CCR2021092-Attachment1
This Agreement, made this ____ day of ________, 2021 by
and between PHW Muskego, Inc. (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 Stair Crest development, a
part of the lands described as:
PARCEL 1: THAT PART OF THE SOUTH EAST QUARTER
OF SECTION TWO (2) IN TOWN FIVE (5) NORTH, RANGE
TWENTY (20) EAST, DESCRIBED AS FOLLOWS:
BEGINNING ON THE QUARTER LINE TEN (10) CHAINS
AND NINETY FIVE (95) LINKS SOUTH OF THE CENTER OF
SAID SECTION TWO (2), AND THENCE RUNNING SOUTH
ON THE QUARTER LINE THREE (3) CHAINS AND NINETY
SEVEN (97) LINKS, THENCE EAST TWO (2) CHAINS AND
FIFTY (50) LINKS; THENCE NORTH PARALLEL TO THE
QUARTER LINE THREE (3) CHAINS AND NINETY SEVEN
(97) LINKS; THENCE WEST TWO (2) CHAINS AND FIFTY (50) LINKS TO THE PLACE OF BEGINNING,
CITY OF MUSKEGO, WAUKESHA COUNTY, WISCONSIN.
PARCEL 2: ALL THAT PART OF THE SOUTHEAST 1/4 OF SECTION 2, TOWNSHIP 5 NORTH, RANGE
20 EAST, IN THE CITY OF MUSKEGO, WAUKESHA COUNTY, WISCONSIN DESCRIBED AS
FOLLOWS, TO-WIT: COMMENCING AT A POINT ON THE NORTH AND SOUTH QUARTER SECTION
LINE, DISTANT SOUTH 984.72 FEET FROM THE CENTER OF THE SAID SECTION, AND THENCE
NORTH 88° 23' EAST ON THE SOUTH LINE OF SCHOOL LANDS AS DESCRIBED IN VOL. 210 OF
DEEDS ON PAGE 226 OF WAUKESHA COUNTY RECORDS, 165.0 FEET TO THE POINT OF
COMMENCEMENT OF THE LANDS HEREIN DESCRIBED. THENCE NORTH 566 FEET ON THE EAST
LINE OF THE SAID LANDS AND SAID LINE EXTENDED TO THE CENTER LINE OF STATE TRUNK
HIGHWAY #24; THENCE NORTH 58° EAST 18.80 FEET ON SAID CENTER LINE; THENCE SOUTH 24°
40' 25" EAST 625.2 FEET; THENCE SOUTH 88° 23' WEST ON FENCE BOUNDARY TO THE POINT OF
COMMENCEMENT.
PARCEL 3: ALL THAT PART OF THE SOUTH EAST ONE QUARTER (SE1/4) OF SECTION NO. 2,
TOWNSHIP NO. 5 NORTH, RANGE NO. 20 EAST, IN THE CITY OF MUSKEGO, WAUKESHA COUNTY,
WISCONSIN, DESCRIBED AS FOLLOWS, TO- WIT: COMMENCING AT A POINT ON THE NORTH AND
SOUTH QUARTER SECTION LINE DISTANT SOUTH 984.72 FEET FROM THE CENTER OF THE SAID
SECTION; AND THENCE NORTH 88° 23' EAST ON THE SOUTH LINE OF EXISTING SCHOOL
GROUNDS OF JOINT SCHOOL DISTRICT NO. 1, 442.0 FEET; THENCE NORTH 24° 46' 25" WEST ON
NORTHEASTERLY LINE OF SAID SCHOOL GROUNDS 625.2 FEET TO THE CENTER LINE OF STATE
TRUNK HIGHWAY "24"; THENCE NORTH 58° 00' EAST ON SAID CENTER LINE 100.0 FEET; THENCE
SOUTH 24° 50' EAST 680.58 FEET; THENCE SOUTH 1° 37' EAST 332.90 FEET; THENCE SOUTH 88°
03' WEST 560.19 FEET TO NORTH-SOUTH QUARTER LINE AFORESAID; THENCE NORTH 336.25
FEET TO THE POINT OF BEGINNING.
Parcel ID # (PIN):
MSKC 2168.961
STAIR CREST
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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PARCEL 4: THE FOLLOWING DESCRIBED REAL ESTATE SITUATED LYING AND BEING IN THE TOWN
NOW CITY OF MUSKEGO, WAUKESHA COUNTY, WISCONSIN; VIZ: COMMENCING AT A POINT IN THE
CENTER OF THE MILWAUKEE AND JANESVILLE PLANK ROAD IN THE NORTH AND SOUTH 1/4 LINE OF
SECTION 2, TOWNSHIP 5 NORTH, RANGE 20 EAST, 7 CHAINS AND 73 LINKS SOUTH OF THE CENTER
1/4 POST OF SAID SECTION 2 AND RUN THENCE SOUTH ON THE 1/4 LINE 3 CHAINS AND 22 LINKS;
THENCE EAST 2 CHAINS AND 50 LINKS; THENCE NORTH PARALLEL WITH 1/4 LINE 4 CHAINS AND 78
LINKS TO THE CENTER OF SAID PLANK ROAD; THENCE ON AND ALONG THE SAME SOUTH 59 3/4
DEGREES WEST, 2 CHAINS AND 95 LINKS TO THE PLACE OF BEGINNING.
EXCEPTING THEREFROM said Parcels 1-4, that part of said parcels which is conveyed IN QUIT CLAIM
DEED RECORDED JULY 21, 1995, REEL 2093, IMAGE 412, AS DOCUMENT NO. 2053587;
AND FURTHER EXCEPTING THEREFROM said Parcels 1-4, those LANDS CONVEYED IN QUIT CLAIM
DEED RECORDED AUGUST 17, 2004 AS DOCUMENT NO. 3195589.
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 Public Works & Development Director 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 #062-2019 and further
modified by Plan Commission Resolution #060-2020, consists of a total of 80 senior independent living
units, 20 assisted living units and 20 memory care units with the features per the referenced resolutions.
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 and roadway work in one phase.
SECTION II : PLATTING/ZONING
1. This Developer’s Agreement addresses the development of land for a senior housing development, all
being under the Provisions of Sections 392 and 400 of the Municipal Code, and under the auspices of the
approved PD - Planned Development District.
2. Developer shall entirely at its expense:
a) Concurrent with the execution of this Agreement tender a Letter of Credit in the amount required herein
for the construction of improvements required by this Agreement. No construction activity, associated
with any publicly dedicated utilities, may commence until this Agreement has been executed and
recorded, and the Letter of Credit has been tendered.
b) 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.
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, sanitary sewer and storm 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 entirely at its expense:
A. 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 & Development 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, 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 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.
B. 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 Director or his designee and Public Works Committee and in
accordance with the plans and specifications on file in the Public Works & Development 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.
C. SANITARY SEWER:
1. Construct, install, furnish, and provide without cost to City, a complete sanitary sewage collection system
throughout the entire Development, and including off-site improvements necessary to connect such system
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to the city’s infrastructure, as approved by the Public Works & Development Director or his designee and
the Public Works & Safety Committee in accordance with the plans, specifications and drawings on file in
the Public Works & Development Department.
2. Complete, to the satisfaction of the Public Works & Development Director or his designee, any remaining
punch list items concerning the Sanitary Sewer System prior to the dedication of any structure to the
sanitary sewer systems.
3. Clean all sanitary sewers in the Development 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 the costs to
complete the televising.
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 Development and off-
site improvements as necessary, all in accordance with the plans and specifications on file in the Public
Works & Development 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 Public Works & Development 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 Public Works & Development Director, or their designee, 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 occupancy 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. LANDSCAPING:
1. Preserve existing trees 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. Plant street trees and site landscaping 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
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Plan dated March 28, 2000 and adopted by the Common Council on July 11, 2000 and in accordance with
street tree and landscape plans on file in the Public Works & Development 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 before the installation of the final course of pavement with the Public
Works & Development Director’s approval of planting schedule.
4. 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.
F. 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 plans and specifications reviewed and
approved by the Public Works & Development Director, the State of Wisconsin Department of Natural
Resources, and Army Corps of Engineers, if applicable.
2. 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 Director or his designee and Public Works Committee and in
accordance with the plans and specifications on file in the Public Works & Development 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 Public Works & Development Director 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 the interest of public safety, are necessary in order to comply
with current laws or are necessary for implementation of the 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 against 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 eighteen
(18) month from the signing of this Agreement or prior to occupancy of any unit(s)/building(s). Temporary
occupancy can be granted and additional time can be allowed for outdoor items to be completed if seasonal
concerns prohibit their completion.
If the City receives notice of the intention to terminate the Letter of Credit or Bond 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 draw against the
Letter of Credit.
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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 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 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
water main, sanitary sewer and storm sewer facilities (excluding those facilities which are to be owned and
maintained by the Stair Crest) 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 storm
sewer, sanitary sewer and water main has been installed, when all said utilities have been completed and
approved by the Public Works & Development Director 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. Acceptance shall not occur until after the items listed below have taken place OR if the
Public Works & Development Director deems other items relating to the construction of the development
necessary:
1. The water, sanitary sewer and surface water drainage facilities required to serve the building are
connected with an operational system as required herein, and
2. Deed Restrictions and the Stormwater Management Maintenance Agreement have been recorded and a
copy of the recorded documents are delivered to the Community Development Department, and
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3. Certification is provided to the Public Works Director or his designee by a Registered Land Surveyor that all
lot grades conform to the Master Grading Plan or the Interim Master Grading Plan and the as-built grading
plan has been submitted to the Director of Public Works 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, expenses and
disbursements which shall be incurred by the City prior to and following the date hereof in connection with or
relative to the construction, installation, dedication and acceptance of the Improvements covered by Section III,
including without limitation by reason of enumeration, design, engineering, preparing, checking and review of
designs, plans and specifications, supervision, inspection to insure that construction is in compliance with the
applicable plans, specifications, regulations and ordinances; and legal, administrative and fiscal work
undertaken to assure and implement such compliance. Failure to pay or reimburse the City in a timely manner
may cause the City to cease all construction inspections until such time as all anticipated or outstanding
inspection and administration fees have been satisfied.
SECTION 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 accepting any public improvements and prior to any occupancy being grated
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 Public Works & Development Director.
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.
6. Removal of Topsoil: The Developer agrees that no topsoil shall be removed from the development
without approval from the Public Works & Development Director of which said approval shall not be
unreasonably withheld.
7. 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 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 Public Works & Development Director. 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.
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.
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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 sewers, stormwater facilities, sanitary sewer and water main
Improvements described in Section III, Improvements, 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 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
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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) per occurrence and at least Five
Million Dollars ($5,000,000.00) aggregate, 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 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: 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 XVI: 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.
4. Make available to the Developer or their nominee, successors or assigns, permits for the construction of
the building subject to the provision of Section XVII, Building and Occupancy Permits.
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SECTION XVII: BUILDING AND OCCUPANCY PERMITS:
It is expressly understood and agreed that no buildings permit shall be issued until the Public Works &
Development Director or his designee has determined that:
1. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Public
Works & Development Director.
2. The Developer is not in default of any aspect of this Agreement.
It is expressly understood and agreed that no occupancy permit shall be issued until the Public Works &
Development Director or his designee has determined that:
1. A letter of credit or bond pursuant to the requirements herein 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 #PC 062-2019 and #PC 060-2020 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 Public
Works & Development Director.
5. The Developer is not in default of any aspect of this Agreement.
SECTION XVIII: 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.
SECTION XIX: 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 $727,632 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 bond, 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) If, the 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 letter of credit or 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 letter of credit in an amount approved by Public Works &
Development Director, and in a form approved by the City Attorney, to pay the costs of
Improvements in the development per the terms of this Agreement,
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 Letter of Credit,
but attributable to the subject development shall be provided to the City.
3. Reduction of Letter of Credit Balance: The Developer shall provide Public Works & Development Director
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 Public Works &
Development Director 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 Public Works & Development Director
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 Public Works & Development Director; 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 $15,000.00 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.
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 XX: 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 XXII, 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 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.
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SECTION XXI: 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 XXII: 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 XXIII: 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:
PHW Muskego, Inc.
2845 Hamline Avenue
Roseville, MN 55113
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 XXIV: RECORDING
This Agreement shall be recorded against the development property and shall run with the land.
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SECTION XXV: 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. PHW Muskego, Inc.:
By: _______________________________
Its: ________________________________
STATE OF WISCONSIN )
SS
WAUKESHA COUNTY )
PERSONALLY came before me this ____day of _____________,2021, ______________________________,
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.
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 ______________,2021, 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 _____________, 2021.
Notary Public-State of Wisconsin
My Commission Expires
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CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Developer's Agreement for Stair Crest,
Muskego, Wisconsin, as entered into on the ____ day of _____________, 2021 by and between
_________________________, and the City of Muskego, pursuant to the authorization by the Common
Council from their meeting on the _____ day of ____________, 2021.
BY THE COMMON COUNCIL
________________________
Sharon Mueller, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This ______day of ___________, 2021.
My commission expires
This instrument drafted by:
Jeffrey J. Warchol, City Attorney
City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150