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CCR2006163. . . COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #163-2006 APPROVAL OF SUBDIVIDER'S AGREEMENT James WHEREAS, A Subdivider's Agreement has been received in conjunction with the certified survey maps for Dovic/James; and WHEREAS, The Finance Committee has reviewed the documentation and has recommended approval. NOW, THEREFORE, BE IT RESOLVED That the Subdivider's Agreement for the James Property, as attached, is hereby approved subject to approval of the City Attorney and City Engineer, 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, and that the Mayor, in consultation with the City Attorney, may make any necessary technical corrections. DATED THIS 22nd DAY OF AUQust ,2006 SPONSORED BY: FINANCE COMMITTEE Ald. Nancy Salentine Ald. Eric Schroeder Ald. Eileen Madden This is to certify that this is a true and accurate copy of Resolution #163-2006 which was adopted by the Common Council of the City of Muskego. 8/2006jmb JAMES - CITY OF MUSKEGO JAMES CSM SUBDIVIDER'S AGREEMENT . This Agreement, made this _th day of 2006 by and between James (the "Subdivider") and the City of Muskego, a municipal corporation of the State of Wisconsin, located in Waukesha County, (the "City"). WITNESSETH WHEREAS, the Subdivider has submitted for approval by the City a Certified Survey Map for James (the "Subdivision"), a part of the lands described as: Fíli ín the CSM(s) of which will be recorded with the Register of Deeds for Waukesha County and a copy of which is on file in the Office of the City Clerk; and WHEREAS, The Wisconsin Statutes and Muskego Ordinances provide that as a condition of plat approval, the governing body of the City may require that the Subdivider make and install certain public improvements reasonably necessary for the Subdivision and further, may require dedication of public streets, alleys or other ways within the Subdivision, to be conditioned upon the construction of said improvements according to municipal specifications without cost to said municipality; and WHEREAS, The City's Engineers, the City's Public Works Committee, Public Utility Committee and .inance Committee have duly approved, contingent of certain other approvals, Subdivider's plans and pecifications for subdivision improvements, and the City's Plan Commission and Common Council have duly approved the certified survey maps of the James property contingent in part upon the execution and performance of this Agreement by the Subdivider. NOW, THEREFORE, In consideration of the covenants herein contained, the parties hereto agree as follows: SECTION I: PLATTING 1. This Subdivider's Agreement addresses the development of a total of 7 parcels platted for single family residential use, all being under the Provisions of Chapters 17 and 18 of the Municipal Code, and under the auspices of the RS-2 Suburban Residence District unsewered zoning. a) Single family parcels in this CSM shall conform to the zoning requirements of an unsewered RS-2 Suburban Residence District, being a minimum of 40,000 square feet in area per unit, having street yard setbacks of 40 feet, side and rear yard offsets of 15 feet on one side and 20 feet on all other sides. 2. Subdivider shall entirely at its expense: . a) Within fourteen (14) days after approval of this Agreement by the Common Council, the Subdivider shall execute this Agreement shall cause this Agreement to be recorded at the Waukesha County Register of Deeds and shall provide City with evidence of recording. b) Within fourteen (14) days after approval by all approving authorities and waiver of objection by all objecting authorities, the Subdivider shall cause the CSM to be executed and recorded, and shall provide City with evidence of recording. c) Upon execution of this Agreement tender cash in the amount required herein for the construction of the Subdivision. No construction activity may commence until this Agreement has been executed and recorded, and the cash has been tendered. d) Place and install monuments required by State Statute or City Ordinance. SECTION II : PHASING .. Subdivider and the City agree that final platting and the installation of public and private improvements described in Section III shall occur in one phase. SECTION III: IMPROVEMENTS Subdivider shall entirely at its expense: A. ROADS AND STREETS: 1. Grade and improve all roads and streets in accordance with the plans and specifications approved by the Public Works Committee on July 25, 2006, including off site improvements necessary to provide such roads and streets, including grading and gravel, curb and gutter, and asphalt street improvements, as approved by the Director of Engineering and Building and Public Works Committee as indicated in the plans and specifications on file with the Engineering and Building Department. 2. Restore any damage to existing pavement, curb, gutter, and landscaping which may result from construction of subdivision improvements. 3. Reimburse the City for the cost of all street signs, traffic signs and posts, including the cost of their installation. SECTION IV: TIME OF COMPLETION OF IMPROVEMENTS _he improvements set forth in Section III above shall be completed by the Subdivider within one (1) year from igning of this Agreement or except if an earlier date is provided for in the Agreement. If the City receives notice of the intention to retrieve the cash deposit prior to completion of the improvements such notice shall be considered a failure to complete improvements in accordance with this agreement and shall entitle the City to immediately draw against the cash deposit. SECTION V : AS-BUILT CONSTRUCTION PLANS Subdivider authorizes the City to prepare all necessary as-built construction plans for improvements to be dedicated to the City. Subdivider agrees to reimburse the 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 the City may utilize Subdivider's Developers Deposit account for all charges related hereto. Subdivider authorizes the City to convert digital files submitted by Subdivider 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 the City. Subdivider agrees to reimburse the City for all costs incurred in said conversions and the City may utilize Subdivider's Developers Deposit account for all charges related hereto. SECTION VI: DEDICATION AND ACCEPTANCE OF IMPROVEMENTS Subject to all of the other provisions of this Agreement, Subdivider shall, without charge to the City, upon completion of the improvements described above in Section III, unconditionally give, grant, convey and fully dedicate the improvements 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 imitation 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. 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 City standards and specifications. Claims of financial hardship by the Subdivider shall not be considered a reason for the City to accept substandard eaterials or work. 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. The Resolution of Acceptance shall be recorded with the Waukesha County Register of Deeds. 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 Subdivider. SECTION VII: INSPECTION AND ADMINISTRATIONS FEES Subdivider 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 III, 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 payor 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 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 Subdivider shall guarantee all improvements described in Section III, 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 Subdivider 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 any such action. 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, Subdivider 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 .arties except those claims asserted by Subdivider against the City, its officers, agents and employees in an ~ffort to enforce this Agreement. The Subdivider 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 Subdivision and give the City evidence of the same upon request by the City. . . a) Hold Harmless. The Subdivider 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 performance of the Work, providing 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 Work itself) including the loss of use resulting therefrom, and (ii) is caused in whole or in part by any negligent act or omission of the Subdivider, 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 Subdivider, its officers, agents, independent contractors, employees, and anyone directly or indirectly employed by any of them or anyone for whose acts any of they 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 Subdivider, its officers, agents, independent contractors, employees under Workers' Compensation Acts, disability benefit acts, or other employee benefit acts. b) Personal Liabilitv 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. c) Indemnification for Environmental Contamination. The Subdivider shall indemnify, defend, and hold the 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 the Plat and this Agreement (including but not limited to street right-of-way) of any toxic or hazardous substances arising from any activity occurring prior to the acceptance of all improvements. Without limiting the generality of the foregoing, the indemnification by the Subdivider 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 the soil, groundwater, air, or any other receptor. The City agrees that it will immediately notify Subdivider 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, Subdivider 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) Subdivider 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 Subdivider 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 Subdivider'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. SECTION XI: AGREEMENT FOR BENEFIT OF PURCHASERS: The Subdivider shall agree that in addition to the City's rights herein, the provisions of this Agreement shall be .or the benefit of the purchaser of any lot or any interest in any lot or parcel of land in the Subdivision. Further, that the sale of any lot or parcel shall not release the Subdivider from completing the work provided for under this Agreement, by applicable Ordinances and as set forth in the plans and specifications on file in the City Building and Engineering Department. SECTION XII: CONSTRUCTION PERMITS. ETC. The City shall, within its authority: .. Issue such permits, adopt such resolutions, and execute such documents as may be necessary to permit the Subdivider to construct the improvements in accordance with the plans and specifications called for by this Agreement, upon Subdivider's compliance with any deposit provisions or other requirements of the applicable ordinances or regulations. 2. Furnish the Subdivider 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 Subdivider in obtaining similar permits, resolutions and documents as may be necessary from other authorities having jurisdiction in the premises. 4. Make available to the Subdivider or its nominee, successors or assigns, permits for the construction of single family residences on the 5 parcels platted for single family residential use subject to the provisions of Section XIV and this Agreement. SECTION XIII: BUILDING AND OCCUPANCY PERMITS: It is expressly understood and agreed that no building permits or occupancy permits shall be issued for any homes until the Director of Engineering and Building has determined that: 1. Certification is provided to the Director of Engineering and Building by a Registered Land Surveyor that all lot grades conform to the Master Grading Plan, and Negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Planning Director. .. 3. That all improvements as per this agreement has been completed. SECTION XIV: FINANCIAL GUARANTEES: 1. CASH DEPOSIT: Concurrent with the execution of this Agreement by the City, the Subdivider shall file with the City a cash deposit in the amount of $93,221.00 as a guarantee that the required plans and improvements will be completed by the Subdivider and his 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 Subdivision are satisfied. a) Invoices: Invoices documenting public improvements attributable to the subject development shall be provided to the City. b) Reduction Of Cash Deposit Balance: The Subdivider shall provide Director of Engineering and Building 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 the subject of the release request. The Director of Engineering and Building 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 Subdivider shall maintain a $1,000.00 balance in the Developer's Deposit. No reduction of the Cash Deposit 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 upon the Subdivision. This provision constitutes the Subdivider's consent to the installation by the City of all improvements required by this Agreement and constitutes the Subdivider's waiver of all notice and hearing requirements and consent to all special assessment proceedings as provided 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. SECTION XV: PARTIES BOUND: Subdivider or its assignees shall be bound by the terms of this Agreement or any part herein as it applies to any phase of the development. 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 Subdividers. 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 Subdivider from ultimate responsibility for the design, performance, and function of the Development and related infrastructure. SECTION XVI: AMENDMENTS AND ASSIGNMENT: Subdivider shall not assign this Agreement without the written consent of the City. The City and the Subdivider, by mutual consent, may amend this Agreement, by written agreement between the City and the Subdivider. SECTION XVII: NOTICES AND CORRESPONDENCE .nless otherwise stated in this Agreement, the delivery of all notices and correspondence shall only be ffective upon being delivered personally, sent by prepaid United States Postal Service certified mail with return receipt requested, sent by facsimile with transmission confirmation, or sent by electronic mail with return receipt requested, to all parties as follows: To Subdivider: Gail James 7501 W Wind Rd. Wind Lake, WI 531 (262) 895-6608 5 To City: Planning Department City of Muskego W1 Avenue Muskego, WI 53150-0749 (262) 679-4136 (262) 679-5614 facsimile 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, facsimile transmission, or electronic mail. 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 XVIII: PARTIES TO THE AGREEMENT .N WITNESS HEREOF, Subdivider has caused this Agreement to be signed by its appropriate officers and heir seals to be hereunto affixed in duplicate original counterparts on the date and year first written above. A. DEVELOPER By: Gail James, Developer .TATE OF WISCONSIN WAUKESHA COUNTY ) ) ) SS PERSONALL Y came before me this th day of 2006 Gail James, Developer, to me known to be the person who executed the foregoing instrument and acknowledged the same. Notary Public-State of Wisconsin My Commission Expires IN WITNESS HEREOF, the 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: Charles Damaske, Mayor BY: Janice Moyer, City Clerk-Treasurer STATE OF WISCONSIN ) ) SS .AUKESHA COUNTY ) PERSONALLY came before me this _th day of 2006, the above named Charles Damaske, 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 from their meeting on the 25th day of July, 2006. Notary Public-State of Wisconsin My Commission Expires . CERTIFICATION This is to certify that the foregoing is a true and correct copy of the Subdivider's Agreement for the James AsM, Muskego, Wisconsin, as entered into on the h day of 2006, by and between Gail James ~nd the City Of Muskego, pursuant to the authorization by the Common Council from their meeting on the 25th day of July, 2006. BY THE COMMON COUNCIL Janice Moyer, City Clerk-Treasurer SUBSCRIBED AND SWORN TO BEFORE ME This th day of 2006. My commission expires This instrument drafted by Jeff Muenkel, Director of Planning City of Muskego PO Box 749 Muskego, WI 53150 . .