CCR2003079-
AMENDED
COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #079-2003
APPROVAL OF AGREEMENT BETWEEN THE CITY OF MUSKEGO
AND MUSKEGO-NORWAY SCHOOL DISTRICT
BE IT RESOLVED That the Common Council of the City of Muskego, upon the
recommendation of the Finance Committee, does hereby approve the attached
Agreement between the City of Muskego and the Muskego-Norway School District for
the construction athletic fields contingent upon the parties entering a separate facilities
use agreement.
BE IT FURTHER RESOLVED That the Mayor is authorized to make necessary
technical changes, if needed, in consultation with the City Attorney including but not
limited to amendment to Payment of Construction Costs section of the Agreement as it
relates to the softball fields.
BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are authorized to
sign the Agreement in the name of the City.
- DATED THIS 8TH DAY OF APRIL, 2003.
SPONSORED BY:
FINANCE COMMITTEE
Ald. Rick Petfalski
Ald. Nancy Salentine
Ald. Patrick Patterson
This is to certify that this is a true and accurate copy of Resolution #079-2003 which
was adopted by the Common Council of the City of Muskego.
- /
~þ ,/ 4/03jmb
AGREEMENT
-
THIS AGREEMENT is made and effective as of the
-
day of , 2003, by
and between the MUSKEGO NORWAY SCHOOL DISTRICT (the "District") and the CITY
OF MUSKEGO (the "City").
WIT N E SSE T H:
WHEREAS, the District owns the real property more particularly described on the
attached Exhibit A (the "District Property"), upon which it desires to construct certain athletic
facilities as herein described (the "Facilities"); and
WHEREAS, the City is negotiating to possibly purchase the real property more
particularly described on Exhibit B (the "City Property"); and
WHEREAS, the City desires to contribute to the District a portion of the cost of
constructing the Facilities; and
WHEREAS, the District and the City desire to substitute certain wetlands located on the
City Property for wetlands on the District Property in order to facilitate the construction of the
Facilities; and
- WHEREAS, the District and the City wish to work together and cooperate toward the
construction of the Facilities;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the District and the City agree as follows:
1. Construction of the Facilities. The District shall design and construct the
Facilities described on the attached Exhibit C and Exhibit C-I. Final plans, specifications and
budgets for the Facilities shall be established by the District with the participation of the City in
accordance with Section 3 below.
2. Payment of Construction Costs. The total costs of construction of the Facilities
(including all "hard costs" and third-party "soft costs" (such as architect and designer costs) and
referred to in this Agreement as the "Construction Costs") shall be shared by the District and the
City in the following manner:
(a) The City's share of the Construction Costs incurred in 2003 shall be
37.75%, up to a total contribution in 2003 of$450,000. The City agrees to pay the District
37.75% of the amount of each draw request or other invoice for the Construction Costs that is
received by the District. Such payment shall be made within thirty (30) days after the City's
receipt of the draw request or invoice from the District.
- (b) The City's share of Construction Costs incurred after 2003 shall be
calculated so that the City's share of the total Construction Costs for all years shall be 37.75%;
QBMKE\53649 I 5.4 1
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provided, however, that in no event shall the City's share of all Construction Costs exceed Seven
Hundred Twenty-Six Thousand Seven Hundred Forty-Seven Thousand and 00/100 Dollars
($726,747.00). The City agrees to pay the District 37.75% of the amount of each draw request
or other invoice for the Construction Costs that is received by the District; provided, however,
that at the time of the final draw request the City shall pay the District such amount as is required
so that the City's aggregate contribution equals 37.75% of the sum of all of the Construction
Costs (subject to the overall limit of $726,747,00 for the City's share). All of such payments
shall be made within thirty (30) days after the City's receipt of the draw request or invoice from
the District.
(c) The City recognizes that the estimates ofthe Construction Costs as set
forth in Exhibit C are estimates only and that the Construction Costs may increase or decrease.
In no way shall the City's share of the Construction Costs be increased because the Construction
Costs exceed the estimates in Exhibit C. The District shall provide copies of construction draw
requests and backup documentation if requested by the City to substantiate the Construction
Costs.
3. Cooperation Between the Parties. The District and the City shall cooperate in
good faith at all times during the planning and construction ofthe Facilities. Without limitation,
the parties agree to seek a reasonable consensus on planning and development issues, keeping in
mind the best interests ofthe citizens who will use the Facilities. The District agrees to provide
access to the Facilities site to the City's representatives for the purpose inspecting the progress of
construction; such access and inspection shall be at the City's sole risk and expense.
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4. Use of the Facilities. During the Term, (i) the District shall have first priority
usage ofthe Facilities for all of its scheduled activities, and (ii) the City shall have second
priority usage for those times not being actively used by the District; provided, however, that the
City shall be guaranteed a minimum of37.75% of total programming usage time (averaged over
the calendar year). Subject to the District's usage for scheduled activities, the City shall have a
right to a minimum of37.75% of usage of the Facilities for City activities, including seasonal
activities, during the times that such activities would normally take place. The District shall
provide the City with the District's seasonal activities schedule (showing which Facilities will be
used) in order to help reduce scheduling conflicts. The City shall then have the right to reserve
available Facilities upon not less than thirty (30) days advance written notification to the
Superintendent of the District. The Superintendent of the District shall confirm the City's
reservation by written notification to the City Parks and Recreation Department not more than
seven (7) days after receipt of the reservation request from the City. Disputes related to use of
the Facilities shall be resolved pursuant to Section 20 below.
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5. Maintenance and Operating Costs of the Facilities. The parties agree that there
shall be shared responsibility for the ongoing maintenance and repair ofthe Facilities, to be
defined in a separate facilities use agreement with staff from the District and the City.
Maintenance and operating costs shall include the costs of routine landscaping and yard
maintenance, utilities, garbage collection and disposal, irrigation of fields, janitorial service of
the restroom facilities only, reconditioning of the fields, bleachers, lights and structures, and
maintenance and repair of the Facilities as necessary.
QBMKE\53649J 5.4 2
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6. Wetlands Mitigation. The District and the City acknowledge that both the District
Property and the City Property contain portions that are wetlands. If the City acquires the City
Property, then the City agrees to cooperate with the District in good faith efforts to designate
wetlands on the City Property that will remain as undeveloped wetlands so that the District can
construct the Facilities on the District Property (including filling in wetlands on the District
Property ifpermitted by the Wisconsin Department of Natural Resources). If the City does not
acquire the City Property, or if the parties cannot so designate wetlands on the City Property, the
District and the City shall act in good faith to modify the plans for the Facilities.
7. Indemnification. The District and the City each hereby agrees to indemnify the
other party hereto, and its officers, employees, officials and agents, from and against any and all
claims, losses, damages and costs arising out of the breach of this Agreement by the
indemnifying party or the indemnifying party's negligent acts or omissions related to its use of
the Facilities.
8. Default. Should either party fail to carry out this Agreement, the other party shall
be entitled to exercise any and all available rights and remedies at law or in equity.
9. Assignment. Neither the District nor the City may assign its interest under this
Agreement without the other party's prior written consent, which may be granted or withheld in
such party's sole reasonable discretion.
-
10. No Warranties or Representations. The District makes no representations or
warranties whatsoever about the Facilities, the safety thereof, their fitness for a particular
purpose or any other aspect ofthe Facilities.
11. Notices. All notices permitted or required by this Agreement shall be given in
writing and shall be considered given upon receipt ifhand delivered to the party or person
intended, or upon facsimile transmission to the fax numbers set forth herein, or one business day
after deposit with a nationally recognized overnight commercial courier service, air bill prepaid,
or three (3) business days after deposit in the United States mail, postage prepaid, by certified
mail, return receipt requested, addressed by name and address to the party or person intended as
follows:
To the District: Muskego Norway School District
S87 WI8763 Woods Road
Muskego, WI 53150
Attn: Superintendent
Fax No.: 262-679-5790
To the City: City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
Attn:
Fax No.: 262-679-4106
-
QBMKE\5364915.4 3
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12. Governing Law. This Agreement concerns real property located in the State of
Wisconsin, and shall be interpreted and construed according to the laws of the State of
Wisconsin.
13. Severability of Provisions. If any ofthe terms or conditions contained herein
shall be declared to be invalid or unenforceable by a court of competent jurisdiction, then the
remaining provisions and conditions of this Agreement, or the application of such to persons or
circumstances other than those to which it is declared invalid or unenforceable, shall not be
affected thereby and shall remain in full force and effect and shall be valid and enforceable to the
full extent permitted by law.
14. Captions. The captions in this Agreement are inserted only as matters of
convenience and for reference and in no way define or limit the scope or intent of the various
provisions, terms or conditions hereof.
15. Binding Effect. The terms and conditions of this Agreement shall be binding
upon and benefit the parties hereto and their respective successors and permitted assigns.
16. Entire Agreement. This writing constitutes the entire agreement between the
parties hereto, and all prior statements, letters of intent, representations and offers, if any, are
hereby terminated. This Agreement may be modified or amended only by written instrument
signed by both parties.
,-
17. Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed an original.
18. Representations as to Authority. Each party to this Agreement represents and
warrants that: (a) it has the power and authority to consummate the transactions contemplated by
this Agreement; (b) all proceedings necessary for it to consummate the transactions
contemplated by this Agreement have been duly taken in accordance with law; and (c) the
persons executing this Agreement on behalf of it have been duly authorized to execute this
Agreement.
19. Fax Signatures. The parties agree that fax signatures shall be binding on the
parties hereto.
20. Dispute Resolution. In the event of a dispute between the District and the City
arising out of this Agreement or the use of the Facilities, the District and the City agree to
attempt to resolve such dispute through mediation. In the event that the District and the City
cannot agree upon a mediator, they shall each propose a qualified mediator, and such qualified
mediators shall choose a qualified third-party who will mediate the dispute. In the event that
mediation does not resolve the dispute, the District and the City agree to submit the matter to
binding arbitration. Such arbitration shall be conducted in accordance with the then-current rules
for commercial arbitration of the American Arbitration Association. The arbitration shall be
before one arbitrator who is chosen in accordance with the American Arbitration Association
procedures. The arbitrator's decision in the dispute shall be binding.
-
QBMKE\5364915.4 4
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.-.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
MUSKEGO NORWAY SCHOOL DISTRICT
By:
Print Name:
Title:
CITY OF MUSKEGO
By:
Print Name:
Title:
QBMKE\5364915.4 5
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Exhibit" A"
Joint Athletic Agreement
(Muskego-Norway Lands)
".....
Being part of the Northeast ~, of the Northeast ~ of Section 20,
Town 5 north, Range 20 East, in the City of Muskego, Waukesha
County, Wisconsin, bounded and described as follows:
Commencing at the Northeast corner of the Northeast ~ of said
Section 20; thence SOlO01'37"E along the East line of the
Northeast ~ of said Section 20 a distance of 33.001 feet, to the
South right-of-way line of Woods Road, said point also being the
point of beginning of lands to be described; thence continuing
SOlO01'37" E along said East line 1299.124 feet, to the South
line of the North ~ of the Northeast ~ of said Section 20;
thence SSS027'45"W along said South line 1343.995 feet, to the
West line of the East ~ of the Northeast ~ of said Section 20;
thence NOI021'19"W along said West line 1301.975 feet to the
South right-of-way line of said Woods Road; thence N8S035'07"E
along said South line 1351.436 feet to the point of beginning.
Containing 1,752,739.30 sq. ft. (40.24 acres) of land more or
less.
,.....
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Exhibit "A"
Page 2
Joint Athletic Agreement
Muskego-Norway
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Exhibit "B"
Joint Athletic Agreement
(Engel -Ewald Lands)
Being part of the Northeast ~, Northwest ~, Southwest ~, and
Southeast ~ of Section 20, Town 5 north, Range 20 East, in the
City of Muskego, Waukesha County, Wisconsin, bounded and
described as follows:
Commencing at the Northwest corner of the Southeast ~ of said
Section 20; thence N 88020'19" E along the North line of said
Southeast ~ 668.18 feet, to the point of beginning of lands to
be described; thence S 01044'57" E 1327.70 feet to the South
line of the Northwest ~ of said Southeast ~; thence S 88021'42"
W along said South line 672.58 feet, to the Southwest corner of
the Northwest ~ of said Southeast ~; thence S 88020'46" W, along
the South line of the Northeast ~ of the Southwest ~ of said
Section 20, 1007.72 feet; thence N 01032'10" W 1328.42 feet to
the South line of the Northwest ~ of said Section 20; thence S
88024'10" W, along said South line 671.45 feet; thence N
01039'48" W 1336.39 feet to the North line of the Southwest ~ of
said Northwest ~; thence N 88021'08" E, along the North line of
the Southwest ~, and Southeast ~ of said Northwest ~, 1678.18
feet, to the West line of the Northeast ~ of said Section 20;
thence N 88027'46" E, along the North line of the Southwest ~ of
said Northeast ~/ 1344.00 feet, to the Northeast corner of the
Southwest ~ of said Northeast ~; thence S 01021'06" E, along the
East line of the Southwest ~ of said Northeast ~, 1318.48 feet;
thence S 880 20'19" W 668.14 feet; thence S 01031'09" 16.50
feet, to the point of beginning, Excepting the Southerly 40.00
feet for road purposes, containing 6,184,812.21 sq. ft. (141.98
acres) more or less, exclusive of right-of-way.
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Exhibit "8"
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Joint Atheltìc Agreement
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EXHIBIT C
Facilities
1. Facilities expected to be constructed in 2003:
(a)
(b)
(c)
(d)
(e)
2.
(a)
(b)
(c)
-
(d)
(e)
One (1) Varsity Soccer Field (estimated cost of $191 ,500);
One (1) Junior Varsity Soccer Field (estimated cost of$32,500);
Two (2) Football Practice Fields (estimated cost of$93,150);
One (1) Building (estimated cost of $200,000)
Infrastructure (estimated cost of $766,850)
Facilities expected to be constructed in 20041:
One (1) Freshman Soccer Field (estimated cost of $95,300)
One (1 ) Varsity Hardball Field (estimated cost of $194,500)
One (1) Junior Varsity Hardball Field (estimated cost of$139,850)
One (1) Softball Field ($137,850)
Miscellaneous Equipment ($73,900)
- I If the mitigation of the wetlands is not complete by year 2004, then the Softball Field will not be constructed until
such time as mitigation of the wetlands is complete or until the parties decide otherwise.
QBMKE\5364915.4 8
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Exhibit "C-1"
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UNPLATTED LANDS
Joint Atheltic Agreement
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C-2
COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #079-2003
-
APPROVAL OF AGREEMENT BETWEEN THE CITY OF MUSKEGO
AND MUSKEGO-NORWA Y SCHOOL DISTRICT
BE IT RESOLVED That the Common Council of tþe City of Muskego, upon the
recommendation of the Finance Committee, doe} her.eby approve the attached
Agreement between the City of Muskego ard t ~usìego-Norway School District for
the construction athletic fields contingent uP,o th, e,,'~afties entering a separate facilities
use agreement. i
"
BE IT FURTHER RESOLVED That the M yor~s.authorized to make necessary
technical changes, if needed, in consult ion l\th the City Attorney.
ì, " BE IT FURTHER RESOLVED That t Ma~~ and Clerk-Treasurer are authorized to
sign the Agreement in the name of t e CitY,i
".
, ji
DATED THIS
I "\
DAY OF /.~ ! \' I
J
.
,/
í
,2003.
- SPONSORED BY:
;
.I
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\ '
"",;'.)'
FINANCE COMMITTEE
Ald. Rick Petfalski
Ald. Nancy Salentine
Ald. Patrick Patterson
This is to certify that this is a true and accurate copy of Resolution #079-2003 which
was adopted by the Common Council of the City of Muskego.
Clerk-Treasurer
4/03jmb
"",....