CCR2019046-Attachment
The Waters of Lake Denoon
DEVELOPER'S AGREEMENT
Document Title
Document Number
This Agreement, made this ____ day of ________, 2019 by
and between Community Holdings, 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
development described under adopted Resolution PC #053-
2018 (the “Development”), a part of the lands described as
Tax Key Number MSKC 2283.999, and
Name and Return Address
Recording Area
All that part of the Northeast Quarter (NE ¼) of the Southwest
City of Muskego
Quarter (SW ¼) and the Northwest Quarter (NW ¼) of the
Planning Division
Southeast Quarter (SE ¼) Section 31, Town 5 North, Range
20 east, City of Muskego, Waukesha County, Wisconsin
W182 S8200 Racine Ave.
bounded and described as follows: Beginning at the northwest
Muskego, WI 53150
corner of the Southeast Quarter (SE ¼) of Section 3; thence
North 88°19’42” East along the north line of said Southeast
Parcel ID # (PIN):
Quarter (SE ¼) 1044.46 feet to a meander line of Lake
MSKC 2283.999
Denoon; thence the following courses along said meander line
South 43°01’53” West 183.47 feet; thence South 32°24’44” West 140.61 feet; thence South 36°01’05”
West 163.95 feet; thence South 37°09’34” West 107.03 feet; thence South 13°51’38” West 99.03 feet to
the south property line of said Plat; thence South 88°21’47” West 632.99 feet; thence South 88°21’47”
West 1322.91 feet to the centerline of Crowbar Drive; thence North 02°16’41” West along the centerline of
Crowbar Drive 555.03 feet; thence North 88°21’47” East 1319.04 feet along the north line of the Southwest
Quarter (SW ¼) of said Section 31 to the place of beginning. Containing a net area of 1,183,336 square
feet or 27.1657 acres of land. Including the lands between the north and south property lines extended to
Lake Denoon.
WHEREAS, The Developer is required to make and install certain public improvements (“Improvements”)
reasonably necessary for the Development, conditioned upon the construction of said Improvements
according to approved plans, applicable City ordinances and written municipal specifications universally
applied as of the date of this Agreement, without cost to City; and
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 #053-2018 consists of a
15-lot residential subdivision with the features per the referenced resolution.
2. PHASING. Developer and City agree that this Agreement is for the installation of Public
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Improvements consisting of sanitary sewer, storm sewer, stormwater improvements, landscaping,
grading and roadway work and per the documents approved by Plan Commission Resolution #053-
2018 (collectively, the “Improvements”).
SECTION II : PLATTING
1. This Developer’s Agreement addresses the development of parcels platted for single family residential use,
all being under the Provisions of Sections 392 and 400 of the Municipal Code, and under the auspices of a
Conservation Planned Development District – CPD-7 zoning.
a) Single-family parcels shall conform to the zoning requirements of a CPD-7 Conservation Planned
Development District. The CPD zoning is allowed per Common Council approval and the CPD can
permit flexibility in the underlying zoning requirements.
b) Outlots shall be reserved for open space management and stormwater purposes consistent with CPD
Planned Development overlay zoning requirements and per the Preliminary Plat approved per Council
Resolution #053-2018 on June 26, 2018.
2. Developer shall entirely at its expense:
a) As per Section 392-22B.(4) of the Muskego Municipal Code, have the Waters of Lake Denoon Final
Plat submitted and approved. The Developer shall cause the Final Plat of the Waters of Lake Denoon
to be executed and recorded, and shall provide City with evidence of recording. Note: The Final Plat
cannot be approved until after the improvements, found in Section VII, Final Acceptance of this
agreement, are accepted to ensure that no lots are sold until said acceptance is complete.
b) Concurrent with the execution of this Agreement tender an Irrevocable Standby Letter of Credit or
Bond in the amount required herein for the construction of improvements required by this Agreement.
No construction activity may commence until this Agreement has been executed and recorded, and the
Letter of Credit or Bond has been tendered.
c) Provide the City with title evidence showing that upon recording the Final Plats, the City will have
good and indefeasible title to all interests in land dedicated or conveyed to the City by the Plats.
d) Before any improvements found in Section III of this agreement begin, the Developer 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.
e) Place and install monuments required by State Statute or City Ordinance.
SECTION III : IMPROVEMENTS:
City shall, within its jurisdiction, furnish the Developer such permits or easements as may be required to enter
upon and install the storm sewer 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 construction of 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 meetings.
Developer, shall:
A. SANITARY SEWER:
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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 and known as Plan
Set dated ____________ (the "Plans").
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.
5. Developer shall be responsible for all necessary and restoration work that is required by the City of
Muskego in Denoon Park as a result of the sanitary sewer connection work.
B. ROADS AND STREETS:
1. Grade and improve all roads and streets in accordance with the Plans including off-site Improvements
necessary to provide such roads and streets, including grading and gravel, curb and gutter, and asphalt
street Improvements as shown on the Plans.
2. Restore any damage to existing pavement, curb, gutter, and landscaping which may result from
construction of the Development.
3. Reimburse the City for the cost of all street signs, street lights, traffic signs and posts, installed in the
Development, 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 to comply with the applicable Erosion Control Plan. 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, Final
Acceptance, to comply with such Erosion Control Plan. 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.
C. 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.
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. Restore with
topsoil and seed. Establish dense vegetation consistent with the Landscape Plans.
3. The City retains the right to require Developer to install within the Development, additional surface and
storm water drainage measures if it is determined by the City Engineer that the original surface and storm
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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 the Development in perpetuity, as provided for in the Maintenance Agreement.
6. Submit an as-built grading plan that meets all City requirements.
D. LANDSCAPING:
1. Preserve existing trees outside of the public right-of-way to the maximum extent possible, when installing
the Subdivision improvements. Replace trees in accordance with plans to be approved by the Plan
Commission.
2. Remove and lawfully dispose of destroyed trees, brush, tree trunks, shrubs and other natural growth, and
all rubbish that are a byproduct of the construction of the Improvements.
3. Plant street trees without cost to City in accordance with Section 392-45 of the Muskego Municipal Code
and the adopted Urban Forestry Management Plan and Urban Forestry Strategic Plan dated March 28,
2000 and adopted by the Common Council on July 11, 2000 and in accordance with street tree and
landscape plans known as Plan Set dated (the "Landscape Plans") on file in the City Building and
Engineering Department that were approved by the Community Development Director and City Forester
prior to the signing of this agreement. The planting of the street trees shall occur shortly before the
installation of the final course of pavement.
4. The City has the right to trim and remove any landscaping features within the Development which would
interfere with safe operation and maintenance of the City right-of-ways and drainageways.
E. EROSION CONTROL MEASURES:
1. The Developer shall cause all grading, excavation, open cuts, side slopes and other land surface
disturbances to be so seeded and mulched, sodded or otherwise protected that erosion, siltation,
sedimentation and washing are prevented in accordance with the applicable Erosion Control Plan and
specifications reviewed and approved by the City Engineer, the State of Wisconsin Department of Natural
Resources, and Army Corps of Engineers, if applicable.
2. Developer shall construct, install, furnish and provide without cost to City, a complete system of Erosion
Control Devices necessary for the construction of the Subdivision, on and off-site, in accordance with the
Erosion Control Plan as approved by the Public Works Director or his designee and Public Works
Committee and in accordance with the Plans.
3. Install silt fencing in conformance with the approved Erosion Control Plan prior to the grading and
construction work. Such fences shall be maintained by the Developer until such time as the required
vegetative cover is established in the Subdivision. Install mulching and seeding of all disturbed areas to
comply with Municipal Code Chapter 29.
SECTION IV: ADDITIONAL IMPROVEMENTS
The Developer hereby agrees that if, at any time after plan approval and during construction of the
Improvements, the City Engineer determines that modifications to the Plans including additional Improvements
such as additional drainage ways, erosion control measures, and surface and storm water management
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measures are necessary in the interest of public safety, or are necessary in order to comply with current laws,
the City is authorized to order Developer, at Developer’s expense, to implement the same. If Developer fails to
construct the additional Improvements within a reasonable time under the circumstances, the City may cause
such work to be carried out and shall charge against the financial guarantee held by the City pursuant to this
Agreement. The requirement by the City to construct such additional Improvements as set forth herein must
not negatively impact the Subdivision or cause or result in the loss of a lot or any portion of a lot within the
Subdivision.
SECTION V: TIME OF COMPLETION OF IMPROVEMENTS
The improvements set forth in Section III, Improvements, except for final surface course of pavement as
described herein, shall be completed by the Developer within one (1) year from the signing of this Agreement
or prior to occupancy of any homes or issuance of building permits except if an earlier date is provided for in
the Agreement. The final surface course of pavement must be deferred until ninety percent (90%) of the homes
have been substantially completed, or twenty-four (24) months after the date of acceptance of improvements,
whichever comes first.
If the final surface course of pavement is not completed within twelve (12) months of the date of this
Agreement, the Developer shall extend the Letter of Credit or Bond in a form acceptable to the City until such
time as the final surface course of pavement is completed.
If the City receives notice of the intention to terminate the Letter of Credit or Bond prior to completion of the final
surface course pavement, such notice shall be considered a failure to complete Improvements in accordance
with this Agreement and City shall immediately notify Developer in writing. If Developer fails to respond to such
notice in the time period designated therein and promptly provide confirmation to City that the Letter of Credit
or Bond shall not be canceled, the City shall thereafter be entitled to immediately draw against the Letter of
Credit or Bond.
SECTION VI: AS-BUILT CONSTRUCTION PLANS
For private utilities the Developer can use its contractor or authorize City to prepare all necessary as-built
construction plans. For public utilities, the 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 VII : FINAL ACCEPTANCE
Throughout this Agreement, various stages of the Development will require approval by the City. “Final
Acceptance” as used herein, however, shall be the ultimate acceptance of all of the Improvements in the
completed Development as a whole, with the exception of the final lift of asphalt on the public streets, and shall
be granted specifically by resolution of the City Council. Final Acceptance shall be granted when substantial
completion occurs, as determined by the City Council pursuant to the definition of substantial completion shown
in Wisconsin Statutes Section 236.13(2)(am)(2). Granting Final Acceptance does not relieve the Developer of
any obligations of this Agreement for uncompleted Improvements, and does not constitute a waiver, in
particular, of the Developer’s obligation to complete the surface course of the public streets or any other
Improvements or obligations that may be outstanding at the time that Final Acceptance is granted.
SECTION VIII: 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
roadway and storm sewer 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,
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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 storm sewer and sanitary sewer has been installed, when all said utilities have been completed in
accordance to the Plans 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 having jurisdiction, such improvements shall be
accepted by the City by separate Resolution. Acceptance shall not occur until after the items listed in Sections
IX and X below have taken place.
SECTION IX: INSPECTION AND ADMINISTRATION FEES
Developer shall reimburse the City, 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 X: MISCELLANEOUS REQUIREMENTS
The Developer shall:
1. Easements: Provide any easements on Developer's land deemed necessary by the Public Works
Director or his designee prior to the Final Plat being signed, provided such easements are along lot lines or
to the rear of the lots and are not any more restrictive to the building of homes beyond the applicable side
yard and offset distances required by the zoning for such lots.
2. Manner of Performance: Cause all construction called for by this Agreement to be carried out and
performed in a good and workmanlike manner.
3. Survey Monuments: Properly place and install any lot, block or other monuments required by State
Statute, City Ordinance or the City Engineer.
4. Underground Utilities: Install all electrical, telephone, cable and gas utilities underground. Coordination
of installation and all costs shall be the responsibility of the Developer.
5. Permits: Provide and submit to the City upon the City’s request, valid copies of any and all governmental
agency permits.
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6. Removal of Topsoil: The Developer agrees that no topsoil shall be removed from the Subdivision
without approval from the City Engineer of which said approval shall not be unreasonably withheld,
conditioned, or delayed.
7. Debris: Have ultimate responsibility for cleaning up debris that has blown from buildings under
construction within the Subdivision until such time as all Improvements have been installed and 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 responsible for the debris to clean up the debris or to hold the
subject property owner who hired the contractor responsible. The Developer and/or subject property owner
shall clean up the debris within forty-eight (48) hours after receiving a notice from the City Engineer. If said
debris is not cleaned up after notification, the City will do so at the Developer’s and/or subject property
owner's expense, as applicable.
8. Public Construction Projects: If any aspect of the development involves a public construction project
subject to the State law, all requirements of the State Public Construction Bidding Law must be satisfied,
including but not limited to, providing a performance bond.
SECTION XI: 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 XII: GUARANTEES
The Developer shall guarantee the storm sewer, stormwater facilities, sanitary sewer and road 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 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 XIII: 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 (collectively, "City Agents") 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
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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 or City Agents.
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 inuring
against bodily injury liability and property damage with limits of at least One Million Dollars
($1,000,000.00) per occurrence, and at least Three Million Dollars ($3,000,000.00) in the aggregate (or
such higher amounts as the City shall from time to time deem reasonable). Developer shall also
maintain, at its expense, a policy of umbrella liability insurance in an amount of not less than One
Million and 00/100 Dollars ($1,000,000) in the annual aggregate. The umbrella liability policy or
policies shall provide excess limits over and above the comprehensive general liability limits stated in
this Section. Such policies 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
noncontributory 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 XIV: CITY RESPONSIBILITY FOR IMPROVEMENTS:
The City shall not be responsible to perform repair or maintenance on any Improvements until the final surface
course of pavement has been completed and accepted by the City.
SECTION XV: RISK OF PROCEEDING WITH IMPROVEMENTS PRIOR TO APPROVALS OF FINAL PLAT:
If a Developer proceeds with the installation of Improvements or other work on the site prior to approval of the
Final Plat, it proceeds at its own risk as to whether or not the Final Plat will receive all necessary approvals.
The Developer, prior to commencement of the installation of Improvements or other work on site, shall notify
the City of the Developer’s intention to proceed with the installation of Improvements or other work on site,
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prior to approval of the Final Plat. Additionally, Developer shall make arrangements to have any Improvements
and/ or other work on site inspected by the City Engineer.
SECTION XVI: 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 XVII: 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, 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 over the premises.
4. Make available to the Developer or their nominee, successors or assigns, permits for the construction of
single-family residences subject to the provision of Section XVIII, Building and Occupancy Permits.
SECTION XVIII: BUILDING AND OCCUPANCY PERMITS:
It is expressly understood and agreed that no buildings or occupancy permit shall be issued until the City
Engineer or his designee has determined that:
1. A letter of credit or bond 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 #PC053-2018 have been met to the satisfaction of the Planning Manager.
4. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Director of
Public Works and Development.
5. The Developer is not in default of any aspect of this Agreement.
6. Intentionally deleted.
7. The Final Plat is recorded and appropriate copies are delivered to the Community Development
Department.
SECTION XIX: RESERVATION OF RIGHTS AS TO ISSUANCE OF BUILDING PERMITS:
The City reserves the right to withhold issuance of any and all building permits if Developer is in violation of this
Agreement, but no permits shall be unreasonably withheld, conditioned, or delayed.
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SECTION XX: FINANCIAL GUARANTEES:
1. Bond: Concurrent with the execution of this Agreement by the City, the Developer shall file with the City a
performance bond ("Bond") setting forth terms and conditions upon which the City may draw upon
the same, in the City Attorney approved form, in the amount of $1,677,841.68 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 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 other
obligations pursuant to this Agreement have been satisfied. Instead of a Bond, Developer may
deposit a Letter of Credit, cash, a certified check or the equivalent in the same amount pursuant to
the same terms and conditions as set forth in this Agreement.
The Developer shall be deemed in violation of this Agreement and the City shall have the authority to draw
upon the financial guarantee:
a) If the Developer is in default of any aspect of this Agreement, including:
b) The Developer does not complete the installation of the Improvements within one (1) year from the
signing of this Agreement unless otherwise extended by this Agreement or by action of the City
Council, or
c) The Letter of Credit or Bond on file with the City is dated to expire sixty (60) days prior to the
expiration of the one (1) year period for completion of the Improvements, if such Letter of Credit or
Bond is not timely extended, renewed or replaced, per the terms of this Agreement and the
Improvements will not be dedicated to or accepted by the City before the expiration of the Letter of
Credit or Bond, or
d) The Developer fails to maintain a cash deposit, Bond or Letter of Credit in an amount approved by
City Engineer, and in a form approved by the City Attorney, to pay the costs of Improvements in
the Subdivision per the terms of this Agreement,
The Developer shall provide City:
e) Invoices: Invoices documenting public Improvements attributable to the subject Development.
f) Reduction of Letter of Credit or Bond 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 lien waivers for all work which is the 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, during
an ongoing default of this Agreement, 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 cures the default and proves full compliance with the
Agreement 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(2)(am)(c) and no claims have
been made against the City or by the City against the Developer in that regard. In the event the
Bond requires renewal, the City shall reduce the required amount of the Bond to 120% of the
amount of the outstanding Improvements.
2. DEVELOPER'S DEPOSIT: The Developer shall maintain a $7,500.00 balance in the Developer's Deposit
account. No reduction of the Letter of Credit or Bond balance shall be entertained until the Developer's
Deposit is funded unless otherwise authorized by the Common Council following a recommendation of the
Finance Committee. Upon completion of the Improvements, acceptance of Improvements and payment of all
DocID: 4835-9838-4278.3
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 XXI: PARTIES BOUND:
Developer 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. This section allows for the City to enforce the terms and conditions of this
agreement against all such assignees, but does not grant rights to assignees absent the City’s written consent
as described in Section XXIII, Amendments and Assignment. 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, drainage facilities, ditches, landscaping and all other improvements shall be the Developers.
The fact that the City or it's engineers, or it's 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 Development and related infrastructure.
SECTION XXII: EXCULPATION OF CITY CORPORATE AUTHORITIES:
The parties mutually agree that the Mayor and/or the City Clerk, entered into and are signatory to this
Agreement solely in their official capacity and not individually, and shall have no personal liability or
responsibility hereunder; and personal liability as may otherwise exist, being expressly released and/or waived.
SECTION XXIII: AMENDMENTS AND ASSIGNMENT:
Developer shall not assign this Agreement without the written consent of the City. The City and the Developer,
by mutual consent, may amend this Agreement, by written agreement between the City and the Developer.
SECTION XXIV: SALE OF LOTS:
No lots in the Subdivision may be sold until final acceptance of the Improvements has been granted by the
City, unless otherwise expressly approved in writing by the City Council.
SECTION XXV: 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
DocID: 4835-9838-4278.3
Muskego, WI 53150-0749
(262) 679-4136
(262) 679-5614 facsimile
To Developer:
Community Holdings, LLC
S75 W17237 Janesville Road
Muskego, WI 53150
Attn: John Jewell
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.
SECTION XXVI: RECORDING
This Agreement shall be recorded against the Subdivision property and shall run with the land.
DocID: 4835-9838-4278.3
SECTION XXVII: 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.
A. Community Holdings, LLC
By: _______________________________
Name: ______________________________
Its: ________________________________
STATE OF WISCONSIN )
) SS
WAUKESHA COUNTY )
PERSONALLY came before me this ____day of _____________, 2019,
___________________________________, to me known to be the person who executed the foregoing
instrument and acknowledged the same.
Notary Public-State of Wisconsin
My Commission Expires
MORTGAGEE CONSENT
The undersigned Mortgagee of the Subdivision lands consents to this Developer’s Agreement, and agrees that
its lien of mortgage shall be subordinate to the rights of the City of Muskego granted by this Developer’s
Agreement.
By: _______________________________
Name: ______________________________
Its: ________________________________
Dated this _____ day of ________________, 2019.
STATE OF WISCONSIN )
) SS
WAUKESHA COUNTY )
PERSONALLY came before me this _____ day of ______, 2019, __________________, to me known to be
the person who executed the foregoing instrument and acknowledged the same.
Notary Public-State of Wisconsin
My Commission Expires
DocID: 4835-9838-4278.3
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.
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 ______________, 2019, 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 _____________, 2019.
Notary Public-State of Wisconsin
My Commission Expires
DocID: 4835-9838-4278.3
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Developer's Agreement for Community
Holdings, LLC, as entered into on the ____ day of _____________, 2019 by and between Community
Holdings, LLC and the City of Muskego, pursuant to the authorization by the Common Council from their
meeting on the _____ day of ____________, 2019.
BY THE COMMON COUNCIL
______________________________
Sharon Mueller, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This ______day of ___________, 2019.
My commission expires
This instrument drafted by:
Valerie A. Johnston, Esq.
Husch Blackwell LLP
555 E. Wells, St.
Suite 1900
Milwaukee, WI 53202
DocID: 4835-9838-4278.3