CCR2014015-Exhibit A
DEVELOPMENT AGREEMENT
Document Number Document Title
Recording Area
Name and Return Address
City of Muskego
P.O. Box 749
Muskego, WI 53150-0749
MSKC 2196.952
Parcel Identification Number (PIN)
THIS DEVELOPMENT AGREEMENT is
made and entered into as of the _____ day of
____, 2013, by and between Jewell Homes LLC
(the "Developer") and the City of Muskego, a
Wisconsin municipal corporation (the "City").
RECITALS:
WHEREAS, the Developer is the proposed
buyer of the real estate owned by the City of
Muskego, basically described as Tax Key Number
MSKC2196952 (the "City Property" or “the
Property”);
WHEREAS, the Developer currently contemplates
developing (the “Development Project") the Property by
constructing thereon a retail/office building containing
approximately 8,653 total square feet (the "Building");
WHEREAS, Section 66.1105 of the Wisconsin Statutes (the "Tax Increment
Law") provides the authority and establishes procedures by which the City may exercise
powers necessary and convenient to carry out the purposes of the Tax Increment Law,
cause project plans to be prepared, approve such plans, implement provisions and
effectuate the purposes of such plans, and finance such development through the use
of tax incremental financing;
WHEREAS, on or about November 27, 2012, the Common Council of the City
(the "Common Council") found that the properties located within the District were in
need of development requiring developer incentives, public improvements, and adopted
a resolution amending Tax Incremental District No. 8 (the "District");
WHEREAS, the Common Council also has approved the plan for the
development of the properties located within the District (the "TIF Project Plan");
WHEREAS, the Property is located within the District, and the Common Council
has determined that the Development Project is in accordance with the TIF Project
Plan, and has authorized representatives of the City to negotiate and execute this
Development Agreement with the Developer;
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WHEREAS, this Development Agreement is intended to provide for certain
duties and responsibilities of the Developer and the City relating to the development of
the Property as described herein;
WHEREAS, the City intends to reimburse the Developer for certain development
and site improvement costs to the Property which the City has determined are needed
for development of the Property in order to provide an incentive to the Developer which
the City finds to be necessary to encourage the Developer to undertake the duties and
responsibilities set forth herein;
WHEREAS, the City believes that unless the City provides the incentives to the
Developer described in this Development Agreement, the Developer will not undertake
the development of the Property; and
WHEREAS, the City has determined that the development of the Property
pursuant to this Development Agreement and the fulfillment generally of the
Development Agreement by the parties hereto are in the best interests of the City and
its residents; will enhance the value of other properties in the City; will promote the
orderly development of the Property in accordance with the master land use plan for
growth and development adopted by the City; and are in accord with the public
purposes and conditions of the applicable state and local laws and requirements under
which the TIF Project Plan has been undertaken and is being carried out.
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals, the covenants and
agreements set forth herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION I. REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER
The Developer makes the following representations and warranties which the
City may rely upon in entering into this and all other agreements with Developer and
upon which the City may rely in granting all approvals, permits and licenses for the
Development Project and in executing this Development Agreement and performing its
obligations hereunder:
1. Developer is a duly organized and existing limited liability company
in current status under the laws of the State of Wisconsin.
2. The execution, delivery and performance of this Development
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized and approved by the Developer, and no other or further acts or
proceedings of the Developer are necessary to authorize and approve the execution,
delivery and performance of this Development Agreement and the matters
contemplated hereby. This Development Agreement, and the exhibits, documents and
instruments associated herewith and made a part hereof, have been duly executed and
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delivered by the Developer and constitute the legal, valid and binding agreement and
obligation of the Developer, enforceable against it in accordance with their respective
terms, except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of creditors’ rights
generally, and by general equitable principles.
3. There are no lawsuits filed or pending, or to the knowledge of
Developer, threatened against Developer that may in any way affect the Property or
jeopardize or materially and adversely affect the ability of the Developer to perform its
obligations hereunder.
4. The Developer has at this time, and will have so long as this
Development Agreement continues in effect, sufficient available equity and debt funding
for the timely performance and completion of the Developer's obligations under this
Development Agreement.
5. The Developer warrants, understands and acknowledges that
notwithstanding the purchase of the City Property from the City of Muskego, the City
may or may not issue any or all permits, approvals and consents required for the
Development Project; and that the Development Project shall be subject to the usual
permitting and approval process of the City.
SECTION II. UNDERTAKINGS OF THE DEVELOPER
A. Purchase of City Property. In the event the City approves the sale of the
City Property to the Developer, the Developer shall purchase the City Property from the
City in accordance with the terms and conditions approved by the Common Council.
Said conditions include that the Developer pay $_______ at closing to cover the costs
incurred by the City in initially buying and retaining the Property. The Developer
acknowledges that in addition to all other conditions for the sale of the City Property, the
sale of the City Property and the terms, conditions and other provisions of such sale
must be approved by the City Attorney; that the sale must comply with all statutes,
ordinances and other governmental requirements applicable to the sale of the City
Property by the City; and that the redevelopment of the Property must comply with the
redevelopment plan adopted by the City for that site as well as the TIF Project Plan.
B. Obtain Approvals for Plans and Specifications. The Developer, at its
cost and expense, shall: (i) submit all information, drawings, elevations, plans,
specifications and other documents and information and all other matters required by
the City, for approval of all plans for any and all demolition, soil remediation,
improvements, construction and development of the Property in accordance with the
normal practices and procedures of the City; and (ii) obtain all approvals necessary
therefor within the earliest commercially reasonable time thereafter, and obtain all
zoning and conditional use permits and other approvals for construction of and enter
into any other and further additional development agreements with the City detailing the
requirements for construction and development of the Property prior to the
commencement of any construction activities. As part of any approval process, the City
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may, in accordance with its normal permitting and zoning or conditional use grant
process, impose such restrictions, covenants and obligations on the Developer as the
City deems appropriate for the development, construction and use of the Property. The
Developer agrees to pay all development, license, permit and other fees required by the
State of Wisconsin, the City and all other applicable governmental entities, and will not
in any way seek reimbursement from the City for the cost thereof. No buildings or
improvements shall be constructed on or in the Property until the plans and
specifications for such buildings and improvements have been granted final approval by
the City; all necessary zoning and conditional use permits and approvals are obtained in
accordance with the requirements of the City and the City ordinances; and the City and
the Developer have entered into such further development and other agreements as the
City deems necessary to detail the requirements for any and all demolition, remediation
and construction on, and development of, the Property, and the obligations of the
Developer with respect to the Development Project.
C. Compliance with Codes, Plans and Specifications. The construction of
the Building and other improvements constructed on and in the Property, and their uses,
shall be in compliance with all applicable conditional use grants and zoning and other
ordinances of the City; all other applicable laws, ordinances, regulations and
requirements of all other governmental and quasi-governmental entities having
jurisdiction over the Property; and with the pertinent provisions of the plans and
specifications which have been approved by the City. The acceptance of this
Development Agreement and granting of any and all approvals, zoning, conditional
uses, licenses and permits by the City, in and of itself, shall not obligate the City to grant
any variances, exceptions or further conditional use grants, or approve any building, any
addition to the Building, or construction the City determines not to be in compliance with
the City ordinances, or the requirements of any other applicable governmental authority.
D. Erosion Control. The Developer shall comply with all grading, zoning,
erosion and soil control requirements affecting the Property in accordance with all
applicable, federal, state, county and municipal regulations, guidelines, specifications,
laws, ordinances and permits affecting the Property or portion thereof. Without limiting
the foregoing, the Developer shall take such action and shall utilize such techniques
and mechanisms necessary to implement any erosion control plan required by the City
and with the applicable provisions of any construction site maintenance and erosion
control ordinances the City may now or hereafter have adopted, in order to prevent
sediment from being deposited on the adjacent properties or on any public street or into
adjacent wetlands and to prevent sediment from being washed into downstream
drainage facilities.
E. Protected Areas. The Developer shall be responsible for undertaking all
steps and precautions as are necessary to insure the preservation and protection of any
shoreland areas, wetlands, Native American burial grounds, and other protected
interests on or in the Property. All such protected areas disturbed in any way by
construction activities on any portion of the Property or in connection with the
development of the Property by or for the Developer, shall be restored by the Developer
to its prior condition to the reasonable satisfaction of the City.
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F. Construction Timeline for the Building. The Developer shall
commence construction of the Building as soon as practicable but in no event later than
June 1, 2014 and substantially complete construction of the Building as soon as
practicable but in no event later than June 1, 2015. For purposes of this Development
Agreement, the term "substantial completion" shall mean the issuance by the City of an
occupancy permit for the Building and the Developer and the City have entered into any
agreements required by the City concerning any uncompleted landscaping, restoration
final stabilization, final lift of asphalt or other similar matters.
G. Storm Water. The Developer shall construct such facilities and at all
times use the Property in accordance with all surface and storm water runoff,
management, filtration and other such requirements of the City and all other applicable
governmental entities and authorities. The Developer shall not commence any
construction or improvement on or in any part of the Property unless and until the
Developer has obtained all approvals required for a storm water management plan from
the City and all other applicable government authorities.
H. Public Utilities. The Developer shall install the public water services to
the Building such that no portion of the Property shall be served by a private water
system. The Developer shall obtain all requisite permits and approvals for such public
water system from all other applicable government authorities. The Developer shall
install sanitary sewer service to the Building such that no portion of the Property shall be
served by private septic or alternate means of treating sanitary sewer effluent. The
Developer shall obtain all requisite permits and approvals for such sanitary sewer
service from the City and all other applicable government authorities.
I. Covenants, Easements and Restrictions. The Developer shall convey
such covenants, easements and restrictions on, in or affecting the Property to or as
directed by the City, in order to effect the Development Project.
J. Developer Work. The Developer at its sole cost and expense shall
construct the on-site facilities and improvements on and in the Property per any
Planning Commission approval and per the building permit thereafter issued by the City
to Developer. Said improvements shall be conceptually in the form as those attached in
Exhibit A herein. Any other requirements of the Planning Commission and/or the City on
the issued building permit must be followed as well (the "Developer Improvements").
The Developer shall complete construction of the Developer Improvements as soon as
practicable but in no event later than June 1, 2015. Without limiting the foregoing, the
Developer shall at all times take all precautions necessary or advisable and at all times
perform all work on or in the Property or in connection with the Development Project, in
a manner that will safeguard and protect the water and other infrastructure that may be
affected by the Development Project. The Developer shall notify the City of the
commencement date of all work on or in or related to the Property and keep the City
informed of the Developer's construction schedule.
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K. Developer’s Deposit. The Developer shall, at its sole cost and expense,
deliver to the City a Developer’s Deposit, upon submittal for Planning Commission
approvals, and thereafter keep in full force and effect, in amount of $3,000. Said
deposit shall be kept at no less than this initial amount and Developer shall deposit such
amounts with the City as and when requested by the City. The deposit will be used by
the City for any and all fees and costs incurred by the City related to the review and
approval of the Building, Site, and Operation Plan, any miscellaneous permitting
approval costs, and the rezoning approvals of the City Property up until occupancy of
the Property.
L. Financial Information. The Developer shall, from time to time upon
reasonable request of the City, provide to the City financial information and statements
of the Developer as requested by the City certified by the Developer to be true and
correct in all respects, and all instruments and documents relating to any and all
mortgage loans secured by the Property.
SECTION III. UNDERTAKINGS OF THE CITY
A. Grants to the Developer.
(i) Utility Fees. Within forty five (45) days of the last to occur of (i) the
sale of the City Property by the City to the Developer, and (ii) the substantial completion
of the Building and Developer Improvements; and provided, that the Developer has fully
performed each and all of its obligations under this Development Agreement to be
performed by the Developer through the date thereof, the City will remit to Developer a
grant (the "Grant") in an amount not to exceed Twenty-Two Thousand Five Hundred
Dollars ($22,500.00) to partially reimburse the Developer for the costs and expenses of
Developer Improvements relating to sewer and water hookup fees. All such costs and
expenses to be reimbursed to the Developer shall be determined by the City to be costs
and expenses that are necessary and appropriate for the construction of the Building
and of the Developer Improvements within Tax Incremental District #8, and have been
paid in full by the Developer. The Developer shall submit to the City for review and
approval by the City in accordance with the usual procedures and standards of the City,
paid invoices, lien waivers for all work performed and materials supplied in connection
with the Developer Improvements, and all other such information requested by the City
if need be. Such funds will be distributed from the TIF 8 funds the City has.
(ii) Development Cost Reimbursals. Within forty five (45) days of the
City receiving and validating a paid Developer invoice for removing existing concrete
foundations and/or for removing contaminated soils from the Property; and provided,
that the Developer has fully performed each and all of its obligations under this
Development Agreement to be performed by the Developer through the date thereof,
the City will remit to Developer a reimbursement grant (the "Grant") in an amount not to
exceed the paid invoices and not to exceed a total amount of up to $600 for removing
existing concrete foundations and not to exceed a total amount of up to $14,400 for
removing contaminated soils and installing vapor intrusion devices for the Property. All
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such costs and expenses to be reimbursed to the Developer shall be determined by the
City to be costs and expenses that are necessary and appropriate for the construction
of the Building and of the Developer Improvements within Tax Incremental District #8,
and have been paid in full by the Developer. The Developer shall submit to the City for
review and approval by the City in accordance with the usual procedures and standards
of the City, paid invoices, lien waivers for all work performed and materials supplied in
connection with the Developer Improvements, and all other such information requested
by the City if need be. Such funds will be distributed from the TIF 8 funds the City has.
B. Loans to the Developer: The developer wishes to pursue a low interest
loan form the City of Muskego in an amount not to exceed $100,000. The City agrees to
follow thru with a $100,000 low interest loan for the Developer, tailored under the
procedures of the City’s adopted Commercial Loan Program. It is the Developer’s
responsibility to submit all necessary documents and receive a future Common Council
approval for said loan. Loan monies, if approved, will be distributed from the TIF 8 funds
the City has.
C. City Financing and Security.
(i) City Financing. The City may issue from time to time notes and/or
bonds which the City determines to be necessary or appropriate to finance and/or
refinance the costs of the obligations of the City under this Development Agreement and
the issuance of such notes and bonds (collectively, the "City Financing"). The City
Financing may be combined with other financing obtained by the City. It is intended that
the interest and principal on the City Financing (the "City Debt Service") shall be paid
from tax increments ("TIF Revenues") generated from the Building and other
improvements to be constructed on the Property by the Developer other than the
Dedicated Improvements. The City Debt Service shall be structured to reflect a good
faith estimate of the TIF Revenue anticipated to be generated by the Building and other
improvements on and in the Property. The parties acknowledge and agree that the City
Debt Service shall be the actual payment amount incurred by the City at the time the
City Financing is obtained. In the event the City does not obtain City Financing to fund
its obligations under this Development Agreement, the TIF Revenues shall be used to
reimburse the City as if the City had incurred the City Financing and was obligated to
pay the City Debt Service.
SECTION IV. MISCELLANEOUS REQUIREMENTS
The Developer shall do each and all of the following at its cost and expense:
A. Manner of Performance: Cause all construction obligations of the
Developer referred to in this Development Agreement to be carried out and performed
in a good and workmanlike manner, consistent with construction standards in the City;
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B. Survey Monuments: Properly install metal stakes or pipes marking the
corners of all lots that are being resurveyed and recreated pursuant to the terms of the
City;
C. Utilities: Install all electrical, telephone, cable, and gas utilities
underground in accordance with all ordinances of the City. It shall be the responsibility
of the Developer to contract to have installed and pay for all costs associated with
private utilities required by the City;
D. Permits: Provide and submit to the City, valid copies of any and all
governmental (other than issued by the City) permits relating to the construction of the
Project. No occupancy permits shall be issued for the occupancy of the Building or
portion thereof until such time as final inspections are completed and passed by the
building, fire and rescue and zoning inspectors, and construction of all Developer
Improvements are substantially completed;
E. Noise: Make every effort to minimize noise, dust, and similar
disturbances;
F. Debris: Keep the Property free from litter and debris during all phases of
grading and construction. The Developer shall promptly remove and lawfully dispose of
all tree trunks, limbs, brush and other rubbish and debris from the Development Project.
Tree trunks and other organic matters shall not be backfilled on the Property. Off-site
sediment deposits occurring as a result of a storm event shall be cleaned up by the end
of the next work day following the occurrence. All other off-site sediment deposits
occurring as a result of construction activities shall be cleaned up at the end of the work
day;
G. Stop Orders. The Developer shall promptly comply with any stop orders
issued pursuant to applicable provisions of any City ordinance because the design,
location, materials, workmanship or other performance are not in accordance with the
provisions of this Development Agreement or any ordinance of the City; and
H. Inspection. The City shall have the right at any time and from time to
time to enter upon the Property to perform any non-invasive testing and inspections
deemed necessary or appropriate by the City.
SECTION V. PAYMENT OF COSTS, INSPECTION AND ADMINISTRATIVE FEES
Upon request of the City the Developer shall promptly and fully pay all permits,
licenses, grants and other approvals for the Property requested by the Developer or
required by the City; and the development of the Property by the Developer. Any such
amounts which are not paid in full by the Developer when and as requested by the City,
may, in addition to all other rights and remedies available to the City, be collected by the
City as a special assessment on the Property to this Development Agreement. The City
acknowledges that all of the above are currently reflected as Project Costs for the
District.
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SECTION VI. CONDITIONS OF ALL OBLIGATIONS OF THE PARTIES
UNDER THIS DEVELOPMENT AGREEMENT
A. City Conditions. As a condition to each and all of the covenants,
agreements and other obligations of the City under this Development Agreement, all of
the following shall occur, in addition to all other requirements and conditions set forth in
this Development Agreement:
(i) All representations and warranties of the Developer set forth in this
Development Agreement and in all agreements expressly referred to herein shall at all
times be true, complete and correct;
(ii) All covenants and obligations of the Developer under this
Development Agreement are duly and substantially performed, observed, satisfied and
paid, when and as required herein;
(iii) No event of default has occurred, or with the giving of notice or
lapse of time would occur;
(iv) The City has obtained the City Financing as required to fully fund
the obligations of the City under this Development Agreement;
(v) The City has reviewed and approved all funding sources of the
Developer and documents evidencing those funding sources. There is no material
adverse change in the financial condition of the Developer which might impair its ability
to perform its obligations under this Development Agreement.
(vi) The sale of the City Property by the City to the Buyer complies with
all statutes, ordinances and other governmental requirements applicable to the sale of
the City Property by the City; and
(vii) The redevelopment of the Property complies with the
redevelopment plan adopted by the City and the TIF Project Plan for the Property.
SECTION VII. INDEMNIFICATIONS
The Developer will indemnify and hold harmless the City, its governing body
members, officers, agents, including the independent contractors, consultants and legal
counsel, servants and employees thereof (hereinafter, for purposes of this paragraph
collectively referred to as the “Indemnified Parties”) against any loss or damage to
property or any injury to or death of any person occurring at or about or resulting from
any breach of any warranty, covenant or agreement of the Developer under this
Development Agreement, and the development of the Property; provided that the
foregoing indemnification shall not be effective for any willful acts of the Indemnified
Parties. Except for any willful misrepresentation or any willful misconduct of the
Indemnified Parties, the Developer will protect and defend the Indemnified Parties from
any claim, demand, suit, action or other proceeding whatsoever by any person or entity
whatsoever arising or purportedly arising from the action or inaction of the Developer (or
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other persons acting on its behalf or under its direction or control) under this
Development Agreement, or the transactions contemplated hereby or the acquisition,
construction, installation, ownership and operation of the Development Project and the
Property. All covenants, stipulations, promises, agreements and obligations of the City
contained herein shall be deemed to be covenants, stipulations, promises, agreements
and obligations of the City and not of any governing body, member, officer, agent,
servant or employee or the City. All covenants, stipulations, promises, agreements and
obligations of the Developer contained herein shall be deemed to be covenants,
stipulations, promises, agreements and obligations of the Developer and not of any of
its officers, owners, agents, servants or employees.
SECTION VIII. DEFAULT/REMEDIES
A. Events of Default. An event of default ("Event of Default") is any of the
following:
1. A failure by the Developer to cause substantial completion of the
Development Project or any part thereof to occur pursuant to the terms, conditions and
limitations of this Development Agreement; a failure of either party to perform or
observe any and all covenants, conditions, obligations or agreements on its part to be
observed or performed when and as required under this Development Agreement within
thirty (30) days of notice of said failure to the Developer;
2. A failure by the Developer to pay any amount or when and as due
to the City within ten (10) days of notice of such failure to the Developer;
3. The Developer becomes insolvent or is the subject of bankruptcy,
receivership or insolvency proceedings of any kind; or
4. The dissolution or liquidation of the Developer, or the
commencement of any legal proceedings therefore.
B. Remedies on Default. Whenever an Event of Default occurs and is
continuing, the non-breaching party may take any one or more of the following actions
without waiving any rights or remedies available to it:
1. Immediately suspend its performance under this Development
Agreement from the time any notice of an event of default is given until it receives
assurances from the breaching party deemed adequate by the non-breaching party, that
the breaching party will cure its default and continue its due and punctual performance
under this Development Agreement; or
2. Commence legal or administrative action, in law or in equity, which
may appear necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the breaching party under this Development
Agreement.
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3. Perform or have performed all necessary work in the event the non-
breaching party determines that any Event of Default may pose an imminent threat to
the public health or safety, without any requirement of any notice whatsoever. In the
event of a default by the Developer, the City may use and apply all or any portion of the
grant to be provided to the Developer under Section III.B. above to cure such default
and in such event, the Developer shall no longer be deemed to be in default of this
Development Agreement but the City’s obligation to provide such grant to the Developer
shall be extinguished to the extent it is used by the City.
C. No Remedy Exclusive. No remedy or right conferred upon or reserved to
a party in this Development Agreement is intended to be exclusive of any other remedy
or remedies, but each and every such right and remedy shall be cumulative and shall be
in addition to every other right and remedy given under this Development Agreement
now or hereafter existing at law or in equity. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised from
time to time and as often as may be deemed expedient.
D. No Implied Waiver. In the event any warranty, covenant or agreement
contained in this Development Agreement should be breached by a party and thereafter
waived by the other, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other concurrent, previous or subsequent breach
hereunder.
E. Agreement to Pay Attorneys’ Fees and Expenses. Whenever any
Event of Default occurs and a party incurs attorneys fees, court costs and other such
expenses for the collection of payments due or to become due or for the enforcement or
performance or observance of any obligation or agreement on the part of the other
herein contained, the prevailing party shall be reimbursed the actual attorneys fees,
court costs and other such expenses incurred by such prevailing party.
F. Default Payment. As part of the City approvals the Developer is to pay
$20,000 at the closing of the Property to the Developer. Such monies will be held by the
City like a developer’s deposit. In the event of Default the City may keep said monies.
The monies will be given back to the Developer once the Agreement is fulfilled and the
Developer attains occupancy of the building.
SECTION IX. PERMITTED DELAYS
Whenever performance is required of any party hereunder, such party shall use
all due diligence to perform and take all necessary measures in good faith to perform;
provided, however that if completion of performance shall be delayed at any time by
reason of acts of God, war, civil commotion, riots, work stoppages arising out of
collective bargaining strikes, unavailability of materials or damage to work in progress
by reason of fire or other casualty or causes beyond the reasonable control of a party
(other than financial reasons), then the time for performance as herein specified shall be
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appropriately extended by the time of the delay actually caused and a reasonable time
thereafter acceptable to the City to remobilize. However, in order for a party to be
entitled to make a claim for any such delays, such party must give the other party
written notice of the conditions or events giving rise to the delay and the number of days
claimed to be due to such conditions or events within fifteen (15) days from the date of
the occurrence of the condition or event giving rise to the delay. The provisions of this
Section shall not operate to excuse the Developer or the City from the prompt payment
of any and all monies such party is required to pay under this Development Agreement.
SECTION X. ASSIGNMENT
The Developer shall not transfer, sell or assign the Parcel or assign this
Development Agreement or its obligations hereunder without the express prior written
consent of the City until the Developer has fully complied with its obligations under
Section II of this Development Agreement. Any such consent requested of the City prior
thereto may be withheld, conditioned or delayed for any commercially reasonable
reason.
SECTION XI. BINDING
This Development Agreement shall be binding upon the parties hereto and their
respective representatives, successors and assigns, and any and all future owners of
the Property or any portion thereof, and their respective heirs, representatives,
successors and assigns.
SECTION XII. AMENDMENTS
This Development Agreement may only be modified or amended by written
agreement duly authorized and signed by the City and all owners of the Property.
SECTION XIV. ADDITIONAL PROVISIONS
A. Conflicts of Interest. No member of any governing body or other official
of the City (“City Official”) shall have any financial interest, direct or indirect, in this
Development Agreement, the Property or the Development Project, or any contract,
agreement or other transaction contemplated to occur or be undertaken thereunder or
with respect thereto, unless such interest is disclosed to the City and the City Official
fully complies with all conflict of interest requirements of the City. No City Official shall
participate in any decision relating to this Development Agreement which affects his or
her personal interest or the interests of any corporation, partnership or association in
which he or she is directly or indirectly interested. No member, official or employee of
the City shall be personally liable to the City for any event of default or breach by the
Developer of any obligations under the terms of this Development Agreement.
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B. Incorporation by Reference. All exhibits and other documents attached
hereto or referred to herein are hereby incorporated in and shall become a part of this
Development Agreement.
C. No Implied Approvals. Nothing herein shall be construed or interpreted
in any way to waive any obligation or requirement of the Developer to obtain all
necessary approvals, licenses and permits from the City in accordance with its usual
practices and procedures, nor limit or affect in any way the right and authority of the City
to approve or disapprove any and all plans and specifications, or any part thereof, or to
impose any limitations, restrictions and requirements on the development, construction
and/or use of the Development Project as a condition of any such approval, license or
permit; including, without limitation, requiring any and all other development and similar
agreements.
D. Time of the Essence. Time is deemed to be of the essence with regard
to all dates and time periods set forth herein or incorporated herein.
E. Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Development
Agreement.
F. Notices. Any notice required hereunder shall be given in writing, signed
by the party giving notice, personally delivered or mailed by certified or registered mail,
return receipt requested, to the parties’ respective addresses as follows:
To the City: City of Muskego, Wisconsin
W182 S8200 Racine Avenue
Muskego, WI 53150
Attn: Mayor
To the Developer: Jewell Homes, LLC
Attention: John Jewell
W192S6940 Elkwood Ct
Muskego, WI 53150
414-698-3247
Notice shall be deemed delivered (a) in the case of personal delivery, on the date
when personally delivered; or (b) in the case of certified or registered mail, on the third
business day after the date when deposited in the United States mail with sufficient
postage to effect such delivery.
G. Entire Agreement. This document and all other documents and
agreements expressly referred to herein contain the entire agreement between the
Developer and the City with respect to the matters set forth herein.
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H. Governing Law. This Development Agreement shall be construed in
accordance with the internal laws of the State of Wisconsin.
I. Further Assurances. The Developer will at any time, and from time to
time at the written request of the City, sign and deliver such other documents and
instruments requested by the City as may be reasonably necessary or appropriate to
give full effect to the terms and conditions of this Development Agreement.
J. Counterparts. This Development Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original.
K. Recording. The parties hereto agree that the City may record this
Development Agreement or a Memorandum of this Development Agreement on the
record title to the Property or any portion thereof. The Developer shall upon request of
the City execute and deliver any such Memorandum or other document in connection
with such recording.
L. Covenant Running With the Land. The covenants and agreements
contained in this Development Agreement shall be deemed to be covenants running
with the land and shall be binding upon and inure to the benefit of the Developer and all
successive owners of the Property, and any portion thereof, and their respective heirs,
representatives, successors and assigns.
M. Exhibit Lists. The Exhibits referred to herein, consist of the following:
Exhibit A – Conceptual Development Plans
[SIGNATURES CONTINUED ON NEXT PAGE]
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DATED as of the day, month and year first above written.
The Developer:
Jewell Homes LLC
By:___________________________________
Name: John Jewell
Title: Managing Member
STATE OF WISCONSIN )
) ss.
COUNTY OF __________ )
Personally came before me this ____ day of _____________, 2014 the above-
named Keith Hammit to me known to be the person(s) who executed the foregoing
instrument and acknowledged the same.
_____________________________________
Notary Public,
______________ County, ________________
Commission:
_____________________________________
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City:
City of Muskego
a Wisconsin municipal corporation
By:__________________________________
Kathy Chiaverotti
Mayor
STATE OF WISCONSIN )
) ss.
COUNTY OF __________ )
Personally came before me this ____ day of _____________, 2014 the above-
named John R. Johnson to me known to be the Mayor of the City of Muskego,
Wisconsin, respectively, who executed the foregoing instrument and acknowledged the
same.
_____________________________________
Notary Public,
______________ County, ________________
Commission:
_____________________________________
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EXHIBIT A – CONCEPTUAL DEVELOPMENT PLANS
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