Loading...
CCR2013055-Attachment Davis Phase II Developer’s Agreement Document Title Document Number Legal Description: Being a redivision of Parcel 1 of C.S.M. No. 11030 and lands being a part of the SW 1/4 of the SW 1/4 of Section 17, Township 5 North, Range 20 East, in the City of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Commencing at the Southwest corner of said SW 1/4 of Section 17; thence N88°18'06"E along the South line of said SW 1/4 Section, 492.58 feet to a 1" iron pipe found, also the point of beginning of lands hereafter described: thence the following courses along the exterior of said C.S.M. No. 11030: thence N01°10'24"W, 666.55 feet to a 1" iron pipe found; thence N88°18'06"E, 410.82 feet to a 1" iron pipe found; thence S01°04'07"E, 110.00 feet to a 1" iron pipe found; Recording Area thence N88°18'06"E, 416.51 feet to a point on a curve on the Westerly right-of-way of Woods Road; thence Southeasterly 175.23 Name and Return Address feet along the arc of said curve, whose center lies to the Northeast, City of Muskego whose radius is 528.13, whose chord bears S25°10'10"E, 174.43 Com. Dev. Dept. feet to a point, also being the terminus of said course; thence the P.O. Box 749 following courses along the Southerly exterior of Lot 1 of CSM No. Muskego, WI 53150 11030: thence S88°18'06"W, 173.24 feet to a point; thence S41°43'34"W, 93.72 feet to a point; thence S56°13'28"W, 86.83 feet to a point; thence S39°16'23"W, 56.85 feet to a point; thence Tax Key No. MSKC 2227.989.010 S32°40'19"W, 58.68 feet to a point; thence S52°31'41"W, 214.32 feet to a point; thence S66°54'10"W, 180.09 feet to an iron pipe found; thence S88°18'06"W, 178.51 feet to the point of beginning. Said lands containing 8.72 acres more or less. This information must be completed by the submitter: document title, name & return address, and PIN (if required). Other information such as the granting clauses, legal description, etc. may be placed on this first page of the document or may be placed on additional pages of the document. Note: Use of this cover page adds one page to your document and $2.00 to the recording fee.. Wisconsin Statutes, 59.517. WRDA 2/96 DAVIS PHASE II - CITY OF MUSKEGO DAVIS PHASE II DEVELOPER'S AGREEMENT This Agreement, made this ___ day of ____________, 2013 by and between David Davis (the "Owner") and the City of Muskego, a municipal corporation of the State of Wisconsin, located in Waukesha County, (the "City"). W I T N E S S E T H WHEREAS, the Owner has submitted for approval by the City a Certified Survey Map for Davis (the “Subdivision”), a part of the lands described as: Part of the Northwest ¼ of Section 20, Town 5 North, Range 20 East, in the City of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Being a redivision of Parcel 1 of C.S.M. No. 11030 and lands being a part of the SW 1/4 of the SW 1/4 of Section 17, Township 5 North, Range 20 East, in the City of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Commencing at the Southwest corner of said SW 1/4 of Section 17; thence N88°18'06"E along the South line of said SW 1/4 Section, 492.58 feet to a 1" iron pipe found, also the point of beginning of lands hereafter described: thence the following courses along the exterior of said C.S.M. No. 11030: thence N01°10'24"W, 666.55 feet to a 1" iron pipe found; thence N88°18'06"E, 410.82 feet to a 1" iron pipe found; thence S01°04'07"E, 110.00 feet to a 1" iron pipe found; thence N88°18'06"E, 416.51 feet to a point on a curve on the Westerly right-of-way of Woods Road; thence Southeasterly 175.23 feet along the arc of said curve, whose center lies to the Northeast, whose radius is 528.13, whose chord bears S25°10'10"E, 174.43 feet to a point, also being the terminus of said course; thence the following courses along the Southerly exterior of Lot 1 of CSM No. 11030: thence S88°18'06"W, 173.24 feet to a point; thence S41°43'34"W, 93.72 feet to a point; thence S56°13'28"W, 86.83 feet to a point; thence S39°16'23"W, 56.85 feet to a point; thence S32°40'19"W, 58.68 feet to a point; thence S52°31'41"W, 214.32 feet to a point; thence S66°54'10"W, 180.09 feet to an iron pipe found; thence S88°18'06"W, 178.51 feet to the point of beginning. Said lands containing 8.72 acres more or less. 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 Owner 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 and Finance Committee have duly approved, contingent of certain other approvals, Owner's plans and specifications for subdivision improvements, and the City's Plan Commission and Common Council have duly approved the certified survey map of the Davis property contingent in part upon the execution and performance of this Agreement by the Owner. NOW, THEREFORE, In consideration of the covenants herein contained, the parties hereto agree as follows: SECTION I : PLATTING 1. This Owner’s Agreement addresses the development of 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 A- 1 Agricultural District zoning. a) Single family parcels in this CSM shall conform to the zoning requirements of A-1 Agricultural District, being a minimum of 120,000 square feet in area per unit. 2. Owner shall entirely at its expense: a) Within fourteen (14) days after approval of this Agreement by the Common Council, the Owner 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) Owner shall cause the CSM to be executed and recorded, and shall provide City with evidence of recording when appropriate for owner. c) Upon execution of this Agreement tender cash or letter of credit in the amount required herein for the construction of the improvements herein. No construction activity may commence until this Agreement has been executed and recorded, and the cash or letter of credit has been tendered. d) Place and install monuments required by State Statute or City Ordinance. SECTION II : PHASING 1. Owner and the City agree that the installation of public and private improvements described in Section III shall occur in one phase and the recording of the CSM may take place after said improvements are completed. SECTION III : IMPROVEMENTS Owner shall entirely at its expense: A. SEWER: 1. Complete the approval process with the MMSD and WDNR for sanitary plan approvals. 2. Construct, install, furnish, and provide without cost to the City, a complete system of sanitary sewer collection for Lot #1 per the plans approved by the Public Works Director and Public Works Committee and in accordance with the plans and specifications on file in the City Public Works Department. 3. Apply for all necessary permits to use water from hydrants for construction permits, as may be required by the City. 4. Complete to the satisfaction of the City any punch list items concerning the sanitary sewer collection system prior to connection of any building to the system. SECTION IV : TIME OF COMPLETION OF IMPROVEMENTS The improvements set forth in Section III above shall be completed by the Owner within one (1) year from signing 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 Owner authorizes the City to prepare all necessary as-built construction plans for improvements to be dedicated to the City. Owner 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 Owner’s Developers Deposit account for all charges related hereto. Owner authorizes the City to convert digital files submitted by Owner 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. Owner agrees to reimburse the City for all costs incurred in said conversions and the City may utilize Owner’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, Owner 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 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. 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 Owner shall not be considered a reason for the City to accept substandard materials 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 Owner. SECTION VII: INSPECTION AND ADMINISTRATIONS FEES Owner 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 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 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 Owner 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 Owner 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, Owner 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 Owner against the City, its officers, agents and employees in an effort to enforce this Agreement. The Owner 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 Owner 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 Owner, 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 Owner, 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 Owner, 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. c) Indemnification for Environmental Contamination. The Owner 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 Owner 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 Owner 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, Owner 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) Owner or owner’s contractor, 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 Owner 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 Owner’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 Owner 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 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 Owner 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: 1. Issue such permits, adopt such resolutions, and execute such documents as may be necessary to permit the Owner to construct the improvements in accordance with the plans and specifications called for by this Agreement, upon Owner's compliance with any deposit provisions or other requirements of the applicable ordinances or regulations. 2. Furnish the Owner 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 Owner in obtaining similar permits, resolutions and documents as may be necessary from other authorities having jurisdiction in the premises. 4. Make available to the Owner or its nominee, successors or assigns, permits for the construction of single family residences on the 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 occupancy permits shall be issued for any homes until the City Engineer has determined that: 1. Negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Community Development Director. 2. That all improvements as per this agreement have been completed. SECTION XIV: FINANCIAL GUARANTEES: 1. LETTER OF CREDIT: Concurrent with the execution of the Agreement by the City, the Owner shall extend existing Letter of Credit which is in place to secure the water main improvements set for in the Developers Agreement that has already been entered into for water main installation, in the City Attorney approved form, setting forth terms and conditions in the amount of $53,796, which amount shall be approximately 120% of the estimated cost of improvements, as a guarantee that the required plans and improvements will be completed by the Owner and its subcontractors no later than one (1) year from signing of the Agreement, except if another date is provided within this Agreement, as a guarantee that all obligations to the subcontractors for work on the Subdivision are satisfied and as a guarantee that all obligations of the Agreement are satisfied specifically including, but not limited to, prevailing wage rates, hours of labor and public bidding. If the City receives notice of the intention to terminate the Letter of Credit prior to compliance with all obligations of this Agreement, such notice shall be considered a failure to comply with the obligations of the Agreement and shall entitle the City to immediately draw against the Letter of Credit. Instead of a Letter of Credit, Owner may deposit cash, a certified check or the equivalent in the same amount pursuant to the terms and conditions as set forth in the Agreement. a) Invoices: Invoices documenting public improvements addressed and not addressed in the Letter of Credit, but attributable to the subject development shall be provided to the City. b) Reduction Of Letter Of Credit Balance: The Owner shall provide Director of Public Works 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 Director of Public Works 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 Owner shall maintain a $500.00 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 entitles by virtue of this Agreement relating to the improvements and any other obligations under this Agreement including, but not limited to, prevailing wage rates, hours of labor and public bidding. 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. 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 obtain any necessary prevailing wage rate determination for the project: and (2) The Developer shall pay wage rates not less than the prevailing hourly wage rate as described and regulated pursuant to such statutes and regulated laws; and (3) The Developer shall comply with the prevailing hours of labor as described and regulated pursuant to such statutes and related laws; and (4) The Developer shall fully comply with the reporting obligations, and all other requirements of such laws; and (5) The Developer shall ensure that the Developer’s subcontractors also fully comply with such laws and (6) The Developer shall file the documentation required by Wisconsin Statutes Section 66.0903(9)b and 66.0903(9)c and any other documentation the City deems reasonably necessary. 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: Owner 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 Owners. 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 Owner from ultimate responsibility for the design, performance, and function of the Development and related infrastructure. SECTION XVII : AMENDMENTS AND ASSIGNMENT: Owner shall not assign this Agreement without the written consent of the City. The City and the Owner, by mutual consent, may amend this Agreement, by written agreement between the City and the Owner. 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, 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 City: To Owner: Planning Department David Davis City of Muskego W200 S8609 Woods Road POB 749 Muskego, WI 53150 W182 S8200 Racine 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 XIX : PARTIES TO THE AGREEMENT IN WITNESS HEREOF, Owner 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. A. DEVELOPER By: David Davis, Owner/Developer STATE OF WISCONSIN ) ) SS WAUKESHA COUNTY ) PERSONALLY came before me this ____ day of _____________, 2013 David Davis, Owners/Developers, to me known to be the persons 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: Kathy Chiaverotti, Mayor BY: Sharon Mueller, City Clerk-Treasurer STATE OF WISCONSIN ) ) SS WAUKESHA COUNTY ) PERSONALLY came before me this ___ day of _______, 2013, the above named Kathy Chiaverotti, Mayor, and Sharon Mueller, 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 th meeting on the 28 day of May, 2013. Notary Public-State of Wisconsin My Commission Expires CERTIFICATION This is to certify that the foregoing is a true and correct copy of the Owner's Agreement for the Davis CSM, Muskego, Wisconsin, as entered into on the ____ day of __________, 2013, by and between David Davis and the City Of Muskego, pursuant to the authorization by the Common Council from their meeting on the 28th day of May, 2013. BY THE COMMON COUNCIL ________________________ Sharon Mueller, City Clerk-Treasurer City Clerk/Treasurer SUBSCRIBED AND SWORN TO BEFORE ME This ______day of________________, 2013. My commission expires This instrument drafted by Jeff Muenkel, Community Development Director City of Muskego PO Box 749 Muskego, WI 53150