooperate with the Developer in obtaining similar permits, resolutions and
documents as may be necessary fiom other authorities having jurisdiction in the site.
B. 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 X.
0 SECTION X. BUILDING AND OCCUPANCY PERMITS
A. Building Permits. It is expressly understood and agreed that no building permits for
any buildings shall be issued until the City has determined that all necessary DNR permits must be
obtained by Developer and approved by the City, all past due balances in the Developer’s Deposit
have been satisfied as reasonably determined by the Planning Director, surface water drainage
facilities are sdicientiy complete and hnctioning as designed, pre-above surface grade construction
erosion control measures have been complied with, and that this document has been executed.
Grading shall comply with the Drainage and Grading Plan (See Section I.B.)
B. Occupancy 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.
SECTION XI. GENERAL CONDITIONS AND REGULATIONS
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 accordan= with and subject to the provisions of said ordinances. Any fine arising
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fiom violations to any City Codes and Ordinances relating to this Development or remedial work
required by the City may be deducted from the Letter of Credit.
SECTION XII. 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 ofEighty-Eight Thousand, Three Hundred Thirty-Three and 50/100
Dollars ($88,333.50) as a guarantee that the required plans, improvements, approvals, and/or
payments for Section I. will be completed by the Developer and its subcontractors no later than one
(1) year from signing ofthe Agreement except if another date is provided with 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 material defects(s) 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.
Upon written request by Developer, City shall approve and authorize reductions of the Letter
of Credit for completed work. Each written request shall be in the general form as and meet the
requirements set forth in the attached Exhibit E. Periodic reductions and a final termination of the
Letter of Credit shall be allowed. The reduction request shall include the amounts for the storm
sewer system, drainage and gradmg, and sanitary sewer extension, street lighting, and the termination
request shall include the retention, if any.
SECTION Xm. PARTIES BOUND
A. Developer or his assignees shall be bound by the terms of this Agreement or any part
herein as it applies to the Site.
B. The property owner ofthe adjacent vacant property to the north of the Site consents
to and agrees to be bound to this Agreement as to those sections which pertain to his property.
C. Approval by the City shall not be deemed a waiver as the ultimate responsibility for
the proper design and installation of street 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 !?om ultimate responsibility for the design, performance,
and hnction of the development and related infrastructure.
Page7of 10
D. The City and the Developer, by mutual consent to the extent of their authority to do
so, hereby declare that this Agrement and attached Exhibits supersede and replace any and all prior
references to the proposed improvements on, under, or over the lands andor 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.
SECTION XIV. ASSIGNMENT
Developer shall not assign this Agreement without the written consent of the City, which
consent shall not be unreasonably withheld.
SECTION XV. 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 afked in duplicate original counterparts on the
0 date and year first written above.
Developer:
Thomas J. Berg Cheryl A. Berg
City of Muskego:
By:
David L. DeAngelis, Mayor Jean Marenda, City Clerk
Page8 of 10
STATE OF WISCONSIN )
COUNTY OF WAUKESHA )
1 ss
PERSONALLY came before me th~s ~ day of , 1997, Thomas J. Berg
and Cheryl A. Berg to me known to be the persons who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission is Permanent
STATE OF WISCONSIN - 1 ss.
COUNTY OF WAUKESHA 1
PERSONALLY came before me this - day of , 1997, 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 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 , 1997
Notary Public, State of Wisconsin
My Commission expires
Page 9 of 10
.
Adjacent Property Owner
The undersigned, sole owner of the adjacent property to the north of the Site
described in Section I. and shown on the Exhibits, joins in this Agreement solely for the purpose of
indicating his agreement with the provisions which pertain to his property.
Michael Dilworth
STATE OF WISCONSIN
COUNTY OF WAUKESHA
1 ss.
PERSONALLY came before me this - day of 1997 0 Michael Ddworth to me known to be the person who executed the foreioing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission
This instrument was drafted by
Attorney Susan C. Sorrentino
550 Bay View Road
Mukwonago, WI 53 149
(414) 363-3150
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