CCR2020049-Attachment1
This Agreement, made this ____ day of ________, 2020 by
and between Muskego School Apartments, 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 Developer has submitted for approval by the
City the development plans for the Muskego School
Apartments (the “Development”), located on the land (the
“Property”) described as:
All that part of the Southeast quarter of Section Nine (9), Town
Five (5) North, Range Twenty (20) East, bounded and
described as follows:
Starting at a point on the center line of the Janesville Plank
Road, which point is South 63 degrees West and 915.5 feet
distant from the intersection of said center line with the East line
of said Section Nine (9) -thence North 17 degrees and 45
minutes West 327.6 feet -thence South 63 degrees West 150
feet -thence South 17 degrees and 45 minutes East 327.6 feet to the center line of said Janesville Plank
Road -thence North 63 degrees East along the center line of said Plank Road 150 feet to the place of
beginning, exclusive of the highway. AND
Lot 16 in Block A in Muskego Beach Park Addition, being a subdivision of a part of the east ½ of Section 9,
Township 5 North, Range 20 East, in City of Muskego, Waukesha County, Wisconsin. EXCEPTING
therefrom that land conveyed to Waukesha County in Warranty Deed recorded on March 18, 2013 as
Document No. 3998886. AND
All that part of the North East & South East Quarters (NE & SE ¼) of Section Nine (9), Town Five (5) North,
Range Twenty (20) East, Waukesha County, Wisconsin, bounded and described as follows:
Commencing at the East Quarter corner of said Section 9; thence South along the East line of the section,
109.70 feet to the center line of County Trunk Highway "A"; thence South 63 degrees 2 1 minutes West
along said center line, 674.30 feet to the place of beginning of the parcel hereinafter described; thence
continuing South 63 degrees 21 minutes West along the center line, 127.20 feet; thence North 17 degrees
09 minutes West, 245.39 feet; thence South 72 degrees 51 minutes West, 113.42 feet; thence North 17
degrees 09 minutes West, 675.35 feet; thence North 78 degrees 00 minutes East, 279.72 feet to the center
line of a 50.00 foot road, and being 25.00 feet West of the West line of "The Michi Plat", as recorded in
Volume 10 of Plats, Page 33, Waukesha County Records; thence South 14 degrees 33 minutes East alon g
said center line and parallel to said West line of Michi Plat, 875.54 feet to the place of beginning.
Excepting and reserving from the above described parcel, the Easterly 25.00 feet for highway purposes.
AND
All that part of the East one-half of Section 9, Town 5 North, Range 20 East, Waukesha County, Wisconsin,
bounded and described as follows:
Parcel ID # (PIN):
MSKC 2193.104
MUSKEGO SCHOOL APARTMENTS
DEVELOPER'S AGREEMENT
Document Number Document Title
Recording Area
Name and Return Address
City of Muskego
Planning Division
W182 S8200 Racine Ave.
Muskego, WI 53150
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Commencing at the East Quarter corner of said Section 9; thence South along the East line of the Section,
109.70 feet to the center line of County Trunk Highway "A"; thence South 63 degrees 21 minutes West along
said center line, 801.50 feet to the place of beginning of the parcel hereinafter described; thence continuing
South 63 degrees 21 minutes West along the center line of the highway, 115.00 feet; the nce North 17 degrees
09 minutes West, 264.37 feet; thence North 72 degrees 51 minutes East, 113.42 feet; thence South 17
degrees 09 minutes East, 245.39 feet to the place of beginning.
WHEREAS, The Developer is required to make and install certain public improvements (“Improvements”)
reasonably necessary for the Development 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 & Safety 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 #060-2019, consists of (i)
twenty-two (22) apartments within the existing school building and eighteen (ii) (18) townhome units within
(a) an eight (8) unit building and (b) a ten (10) unit building with the features as identified in the referenced
resolution.
2. PHASING. Developer and City agree that this Agreement is for the installation of public and private
improvements consisting of water, sanitary sewer, storm sewer, stormwater improvements, landscaping
and grading to be completed in one phase, with building occupancy occurring in up to three phases.
SECTION II : PLATTING/ZONING
1. This Developer’s Agreement addresses the development of land for multi-family residential use, all being
under the Provisions of Sections 392 and 400 of the Municipal Code, and under the auspices of the PD -
Muskego School Apartments Planned Development District.
a) Multi-family development shall conform to the zoning requirements of the PD - Muskego School
Apartments Planned Development District. The PD zoning is allowed per Common Council approval
under Ordinance #1425.
2. Developer shall entirely at its expense:
a) Concurrent with the execution of this Agreement tender a Bond in the amount required herein for the
construction of the Improvements required by this Agreement. No construction of the Improvements
may commence until this Agreement has been executed and recorded, and the Bond has been
tendered.
b) Before any improvements found in Section III of this agreement begin, the Developer shall execute this
Agreement and shall provide said Agreement to the City for recording at the Waukesha County
Register of Deeds.
c) Place and install monuments required by State Statute or City Ordinance.
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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 water main 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 of the Improvements commences and prior to any preconstruction meeting.
Developer shall entirely at its expense:
A. WATER MAIN:
1. Construct, install, furnish, and provide without cost to City, a complete system of water supply and
distribution, throughout the Development, and including off-site Improvements necessary to provide such
system, as approved by the Public Works & Development Director or his designee and Public Works &
Safety Committee and in accordance with the plans and specifications on file in the City Engineering
Department.
2. Apply for and pay for all necessary permits to use water from hydrants for construction permits, as may be
required by the City.
3. Complete to the satisfaction of the City any punch list items concerning the water system prior to
connection of any building to the water system.
B. ROADS AND STREETS:
1. Restore any damage to existing pavement, curb, gutter, and landscaping which may r esult from
construction of required Improvement(s) to a similar condition that existed prior to such damage.
2. Contractors working at the Development are required to clean up all mud, dirt, stone or debris resulting
from the construction of the Development and Improvements 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 C ity Council as
described in Section VII, Final Acceptance. 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 prior to holding the
Developer 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 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 & Development Director or
his designee and Public Works & Safety Committee for storm and surface water drainage throughout the
Development and off-site improvements, as necessary, all in accordance with the plans and specifications
on file in the Engineering Department. The City retains the right to require the Developer to install at
Developer’s cost additional storm drainage and erosion control measures pursuant to Section IV 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 & Development Director or his designee and Public Works & Safety Committee in accordance with
the plans and specifications on file in the City Engineering Department. Restore with topsoil and see d.
Establish dense vegetation.
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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 pla n 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 prior to the granting of occupancy for the
use of any buildings on the Property.
5. Execute and record a Maintenance Agreement as approved by the Public Works & Development 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 on the Property 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.
D. LANDSCAPING:
1. Preserve existing trees on the Property outside of the public right-of-way to the maximum extent possible,
when installing the Development 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.
3. The City has the right to trim and remove any landscaping features 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 so that erosion, siltation,
sedimentation and washing are prevented in accordance with the plans 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. The Developer shall construct, install, furnish and provide without cost to City, a complete system of
erosion control devices or measures in specified areas of the Development, on and off-site, in accordance
with the Erosion Control Plan as approved by the Public Works & Development Director or his designee
and Public Works & Safety Committee and in accordance with the plans and specifications on file in the
City Engineering Department.
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 vegetative cover is
established in the development. Install mulching and seeding of all disturbed areas to comply with
Municipal Code Chapter 162.
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
measures are necessary in order to comply with current laws or are necessary for implementation of the
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original intent of the Improvement plans, the City is authorized to order Developer, at Developer’s expense, to
implement the same. If Developer fails to construct the additional Improvement within a reasonable time under
the circumstances, the City may cause such work to be carried out and shall charge aga inst the financial
guarantee held by the City pursuant to this Agreement. The requirement by the City of such additional
Improvements as set forth herein must not negatively impact the Development or cause or result in the loss of
a lot/unit within the development.
SECTION V: TIME OF COMPLETION OF IMPROVEMENTS
The Improvements set forth in Section III, Improvements, shall be completed by the Developer within one (1)
year from the signing of this Agreement and prior to occupancy of any unit(s)/building(s).
If the City receives notice of the intention to terminate the Bond (as defined herein) prior to completion of all of
the improvements set forth in Section III, Improvements, such notice shall be considered a failure to complete
improvements in accordance with this agreement and shall entitle the City to immediately claim against the
Bond in the manner proscribed therein.
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
reasonable 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 Deposit (as set forth in Section XVIII) 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 acceptanc e of all of the Improvements in the
completed Development as a whole 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)(a m)(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 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 a nd fully dedicate the
water main (excluding those facilities which are to be owned and maintained by the Development 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 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
after the water main 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.
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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 the approval of Developer, which approval
shall not be unreasonably withheld conditioned or delayed.
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. Acceptance shall not occur until after the items listed below have taken place OR if the
City Engineer deems other items relating to the construction of the Development necessary:
1. The water main facilities required to serve the buildings within the Development are connected with an
operational system as required herein, and
2. Stormwater Management Maintenance Agreement have been recorded and a copy of the recorded
documents are delivered to the Public Works & Development Department, and
3. Certification is provided to the Public Works & Development Director or his designee by a Registered Land
Surveyor that all grades conform to the Grading and Erosion Control Plan and the as-built grading plan has
been submitted to the Director of Public Works and Development and he/she has verified all grades meet
City standards.
SECTION IX: 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 (backed up with hourly
breakdowns), expenses and disbursements which shall be incurred by the City prior to and following the date
hereof in connection with or relative to the construction, installation, dedication and acceptance of the
Improvements covered by Section III, including without limitation by reason of enumeration, design,
engineering, preparing, checking and review of designs, plans and specifications, supervision, inspection to
insure that construction is in compliance with the applicable plans, specifications, regulations and ordinances;
and legal, administrative and fiscal work undertaken to assure a nd 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 &
Development Director or his designee necessary for access to and the maintenance and operation of the
Improvements prior to accepting any public improvements and prior to any occupancy being granted for the
use of the building.
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 , if applicable.
Coordination of installation and all costs shall be the responsibility of the Developer.
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5. Permits: Provide and submit to the City upon the City’s request, valid copies of any and all governmental
agency permits.
6. Debris: Have ultimate responsibility for cleaning up debris that has blown from buildings under
construction within the Development until such time as all Improvements have been installed and building
occupancy has been granted. The City shall make a reasonable effort to require the contractor responsible
for the debris to clean up the debris prior to holding the Developer who hired the contractor responsible. The
Developer 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 expense.
7. 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 watermain improvements described in Section III, Improvements, against
defects due to faulty materials or workmanship provided t hat 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 within such one year period. 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 or which arise from the negligent acts or omissions or willful misconduct of the City,
its officers, agents, employees or contractors.
a) Indemnification and 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
construction of the Improvements, 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 Improvements itself) including the loss of use resulting therefrom, but only to the extent
caused by the negligent acts or omissions 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 an employee of
the Developer, its contractors or subcontractors, 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 contractors or subcontractors under
Workers’ Compensation Acts, disability benefit acts, or other employee benefit acts. The foregoing
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indemnity shall not apply to the negligence or willful misconduct of the City or its agents, officers,
contractors or employees.
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 any real
property dedicated or conveyed to the City, if any, 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. The foregoing indemnity shall not apply to the negligence or willful
misconduct of the City or its agents, officers, contractors or employees.
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 written endorsements naming the City as an additional insured, providing 30 days written
notification of cancellation, naming the Developer’s insurance as Primary and Non-Contributory 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
Improvements have been accepted by the City.
SECTION XV: 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.
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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.
4. Make available to the Developer or their nominee, successors or assigns, permits for the occupancy of the
building subject to the provision of Section XVI, Occupancy Permits.
SECTION XVI: OCCUPANCY PERMITS:
It is expressly understood and agreed that no occupancy permit shall be issued for any buildings/units until the
City Engineer or his designee has determined that:
1. All parameters of Plan Commission Resolution #060-2019 has been met to the satisfaction of the
Planning Manager.
2. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Public
Works & Development Director.
3. A bond remains on file to guarantee compliance with any other obligations under the agreement.
4. A Resolution of the dedication and acceptance of Improvements is approved by the City.
5. The Developer is not in default of any aspect of this Agreement.
SECTION XVII: RESERVATION OF RIGHTS AS TO ISSUANCE OF BUILDING PERMITS:
The City reserves the right to withhold issuance of any and all building and/or occupancy permits if Developer
is in violation of this Agreement, but no permits shall be unreasonably withheld.
SECTION XVIII: FINANCIAL GUARANTEES:
1. BOND: Concurrent with the execution of this Agreement by the City, the Developer shall provide to the City
a Bond (the “Bond”), in the City Attorney approved form, setting forth terms and conditions in the amount of
$165,965.11 which amount shall be approximately 120% of the estimated cost of improvements and other
obligations pursuant to this Agreement. This is furnished 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 Agree ment and as a further
guarantee that all obligations to the subcontractors for work on the Improvements is satisfied and all other
obligations pursuant to this Agreement have been satisfied. Instead of a Bond, 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. If at any time:
a) Developer is in default of any aspect of this Agreement, or
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 Bond on file with the City is dated to expire sixty (60) days prior to the expiration of the same if
the same has not been extended, renewed or replaced, per the terms of this Agreement or
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d) The Developer fails to maintain a bond in an amount approved by City Engineer, and in a form
approved by the City Attorney, to pay the costs of Improvements in the Development per the terms
of this Agreement per the terms and conditions contained within the Bond Agreements,
the Developer shall be deemed in violation of this Agreement and the City Council shall have the authority
to draw upon the financial guarantee.
2. Invoices: Invoices documenting public Improvements addressed and not addressed in the Bond, but
attributable to the subject development shall be provided to the City.
3. Reduction of 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 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(2)(am)(1)(c) and no claims have been made against the City or by the City
against the Developer in that regard.
4. DEVELOPER'S DEPOSIT: The Developer shall maintain a $10,000.00 balance in the Developer's Deposit.
No reduction of the Bond amount 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.
5. 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 XIX: 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 XXI, 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 it's staff may approve a specif ic 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.
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SECTION XX: 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 XXI: AMENDMENTS AND ASSIGNMENT:
Developer shall not assign this Agreement prior to completion of the Improvements and Development 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 XXII: 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
To Developer:
Muskego School Apartments, LLC
24 South Brooke Street
Fond du Lac, WI 54935
(920) 922-8170
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 XXIII: RECORDING
This Agreement shall be recorded against the Development property and shall run with the land.
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SECTION XXIV: 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. Muskego School Apartments LLC:
BY WPHD Muskego, LLC, Managing Member
BY WPHD Affordable Ventures, LLC,
Sole Member
BY The Wisconsin Partnership For
Housing Development, Inc., Sole
Member
BY_________________________
ITS______________________
STATE OF WISCONSIN )
SS
______________ COUNTY )
This instrument was acknowledged before me on the _____ day of _________, 2020, by _________, the
_____________ of The Wisconsin Partnership for Housing Development, Inc., the sole member of WPHD
Affordable Ventures, LLC, the sole member of WPHD Muskego, LLC, the managing member of Muskego
School Apartments, LLC.
[Seal] ___________________________________
___________________________________
Notary Public, State of Wisconsin
My commission expires on______________
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MORTGAGEE CONSENT
The undersigned Mortgagees of the Property consent 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.
Mortgagee does not assume any of the obligations or duties of Developer under or with respect to the
Developer’s Agreement unless and until Mortgagee shall have given the City of Muskego written notice that it
has affirmatively exercised its right to complete or cause the completion of construction of the Development. In
the event Mortgagee does not personally undertake to complete construction of the Development, Mortgagee
shall have no liability whatsoever for the performance of any of Developer’s obligations and duties arising
under this Developer’s Agreement.
ASSOCIATED BANK, NATIONAL ASSOCIATION, a national
banking association
By: ___________________________________
Bryan Schreiter, Vice President
STATE OF WISCONSIN )
) SS
______________ COUNTY )
This instrument was acknowledged before me on the _____ day of _________, 2020, by _________, the __ of
Associated Bank, National Association, a national banking association .
[Seal] ___________________________________
___________________________________
Notary Public, State of Wisconsin
My commission expires on______________
COUNTY OF WAUKESHA, a body politic in
the State of Wisconsin
By:____________________________________
Its:___________________________________
STATE OF WISCONSIN )
) SS
______________ COUNTY )
This instrument was acknowledged before me on the _____ day of _________, 2020, by _________, the
_____________ of the County of Waukesha, a body politic in the State of Wisconsin.
[Seal] ___________________________________
___________________________________
Notary Public, State of Wisconsin
My commission expires on______________
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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:
Richard R. Petfalski, Jr., Mayor
BY:
Sharon Mueller, City Clerk-Treasurer
STATE OF WISCONSIN)
SS
WAUKESHA COUNTY )
PERSONALLY came before me this _____ day of ______________,2020, the above named Richard R.
Petfalski, Jr., 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 _____________, 2020.
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 Muskego
School Apartments, Muskego, Wisconsin, as entered into on the ____ day of _____________, 2020 by and
between Muskego School Apartments LLC, and the City of Muskego, pursuant to the authorization by the
Common Council from their meeting on the _____ day of ____________, 2020.
BY THE COMMON COUNCIL
________________________
Sharon Mueller, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This ______day of ___________, 2020.
My commission expires
This instrument drafted by:
Jeffrey J. Warchol, City Attorney
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City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150