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CCR2018065-Attachment The Glen at Pellmann Farm, LLC DEVELOPER'S AGREEMENT Document Title Document Number This Agreement, made this ____ day of ________, 2018 by and between The Glen at Pellmann Farm, LLC (the "Developer") and the City of Muskego, a municipal corporation of the State of Wisconsin, located in Waukesha County, hereinafter called the "City". W I T N E S S E T H WHEREAS, The Plan Commission has approved the Building Site and Operation Plan under adopted Resolution PC 004- 2017 (the “Development”), a part of the lands described as Tax Key Number MSKC 2218.990.014, and Recording Area Name and Return Address WHEREAS, The Developer is required to make and install City of Muskego certain public improvements (“Improvements”) reasonably Planning Division necessary for the Development, conditioned upon the construction of said Improvements according to approved W182 S8200 Racine Ave. plans, applicable City ordinances and written municipal Muskego, WI 53150 specifications universally applied as of the date of this Agreement, without cost to City; and Parcel ID # (PIN): MSKC 2218.990.014 WHEREAS, The City Engineer and the City's Public Works Committee have duly approved, contingent on certain other approvals, Developer's plans and specifications for the Improvements, and the City's Plan Commission has duly approved the Development contingent in part upon the execution and performance of this Agreement by the Developer. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: SECTION I: DEVELOPMENT 1. LAND USE. The Development as approved by Plan Commission Resolution # 004-2017 consists of the proposed building additions with the features per the referenced resolution. 2. PHASING. Developer and City agree that this Agreement is for the installation of Public Improvements consisting of public water main, sanitary sewer, and roadway intersection work south of Woods Road and Parkland Drive through water main and sanitary sewer easements within The Glen at Pellmann Farm development per the documents approved by the Plan Commission under Resolution # PC 004-2017. SECTION II : IMPROVEMENTS: City shall, within its jurisdiction, furnish the Developer such permits or easements as may be required to enter upon and install the water main and sanitary sewer improvements described herein. Developer shall cause the construction of all Improvements called for by this Agreement to be carried out and performed in a good and workmanlike manner. Developer shall submit to the City valid copies of any agency permits that may be required in connection with the improvements, including, if necessary, the Wisconsin Department of Safety and Professional Services permits and the Wisconsin Department of Natural Resources permits before construction commences and prior to any preconstruction meeting. Developer, shall: A. WATER MAIN: a) Construct, install, furnish, and provide, the Improvements which constitute a complete system of water supply and distribution, throughout the entire Development, as approved by the City Engineer or his designee and in accordance with the plans and specifications on file in the Community Development Department (the “Plans”). Developer shall be solely responsible for the cost of installing the Public Water Main as shown on the approved Plans. b) Apply for any necessary permits to use water from hydrants for construction permits, as may be required by applicable City ordinance. c) Convey, at no cost to the City, any easements necessary for proposed or existing water mains and appurtenances as deemed necessary by the City in a form required by the City. d) Complete to the satisfaction of the City engineer or his designee any punch list items concerning the Improvements prior to connection of any building to the water system. B. SANITARY SEWER: 1. Construct, install, furnish, and provide without cost to City, a complete sanitary sewage collection system throughout the entire Development, and including offsite improvements necessary to provide such system, as approved by the Public Works Director or his designee and the Public Works Committee in accordance with the plans, specifications and drawings on file in the City Engineering Department. 2. Complete, to the satisfaction of the Public Works Director or his designee, any remaining punch list items concerning the Sanitary Sewer System prior to the connection of any structure to the sanitary sewer systems. 3. Clean all sanitary sewers in the Subdivision prior to acceptance of the Improvements and issuance of building permits by the City. 4. Request televising of the sanitary system by the City of Muskego and reimburse the City for costs to complete the televising. C. ROADS AND STREETS: 1. Grade and improve all roads and streets in accordance with the plans and specifications approved by the Public Works Committee 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 Public Works Director or his designee and Public Works Committee as indicated in the plans and specifications on file with the Engineering 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, street lights, traffic signs and posts, including the cost of their installation. 4. Contractors working at the Development are required to clean up all mud, dirt, stone or debris on the streets no later than the end of each working day. In addition, the Developer shall have ultimate responsibility for cleaning up any and all mud, dirt, stone or debris on the streets until Final Acceptance has been granted by the City Council as described in Section VII. The City shall make a reasonable effort to require the contractor that placed the mud, dirt, stone or debris on the street, to clean up the same or to hold the subject property owner who hired the contractor responsible. The Developer shall clean up the streets within twenty-four (24) hours after receiving a notice from the City. If said mud, dirt, stone or debris are not cleaned up after notification, the City may do so at the Developer’s and/or subject property owner's expense, at the option of the City. D. STORM AND SURFACE WATER DRAINAGE AND GRADING PLAN: 1. Construct, install, furnish and provide facilities as approved by the Public Works Director or his designee and Public Works Committee for storm and surface water drainage throughout the entire Development and off-site improvements as necessary, all in accordance with the plans and specifications on file in the Building and Engineering Department. The City retains the right to require the Developer to install at Developer’s cost additional storm drainage and erosion control measures prior to acceptance of improvements by the City of Muskego. 2. Grade and improve the development in conformance with the grading plan as approved by the Public Works Director or his designee and Public Works Committee in accordance with the plans and specifications on file in the City Engineering Department. Restore with topsoil and seed. Establish dense vegetation. 3. The City retains the right to require Developer to install within the development (and immediately adjacent area if applicable and necessary), additional surface and storm water drainage measures if it is determined by the City Engineer that the original surface and storm water drainage plan as designed and/or constructed does not provide reasonable stormwater drainage pursuant to the City’s ordinances, written procedures and policies. 4. Clean all Storm Sewers prior to acceptance of improvements and the issuance of building permits by the City. 5. Execute and record a Maintenance Agreement as approved by the Public Works Director or his designee relating to privately owned storm water appurtenances, and provide proof of recording. Keep and maintain all storm sewers, retention or detention ponds, and surface water drainage features which are outside of the rights-of-way in perpetuity, as provided for in the Maintenance Agreement. 6. Submit an as-built grading plan that meets all City requirements. E. EROSION CONTROL MEASURES: 1. Developer shall undertake such erosion control measures as may be necessary in connection with Waukesha County’s and the City’s Erosion Control Ordinances, and in accordance with the Plans. 2. Developer Shall construct, install, furnish and provide without cost to City, a complete system of Erosion Control Devices or measures necessary for the construction of the Improvements, on and off- site, in accordance with the Erosion Control Plan as approved by the City Engineer or his designee and in accordance with the plans and specifications on file in the Community Development Department. No construction or grading can begin until the City issues said permit, and no grading shall occur without a two (2) day notice to the City. SECTION III: TIME OF COMPLETION OF IMPROVEMENTS The Improvements set forth in Section II shall be completed by the Developer within one (1) year from signing of this Agreement or prior to occupancy of the building. SECTION IV: AS-BUILT CONSTRUCTION PLANS Developer authorizes the City to prepare all necessary as-built construction plans for the Improvements to be dedicated to the City. Developer agrees to reimburse 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 City may utilize Developer’s Developers Deposit account for all charges related hereto. SECTION V: DEDICATION AND ACCEPTANCE OF IMPROVEMENTS Subject to all of the other provisions of this Agreement, Developer shall, without charge to the City, upon completion of the above described Improvements, unconditionally give, grant, convey and fully dedicate the water main and sanitary sewer facilities 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, structures, mains, conduits, pipes lines, plant, machinery, equipment, appurtenances and hereditaments which may in any way be a part of or pertain to such Improvements and together with any and all necessary easements for access thereto. The City will be receptive to the dedications of Improvements, except private storm water drainage facilities, after the water main and sanitary sewer has been installed, when all said utilities have been completed and approved by the City Engineer and other agencies as applicable. 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 approved plans, applicable City ordinances and written municipal specifications universally applied as of the date of this Agreement. Claims of financial hardship by the Developer shall not be considered a reason for the City to accept substandard materials or work. 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 Developer, provided, however that connection to any facilities located on or under Developer’s property shall require notice to Developer. 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. SECTION VI: INSPECTION AND ADMINISTRATION FEES Developer shall pay and reimburse the City in advance of the signing of the Agreement, in accordance with Section 392-13 of the Land Division Ordinance and Muskego Municipal Code Section 39-10, 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 II, 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 VII: MISCELLANEOUS REQUIREMENTS The Developer shall: 1. Easements: Provide any easements to access the Improvements on Developer's land deemed necessary by the City Engineer or his designee prior to occupancy or dedication. 2. Manner of Performance: Cause all construction of the Improvements called for by this Agreement to be carried out and performed in a good and workmanlike manner. 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 Developer shall guarantee the water main, sanitary sewer and road Improvements described in Section II, 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 Developer shall pay for any damages to City property resulting from such faulty materials or workmanship. This guarantee shall not be a bar to any action the City might have for negligent workmanship or materials. Wisconsin law on negligence shall govern such situation. SECTION 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, Developer shall indemnify and save harmless, and agrees to accept tender of defense and to defend and pay any and all reasonable legal, accounting, consulting, engineering and other expenses relating to the defense of any claim asserted or imposed upon the City its officers, agents, and employees, and independent contractors growing out of this Agreement as stated above by any party or parties except those claims asserted by Developer against City, its officers, agents and employees in an effort to enforce this Agreement. a) Hold Harmless. The Developer shall indemnify and hold harmless the City, its officers, agents, independent contractors, consultants, 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, provided 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 Developer, its officers, agents, independent contractors, and employees or anyone for whose acts any of them may be made liable. In any and all claims against the City, its officers, agents, independent contractors, and employees by the Developer, its officers, agents, independent contractors, employees, and anyone directly or indirectly employed by any of them or anyone for whose acts any of them 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 Developer, its officers, agents, independent contractors, employees under Workers’ Compensation Acts, disability benefit acts, or other employee benefit acts. The foregoing indemnity shall not apply to the negligence or willful misconduct of the City. 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, consultant, and 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 Developer shall indemnify, defend, and hold City and its officers, agents, independent contractors, consultants, 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 Development (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 Developer 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 in or on the soil, groundwater, air, or any other receptor. The City agrees that it will immediately notify Developer 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, Developer 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) Developer 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 Developer and the City and its agents, employees, and officials. A certificate of Developer’s insurance shall be furnished to the City upon execution of this Agreement including separate endorsements naming the City as an additional insured, providing 30 days written notification of cancellation, naming the Developer’s insurance as primary and waiving any rights of subrogation as to the City. 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 Developer 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 in the Development. Further, that the sale of any lot or parcel shall not release the Developer from completing the Improvements provided for under this Agreement, by applicable Ordinances and as set forth in the plans and specifications on file in the Community Development 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 Developer to construct the Improvements in accordance with the plans and specifications called for by this Agreement, upon Developer's compliance with any deposit provisions or other requirements of the applicable ordinances or regulations. 2. Furnish the Developer 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 Developer in obtaining similar permits, resolutions and documents as may be necessary from other authorities having jurisdiction in the premises. SECTION XIII: OCCUPANCY PERMITS: It is expressly understood and agreed that no occupancy permit shall be issued until the City Engineer or his designee has determined that: 1. A letter of credit or cash deposit remains on file to guarantee compliance with any other obligations under the agreement. 2. The Resolution of the dedication and acceptance of Improvements is approved by the City. 3. All parameters of Resolution #PC004-2017 has been met to the satisfaction of the Planning Manager. 4. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Community Development Director. SECTION XIV: FINANCIAL GUARANTEES: 1. LETTER OF CREDIT: Concurrent with the execution of this Agreement by the City, the Developer shall file with the City a Letter of Credit, in the City Attorney approved form, setting forth terms and conditions in the amount of $758,990.28 which amount shall be approximately 120% of the estimated cost of improvements and other obligations pursuant to this Agreement. This shall be held by the City as a guarantee that the required plans and improvements will be completed by the Developer and its subcontractors no later than one (1) year from signing of the Agreement, except if another date is provided within this Agreement and as a further guarantee that all obligations to the subcontractors for work on the Development is satisfied and all other obligations pursuant to this Agreement have been satisfied. Instead of a Letter of Credit, Developer may deposit cash, a certified check or the equivalent in the same amount pursuant to the same terms and conditions as set forth in this Agreement. a) Invoices: Invoices documenting the Improvements shall be provided to the City. b) Reduction of Letter of Credit Balance: The Developer shall provide City Engineer or his designee 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 City Engineer or his designee will process all requests in accordance with policies adopted by the Finance Committee, as may be amended from time to time. The City Engineer shall not, however, reduce the financial guarantee with regard to amounts necessary to ensure compliance with obligations of this Agreement that are not improvement construction costs, unless (1) the Developer proves full compliance with such issues to the satisfaction of the City Engineer; or (2) 14 months have passed from the date of substantial completion as determined in Wisconsin Statute 236.13 and no claims have been made against the City or by the City against the Developer in that regard. 2. DEVELOPER'S DEPOSIT: The Developer shall maintain a $7,500.00 balance in the Developer's Deposit. No reduction of the Letter of Credit 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. Upon completion of the project, acceptance of improvements and payment of all project related costs, any unused balance remaining in Developer’s deposit account shall be returned to Developer. 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 relating to the Improvements or other Developer obligations pursuant to this Agreement. 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: PARTIES BOUND: Developer or its assignees shall be bound by the terms of this Agreement or any part herein as it applies to the Improvements. Approval by the City shall not be deemed a waiver as the ultimate responsibility for the proper design and installation of the Improvements. The fact that the City or its engineers, or its attorney, or its staff may approve a specific project shall not constitute a waiver, or relieve the Developer from ultimate responsibility for the design, performance, and function of the Improvements. SECTION XVI: AMENDMENTS AND ASSIGNMENT: Developer shall not assign this Agreement without the written consent of the City, other than to a party related to Developer. The City and the Developer, by mutual consent, may amend this Agreement, by written agreement between the City and the Developer. SECTION XVII: NOTICES AND CORRESPONDENCE Unless otherwise stated in this Agreement, the delivery of all notices and correspondence shall only be effective upon being delivered personally or sent by prepaid United States Postal Service certified mail with return receipt requested, to all parties as follows: To City: Planning Division City of Muskego W182 S8200 Racine Avenue Muskego, WI 53150-0749 (262) 679-4136 (262) 679-5614 facsimile To Developer: The Glen at Pellmann Farm, LLC N27 W24025 Paul Court Pewaukee, WI 53072 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. 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 IN WITNESS HEREOF, Developer 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. The Glen at Pellmann Farm, LLC. By: _______________________________ Its: ________________________________ STATE OF________________ ) SS ______________COUNTY ) PERSONALLY came before me this ____day of _____________,2018, ___________________________________, to me known to be the person who executed the foregoing instrument and acknowledged the same. Notary Public-State of _____________ My Commission Expires IN WITNESS HEREOF, 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. 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 ______________,2018, 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 meeting on the ______ day of _____________, 2018. Notary Public-State of Wisconsin My Commission Expires CERTIFICATION This is to certify that the foregoing is a true and correct copy of the Developer's Agreement for The Glen at Pellmann Farm, LLC., Muskego, Wisconsin, as entered into on the ____ day of _____________, 2018 by and between The Glen at Pellmann Farm, LLC., and the City of Muskego, pursuant to the authorization by the Common Council from their meeting on the _____ day of ____________, 2018. BY THE COMMON COUNCIL ________________________ Sharon Mueller, City Clerk-Treasurer SUBSCRIBED AND SWORN TO BEFORE ME This ______day of ___________, 2018. My commission expires