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COMMON COUNCIL -CITY OF MUSKEG0
RESOLUTION #261-2000
APPROVAL OF CONSTRUCTION AGREEMENT AND LETTER OF CREDIT
FOR IMPROVEMENTS ON WOODS ROAD - CANDLEWOOD CREEK
WHEREAS, A Construction Agreement and Letter of Credit have been received from
Candlewood Creek, LLC, the developers of Candlewood Creek Subdivision to begin
construction of improvements on Woods Road prior to approval of the Subdivider's
Agreement, Letter of Credit and Final Plat for the development; and
WHEREAS, The Finance Committee has reviewed the documentation, as attached,
and has recommended approval.
NOW, THEREFORE, BE IT FURTHER RESOLVED That the Common Council of the
City of Muskego, upon the recommendation of the Finance Committee, does hereby
approve the attached Construction Agreement and Letter of Credit for Improvements on
Woods Road relating to the Candlewood Creek Subdivision subject to approval of the
City Attorney and City Engineer
BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are hereby
authorized to sign the necessary documents in the name of the City.
DATED THIS 12TH DAY OF December , 2000
SPONSORED BY:
FINANCE COMMITTEE
Ald. Mark Slocomb
Ald. David Sanders
Ald. Nancy Salentine
This is to certify that this is a true and accurate copy of Resolution #261-2000 which
was adopted by the Common Council of the City of Muskego.
J2/12/00 TUE 10 12 FAX 4'142742728 TOWNE REALTY
Candlewood Creek LLC
facsbrnlle
TRANSMITAL
;., ,w ii;: J;rl ij,'
JAMES W. DOERlNG
ASSISTANT MANAGER
WlSCONSlN DEVELOPMENT
PH: (414) 274-2488
TC: (414) 274-2728
Marshall & Ilsley Bank
0 Commercial Real Eatate 770 NDnh Wal.9 StreeUP.0 Box 2035/Mllwauke. WI 53201.2035rTel414 765-7EOOiFax 414 298-2719
December 12,2000
Clty of Muskego
P. 0.60~ 749
W 182 S8200 Racine Avenue
Muskego, WI 53150-0749
Dear Sirs:
Attached is a “draff of the Letter of Credit that M81 Marshall B !Isley Bank will
be issuing on behalf of the applicant Candlewood Creek LLC for the benefii of
the Ciiy of Muskego.
Vice President
MJF/jm
Attachment
a
0
0 CONSTRUCTION AGREEMENT FOR IMPROVEMENTS IN WOODS ROAD
CANDLEWOOD CREEK LLC -CITY OF MUSKEG0
This Agreement, made this - day of
"Developer") and the City of Muskego. a municipal corporation of the State of Wisconsin, located in Waukesha
, 2000 by and between Candlewood Creek LLC (the
County, (the "City").
WITNESSETH
Durham Drive, to be known as the Candlewood Creek Subdivision (the "Property"), a description of which is
WHEREAS, the Developer proposes to develop lands generally at the northwest corner of Woods Road and
attached hereto as Exhibit A, and
WHEREAS, Section 236.13 of the Wisconsin Statutes provides that as a condition of plat approval, the
governing body of the City may require that the Developer make and install certain public improvements
within the subdivision, to be conditioned upon the construction of said improvements according to municipal
reasonably necessary for a subdivision and further, may require dedication of public streets, alleys or other ways
specifications without cost to said municipality: and
of this Agreement to be made at its expense incidental to the future development of its Subdivision, within Woods
WHEREAS, Developer wishes to cause improvements (the 'Improvements") which are the subject matter
Road right-of-way, and
WHEREAS, Said Improvements must be made at this time prior to the reconstruction of Woods Road, and
Developer proposes to begin construction of certain Improvements within Woods Road right-of-way prior to Final
Ordinance, and
Plat approval by the Common Council, as authorized by Section 18.33(h) of the Muskego Land Division
Commtttee have duly approved, contingent of certain other approvals, Developer's plans and specifications for
WHEREAS, the City's Engineers, the City's Public Works Committee, Public Utility Committee and Finance
Woods Road Improvements. and
THEREFORE, in consideration of the covenants herein contained, the parties hereto agree as follows:
SECTION I : PLATTING
1 Developer has not submitted a Final Plat for approval by the Plan Commission and Common Council of the
City of Muskego. The City retains the right to approve, approve with conditions, or reject the Final Plat of
2. Developer agrees that the execution of this Construction Agreement does not constitute approval of the Final
Candlewood Creek Subdivision.
Plat of any subdivision. Developer agrees that proceeding with the installation of the Improvements is done
entirely at Developer's own risk.
3. Concurrent with the approval of a Final Plat, Developer shall enter into a Developer's Agreement with City,
which shall address the Developer's and City's obligations relating thereto.
SECTION II : IMPROVEMENTS
City shall furnish the Developer such permits or easements as may be required to enter upon and install the
Improvements in any public street or public property. Developer shall entirely at its expense:
A. ROADS AND STREETS:
1 Restore any damage to existing pavement, ditch lines, and culverts which may result from construction of
Improvements. However, no surface course of paving shall be installed within Woods Road as a Dart of this
Agreement - 0 2. Maintain all surface water drainage features throughout construction.
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Construction Agreement
0 E. WATER MAIN.
1 Construct. install, furnish, and provide watermain and related appurtenances, as approved by the City
attached hereto as Exhibit "B
Engineer and the Public Utilities Committee all in accordance with the plans, specifications and drawings
2. Apply for all necessary permits to use water from hydrants for construction purposes, as may be required by
3. Complete, to the satisfaction of the City Engineer, any remaining punch list items concerning the Water
the City.
System prior to the connection of any residence to the water systems.
C. LANDSCAPING:
1 Preserve existing trees whenever practical, when installing the Improvements.
2. Remove and lawfully dispose of destroyed trees, brush, tree trunks, shrubs and other natural growth and all
rubbish.
D. EROSION CONTROL MEASURES:
1 Submit to the City, an application for a Land Disturbing Permit and an Erosion Control Plan in accordance with
the requirements of Section 29.06 of the City's Erosion Control Ordinance. No construction or grading can
2. Install silt fencing in conformance with the approved plans prior to the grading and construction work. Such
begin until said permit is issued by the City.
fences shall be maintained by the Developer until such time as vegetative cover is established. No grading
shall occur without a two (2) day notice to the City.
3. Install Mulching and seeding of all disturbed areas to comply with Municipal Code Chapter 29.
4. Maintain Five Thousand Dollars ($5,000.00) by a Letter of Credit, which shall be retained by the City until 0 the Five Thousand Dollar ($5,000.00) portion of the Letter of Credit is allowable upon verification of fifty
adequate vegetation is established as determined by the City Engineer. A reduction of fifty percent (50%) of
percent (50%) of disturbed areas are vegetated. If, upon a written notification by the City Engineer or Building
the City may utilize the Five Thousand Dollar ($5,000.00) portion of the Letter of Credit to correct the terms of
Inspection Department of non-compliance of Chapter 29, which terms are not corrected within five (5) days,
non-compliance.
E. NECESSITY
All of the Improvements referred to in this Section shall be completed to City standards and specifications. are
being made at the request and expense of the Developer, and are reasonably necessaly to the future development
of the Property. all pursuant to Wisconsin Statute 236.13(2) and other applicable law.
SECTION 111 : TIME OF COMPLETION OF IMPROVEMENTS
The Improvements set forth in Section II above shall be completed by the Developer within 120 days from the date
Developer notifies the City that the work shall begin, but in no event later than Februaly 28. 2001, unless the
reconstruction of Woods Road is delayed for any reason, in which case the City and the Developer shall mutually
agree on an adjusted completion date. If the City receives notice of the intention to terminate the Letter of Credit
prior to completion of the 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.
SECTION IV : AS-BUILT CONSTRUCTION PLANS
dedicated to the City. Developer agrees to reimburse City for all costs incurred in the preparation and distribution
Developer authorizes the City to prepare all necessary as-built construction plans for Improvements to be
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 Account for all charges related hereto. 0
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0 SECTION V : DEDICATION AND ACCEPTANCE OF IMPROVEMENTS
City shall not accept the dedication of the Improvements constructed under the terms of this Agreement unless
and until such Improvements are complete and the City has had a reasonable opportunity to inspect the
Improvements. and the City does accept the same.
SECTION VI : INSPECTION AND ADMINISTRATION FEES
Developer shall pay and reimburse the City in advance of the signing of the Agreement. in accordance with
Section 18.14 of the Land Division Ordinance and Ordinance No. 909, and at times specified herein, but in any
event, no later than thirty (30) days afler 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 lo the construction and installation of
the Improvements covered by Section II, including without limitation by reason of enumeration, design,
that construction is in compliance with the applicable plans, specifications, regulations and ordinances; legal,
engineering, preparing, checking and review of designs, plans and specifications, supervision, inspection to insure
the City in a timely manner may cause the City to cease all construction inspections until such time as all
administrative and fiscal work undertaken to assure and implement such compliance. Failure to pay or reimburse
anticipated or outstanding inspection and administration fees have been satisfied.
SECTION VI1 : GUARANTEES:
The Developer shall guarantee the work against defects due to faulty materials or workmanship provided that such
defects appear within a period of one (1) year from the date of dedication and 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 Vlll : GENERAL INDEMNITY:
In addition to, and not to the exclusion or prejudice of, any provisions of this Agreement or documents incorporated
to accept tender of defense and to defend and pay any and all reasonable legal, accounting, consulting,
herein by reference, Developer shall indemnify and save harmless the City (the "Indemnified Party"), and agrees
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. The Developer shall
also name as additional insured on its general liability insurance the City, its officers, agents, and employees, and
any independent contractors hired by the City to perform service as to the Improvements and give the City
evidence of the same upon request by the City.
a) Hold Harmless. The Developer shall indemnify and hold harmless the City, its officers, agents,
independent contractors, and employees from and against all claims. damages, losses, and expenses,
such claim, damage, loss, or expense is altributable to bodily injury, sickness, disease, or death, or to
including attorney's fees arising out of or resulting from the performance of the Work, provided that any
therefrom, and is caused in whole or in part by any negligent act or omission of the Developer, its officers,
injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting
agents, independent contractors, and employees or anyone for whose acts any of them may be made
liable, regardless of whether or not it is caused in part by the Indemnified Party A claim for
indemnification under this section shall be conditioned upon the Citygiving to the Developer, within thirty
(30) business days of receiving the same, written notice of any such claim made against the City for which
the defense of such claims to the Developer's insurance carrier, In any and all claims against the City. its
indemnification is sought, and if requested to do so by Developer's insurance carrier, the City shall tender
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
limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable
for whose acts any of they may be held liable, the indemnification obligation under this section shall not be
Compensation Acts, disability benefit acts, or other employee benefit acts.
by or for the Developer, its officers, agents, independent contractors, employees under Workers' 0
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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, or employees, it being expressly understood and agreed that in
c) Indemnification for Environmental Contamination. The Developer shall indemnify, defend, and hold CITY
such matters they act as agents and representatives of the City.
and its officers, agents, independent contractors, and employees harmless from any claims, judgments,
that arise as a result of the presence or suspected presence in or on any portion of the Property dedicated
damages, penalties, fines, costs, or loss (including reasonable fees for attorneys, consultants, and experts)
or conveyed to the City by, under, pursuant to, or in connection with the this Agreement (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 Property, whether
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 Property. The City also agrees that upon notification to Developer
that contamination may exist, the City shall make reasonable accommodations to allow Developer to
examine the Property and conduct such clean up operations as may be required by appropriate local,
State, or Federal agencies to comply with applicable laws. The language of this Subsection (c)
notwithstanding, Developer shall have no responsibility pursuant to this Subsection (c) for any
environmental contamination caused by or resulting directly from City activities, or for any environmental
d) Develooer shall. at its exoense. obtain and caw comprehensive aeneral liability insurance with combined
contamination on, in or under the City owned right-of-way which was not a result of Developer's activities.
sinale limits of at least One Million Dollars ($1 .OOO.OOO.OO) for one Derson and at least Five Million Dollars
($5.000.000.00) Der occurrence, and at least One Million Dollars ($1.000.000.00) ProDertv damaae (or
such hiqher amounts as the City shall from time to time deem reasonable). Such Dolicy shall cover both
or chanqe the same without at least ten (10) davs written notice to the City. A certificate of DeveloDer's
DeveloDer and the City and its aqents. emDlovees. and officials. and all insurers shall aqree not to cancel
insurance in the form provided and attached hereto as Exhibit "C" shall be furnished to the City upon
than the City or its aaents shall render the oolicv void as to the City or effect the City's riaht to recover
execution of this Aareement. Each such oolicv shall orovide that no act or default of any oerson other
thereon.
SECTION IX : AGREEMENT FOR BENEFIT OF PURCHASERS:
Not applicable.
SECTION X. CONSTRUCTION PERMITS
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. Cooperate with the Developer in obtaining similar permits, resolutions and documents as may be
necessary from other authorities having jurisdiction in the premises.
3. Not make available to the Developer or their nominee successors or assigns, permits for the construction
of single family residences unless the Final Plat and Developers Agreement have been executed and
recorded. The availability of permits for the construction of single family residences shall be detailed in
the Developers Agreement for Candlewood Creek Subdivision.
SECTION XII. GENERAL CONDITIONS AND REGULATIONS:
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.
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0 SECTION XIII. FINANCIAL GUARANTEES:
1 LETTER OF CREDIT: Prior to the execution of this Agreement by the CITY, the Developer shall file with the
CITY a Letter of Credit setting forth terms and conditions approved by the CITY Attorney in the amount of
$207,150.00 as Security that the required plans, improvements, and approvals will be completed by the
subcontractors for work on the Property are satisfied.
Developer and his subcontractors prior to February 28, 2001. and as further security that all obligations to the
a) 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 at the time of the signing
of this Developer's Agreement.
b) Reduction Of Funds From Letter Of Credit: The Developer shall provide City with a written request to the
work completed for which a release is being requested, breakdown of invoices in format of Public
Finance Committee accompanied by: Request for Amendment to Letter of Credit form, invoices for
approved by the City Engineer
Improvement Cost Breakdown form, lien waives for all work which is subject of release request and fully
2. DEVELOPERS DEPOSIT: The Developer shall maintain a positive balance in the Developer's Deposit
already in place with the City. No release from the Letter of Credit shall be entertained until the Developer's
Finance Committee.
Deposit is satisfied unless otherwise authorized by the Common Council following a recommendation of the
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 upon the Subdivision. 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 Sec. 66.60 (18). Wis. Stats.
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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 XIV. PARTIES BOUND:
Developer or its assignees shall be bound by the terms of this Agreement or any part herein as it applies to the
construction of the Improvements. Approval by the City shall not be deemed a waiver as the ultimate responsibility
of Developer for the proper design and installation of Improvements. 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 Improvements.
SECTION XV. ASSIGNMENT:
Developer shall not assign this Agreement without the written consent of the City.
SECTION XVI. AMENDMENTS:
The City and the Developer, by mutual consent, may amend this Agreement, by written agreement between the
City and the Developer,
SECTION XVll PARTIES TO THE AGREEMENT
their seals to be hereunto affixed in duplicate original counterparts on the date and year first written above.
IN WITNESS HEREOF, Developer has caused this Agreement to be signed by its appropriate officers and
0 A. DEVELOPER: CANDLEWOOD CREEK LLC
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0 By: Town Realty. Inc. Member
By: John W. Kersey, Vice President
STATE OF WISCONSIN ) SS
WAUKESHA COUNTY )
PERSONALLY came before me this __ day of ,2000 to me known to be the person who executed the
foregoing instrument and acknowledged the same.
Notary Public-Slate of Wisconsin
My Commission Expires
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Towne Realty
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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
0
David L. DeAngelis, Mayor
BY.
Jean Marenda. City Clermreasurer
STATE OF WISCONSIN ) SS
WAUKESHA COUNTY )
PERSONALLY came before me this -
and Jean Marenda. City ClerldTreasurer, of the above-named municipal corporation City of Muskego, to me
day of ,2000, the above named David L. DeAngelis, Mayor,
known to be the persons executed the foregoing instrument, and to me known to be such Mayor and City
ClerldTreasurer 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 ,2000.
Notarv PubliGState of Wisconsin a My Commission Expires
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CERTIFICATION
This is to cerlify that the foregoing is a true and correct copy of the Construction Agreement for Candlewood Creek
Subdivision, Muskego. Wisconsin, as entered into on the - day of _, 2000, by and between
day of
and the City Of Muskego, pursuant to the authorization by the Common Council from their meeting on the
,2000.
BY THE COMMON COUNCIL
Jean K. Marenda. CMC
City Clerlulreasurer
SUBSCRIBED AND SWORN TO BEFORE ME
this- day of ,2000.
(Notary Public)
My commission expires
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