CCR2004189.
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AMENDED
COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #189-2004
APPROVAL OF INTERMUNICIPAL AGREEMENT BETWEEN
THE CITY OF MUSKEGO AND THE CITY OF NEW BERLIN
FOR THE CONSTRUCTION OF TESS CORNERS
CREEK NORTH DRAINAGE BASIN
BE IT RESOLVED That the Common Council of the City of Muskego, upon the
recommendation of the Finance Committee, does hereby approve the attached
Intermunicipal Agreement between the City of Muskego and the City of New Berlin for
the Construction of Tess Corners Creek North Drainage Basin contingent on the City of
New Berlin approving the same Agreement at its December 14, 2004 Common Council
meeting.
BE IT FURTHER RESOLVED That the Mayor, in consultation with the City Attorney
and Engineering/Building Inspection Director, may make any necessary technical
changes to the Agreement prior to execution including number of days in Paragraph
NO.1.
BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are authorized to
sign the Agreement in the name of the City if the above contingency is satisfied.
DATED THIS 14th DAY OF DECEMBER, 2004.
SPONSORED BY
FINANCE COMMITTEE
Ald. Nancy Salentine
Ald. Eric Schroeder
Ald. Eileen Madden
Deferred: 11/9/04, 11/23/04
This is to certify that this is a true and accurate copy of Resolution #189-2004 which
was adopted by the Common Council of the City of Muskego.
11/2004jmb
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INTERMUNICIP AL AGREEMENT PER 66.0301 BETWEEN
THE CITY OF MUSKE GO AND THE CITY OF NEW BERLIN
FOR THE CONSTRUCTION OF TESS CORNERS CREEK
NORTH DRAINAGE BASIN
This agreement is made and entered into this
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day of December, 2004 by and
between the City of New Berlin, a Wisconsin municipal corporation with its principal office and
place of business located at 3805 South Casper Drive, New Berlin, Wisconsin, hereinafter
referred to as "New Berlin", and the City of Muskego, a Wisconsin municipal corporation with
its principal office and place of business located at Wl82 S8200 Racine Avenue, Muskego,
Wisconsin, hereinafter referred to as "Muske go" .
WITNESSETH
WHEREAS, stormwater management is an important issue facing all communities in
southeastern Wisconsin and the entire state of Wisconsin; and
WHEREAS, New Berlin and the Muskego, as adjacent communities, believe that joint
stormwater management solutions is an issue of importance for both communities; and
WHEREAS, New Berlin and Muskego share the Tess Comers Creek north branch
drainage basin area; and
WHEREAS, Muskego is experiencing flooding and water quality issues in the Tess
Comers Creek Basin; and
WHEREAS, land in Muskego does not contribute to the stormwater flows into this
facility, but lands in Muskego are affected by stormwater flows generated from this basin.
WHEREAS, New Berlin has and is still experiencing increased demands for development
in the north drainage area requiring extensive stormwater management. If said stormwater is not
effectively controlled it may impact lands within Muskego; and
WHEREAS, New Berlin and Muskego entered into an intermunicipal agreement on
September 25,2001 agreeing to share information as well as to evenly share the cost of the
preparation of the stormwater management plan for the Tess Comers Creek Basin; and
WHEREAS, New Berlin and Muskego have jointly applied for a grant to the Wisconsin
Department of Natural Resources to assist in the cost of the construction and land acquisition of
the Tess Comers Creek Pond; and
WHEREAS, a bid has been received for the construction of the Tess Comers Creek Pond
from C. W. Purpero in the amount of $2,622,081.95; and
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WHEREAS, the estimated costs of land acquisition for construction of said facility is
$2,000,000.00; and
WHEREAS, a proposal for construction inspection services has been received from
Ruekert-Mielke; and
WHEREAS, New Berlin wishes to proceed with the land acquisition and construction of
the pond and related appurtenances to be owned, maintained and operated by New Berlin and
Muskego is willing to contribute certain amounts under the terms and conditions of this
agreement toward the initial capital costs of said project.
NOW, THEREFORE, based upon the mutual promises and covenants set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties do hereby covenant and agree as follows:
1. Within days of execution of this agreement and before any shared costs
are incurred, New Berlin may terminate this agreement upon written notice of the
same given to and received by Muskego.
2. That Muskego and New Berlin agree to continue to pursue a DNR grant for the
construction of the Tess Comers Creek Pond and to take all steps necessary to
effectuate the approval and disbursement of that grant by the DNR. The amount
of any grant obtained shall equally reduce the amounts which may be paid by
Muskego and New Berlin are otherwise obligated to pay pursuant to this
agreement.
3. That New Berlin does hereby agree to pay as they come due, all costs and
expenses of the project including, but not limited to, costs of acquisition of lands
and the construction of the Tess Comers Creek Pond project including but not
limited to permits, costs of construction management and inspection services by
Ruekert-Mielke, land acquisition expenses, appraisals, title insurance, as well as
the construction of improvements set forth in the Bid Specifications for the
project prepared by Ruekert-Mielke dated October 6, 2004, a summary of which
is attached hereto, made a part hereof and marked Exhibit A. The Bid
Specifications document shows a total construction cost amount of$2,622,081.95.
The estimated land acquisition costs are a total of $2,000,000.00. New Berlin
shall have sole control over land acquisition procedures and oversight of the
construction project.
That Muskego does hereby agree to contribute toward the shared costs and
expenses paid by New Berlin as described in this Section ;!3. Muskego will not
share in any costs or expenses outlined in Exhibit B which is attached hereto and
made a part hereof. The costs and expenses outlined in Exhibit B shall solely be
the responsibility of New Berlin.
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Muskego's contributions. Subject to the limitations and qualifications
noted in subsection b below, Muskego shall upon demand pay New Berlin
fifty percent (50%) of the shared costs of the project, at the following
times:
1. Land acquisition costs. Muskego shall pay New Berlin fifty
percent (50%) of the land acquisition costs upon receipt of New
Berlin's certification that all land acquisition procedures have been
completed.
11. Construction Shared Costs. That Muskego agrees to pay New
Berlin's requests f-or fifty percent (50%) of the construction costs
and Ruekert & Mielke's construction management and inspection
fees contemplated hereunder within 30 days of receipt of an
approved pay request from Ruekert & Mielke based upon the
percentage of the work satisfactorily completed.
111. Final payment. Upon Ruekert & Mielke's certification of
completion of the project, Muskego shall, pay to New Berlin fifty
percent (50%) of said shared costs incurred between the last pay
request and the date of final completion.
Limitations and Qualifications to Muskego's on Parties Obligations.
1. Shared costs: Muskego's obligations are limited to contributions
toward the shared costs, which shared costs are less than the actual
costs, and are defined for purposes of this agreement as follows:
(1) Inclusions in shared costs. The costs of land acquisition,
construction costs, permits, construction management and
inspection services by Ruekert & Mielke and land
acquisition expenses, appraisals and title insurance, reduced
by the amounts described in Subsection ;?;3b(i)(2) below.
(2) Exclusions from shared costs. The shared costs shall be
reduced by all of the following, prior to calculating
Muskego's share: The amount of all grants received for the
project and the amount of project costs and expenses set
forth on Exhibit B.
11. Maximum Payment Obligation. Notwithstanding
subsection ~ 3(a.) above, the maximum shared cost
payment obligation that Nev. Berlin Muskego shall have
under this agreement shall be $2,200,000.00 plus those
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costs set forth on Exhibit B $3,200,000.00. If at any time
during the progress payments or at final completion, New
Berlin's Muskego's payments would exceed this maximum
payment obligation, New Berlin Muskego shall reduce its
payment accordingly, to pay only the maximum payment
obligation, and Ne'li Berlin Muskego thereafter shall have
no obligation to contribute toward the shared cost of the
project and Muskego New Berlin shall pay the full
remainder of the shared costs.
111. Reimbursement to Muskego. New Berlin shall reimburse
Muskego in the following circumstances:
(-l-) Lack of timely completion. If for any reaSOR Ruckert
Mielke does not certify completion of the project prior to
June 30, 2007, time being of the essence, Nev.' Berlin shall
reimburse to Muskego all sums paid by Muskego to'tvard
the project, and Muskego shall have no obligation to
contribute to'.vard the costs and expenses of the project
e','en if this exceeds New Berlin's maximum payment
obligation.
(;?; I) Overpayment. In the event Muskego makes any payment
which is subsequently shown to be based upon incorrect
and excessive calculations of the shared costs, due for
example to subsequently received grants or any other
cause, or which results in Muskego' s payments exceeding
the maximum payment obligation, New Berlin shall refund
to Muskego the amount of overpayment.
4. Time for Completion. This project must be completed
by June 30, 2007, and certified as complete by said
date by Ruekert & Mielke, time being of the essence.
The parties agree that the sections of this agreement
as to dispute resolution and arbitration do not apply
if the project is not completed as required by this
section and that Muskego may take legal action for
specific performance or any other legal remedy.
5. All work is to be performed pursuant to the Bid
Specifications in a good and workmanlike manner.
1. That any change orders or increases in land
acquisition costs from the estimate stated herein for
the project shall be jointly reviewed and, if
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appropriate, approved by the partie3, and the costs
for tho3e chargc3 3hall be jointly 3hared by the
partie3, except addition3 or deletions to the items
li3ted in Exhibit B. Any change order or increase in
land acqui3ition C03t after New Berlin ha3 reached it3
maximum 3hared C03t referred to in raragraph 2 herein
3hall be approved or disapproved at the sole
di3crction of HU3kego.
6. The parties acknowledge that New Berlin will serve as the designated
management agency for the construction of this project and will supervise and
administer the construction of the improvements and will be the OWNER for
purposes of the construction and continuing maintenance of said facility.
7. New Berlin shall be solely responsible for 100% of the
maintenance of said facility, and all costs and
expenses of maintenance, as it shall own, operate and
control the facility. New Berlin shall maintain said
facility in a reasonable manner based on maintenance
standards for similar facilities.
8. That Muskego and New Berlin do hereby agree and acknowledge that as
development within the tributary storm water basin occurs, that New Berlin shall
sell capacity allocations in said facility, and any proceeds thereto shall be equally
divided on a 50/50 basis unless Muskego one party pays more than 50% of the
shared cost described in Paragraph ~ 3 and then on a pro rata basis of said shared
cost, except as set forth below:
On a calendar year basis commencing with the year of completion
of the project, New Berlin shall deduct the reasonable costs of
maintenance of the facility referred to in Paragraph é 7 above for
that calendar year to the extent possible and then split the
remaining proceeds for that calendar year and each succeeding
calendar year from sale of capacity with 50% going to New Berlin
and 50% going to Muskego on the basis stated above in Section 1-
8. That said payment shall be made to Muskego within 60 days of
December 31 5t each year.
New Berlin shall be responsible for determining the value of said capacity
allocations on a reasonable basis, and the collection thereof. If New Berlin shall
convey all or any portion of said facility to any third party in the future, the City
of Muske go shall be entitled to 50% of the proceeds of said conveyance unless
Muskego one party pays more than 50% of the shared cost described in Paragraph
~ 3 and then on a pro rata basis of said shared cost and the amount received for
said conveyance shall be determined on a reasonable basis.
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10.
13.
Muskego and New Berlin agree to fully share all current information regarding
this issue and to cooperate fully in the fulfillment of the terms and conditions of
this agreement.
That to the fullest extent permitted by law, each party agrees to indemnify and
hold harmless the other as and against any and all claims, costs, actions, causes of
action, demands or damages (including actual attorney fees) which may be
brought against the indemnified party arising from the negligence, errors,
omissions or intentional conduct of the indemnifying party; however, in no event
shall either party be required to indemnify the other as against the indemnified
party's own negligence or intentional conduct.
11. Administration of the Agreement. As a vehicle for dealing with the technical and
financial details of this agreement, a technical advisory committee shall be
created. This committee shall be composed of a single representative from both
the City of New Berlin and the City of Muskego who shall inform and make
recommendations to the respective governing bodies of their communities on
matters pertinent to the operation of the retention pond. The technical advisory
committee shall be informed of and shall review maintenance and operation of the
pond, development surrounding the pond, as well as the maintenance of any
necessary permits. The T AC shall convene at least annually to review the
operation of the retention pond and during the last year, including the costs of
maintenance and other necessary improvements as provided for hereunder.
12. Books and Records. Each party to this agreement shall keep accurate
books, records and accounts of costs, expenses, expenditures and receipts as they
pertain to this agreement. Upon reasonable notice, either party shall be entitled to
examine any such books and records.
This agreement shall remain in full force and effect for the duration of the
effective life of the facility. The effective life of the facility shall be over when
the facility no longer serves its intended purpose for the City of Muskego, or the
City of New Berlin, or both. This agreement cannot be terminated prior to the
expiration of the effective life of the facility absent the express written consent of
both parties, except as described in Paragraph 1 above.
14. Disputes. At least 30 days before initiating dispute resolution to enforce this
agreement, the party contemplating such dispute resolution shall so notify in
writing the other party and request a meeting to discuss and resolve the matter in
contention. Prior to initiating any dispute resolution, all outstanding charges due
and owing shall be satisfied. The parties receiving such notification shall make
itself available at reasonable times and places for discussions and attempt at
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resolution. The parties represent that they will each make a good faith effort to
resolve any disputes that might arise between them.
15. Arbitration. In the event that an unresolved dispute remains after the discussions
contemplated above resulting from or relating to the contractual elements of this
agreement, arbitration shall be the sole remedy for resolution of this agreement
unless both parties stipulate in writing to seek court relief, or in the event that
either party seeks injunctive relief by a court of competent jurisdiction.
The arbitration shall be determined by a three-person arbitration panel. Each
party shall select one qualified arbitrator to serve on the panel. The two selected
arbitrators shall select the third and final arbitrator. Within 15 days after selection
of the arbitrators, the arbitration proceedings shall commence provided, however,
that the parties may mutually agree to an extension. The written award of the
arbitration panel shall require a minimum of two votes, and the award shall be
limited to the interpretation of this agreement. The parties shall pay their own
professional fees, expert witness fees and out-of-pocket expenses. The party that
does not prevail in the arbitration shall pay the cost of the arbitration, including
the fees of the arbitrator.
This agreement shall be governed and construed in accordance with the laws of the State
of Wisconsin.
This agreement represents the complete understanding of the parties with respect to the
subject matter stated herein and may not be modified except in writing signed by all parties.
In witness whereof, the parties have executed this agreement as of the date first above
written.
CITY OF MUSKEGO
By:
Mark A. Slocomb, Mayor
Janice Moyer, Clerk/Treasurer
CITY OF NEW BERLIN
By:
Telesfore P. Wysocki, Mayor
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Marilyn Gauger, City Clerk
. EXhil"A"
TESS CORNERS CREEK RETENTION POND - REBID
CITY OF NEW BERLIN
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Bid Date: OCTOBER 21, 2004 @ 10:00AM C.W. PURPERO
Item # Item Description Unit Qty. Unlt$ Total
1 Mobilization L.S. 1 $40,000.00 $40,000.00
2 Clearing and Grubbing and Tree Removal L.S. 1 $20,000.00 $20,000.00
3 Site Grading L.S. 1 $1,261,500.00 $1,261,500.00
4 12 inch RCP Class V Outlet Pipe L.F. 250 $34.00 $8,500.00
5 12 inch RCP End Sections EA. 8 $637.00 $5,096.00
6 18 Inch RCP Class IV L.F. 5 $91.00 $455.00
7 18 Inch RCP End Section EA. 2 $700.00 $1,400.00
8 24 Inch RCP Class IV L.F. 185 $48.00 $8,880.00
9 24 Inch RCP End Section EA. 1 $797.00 $797.00
10 23 x 36 Inch RCP Class IV L.F. 70 $78.00 $5,460.00
11 23 x 36 Inch End Section EA. 1 $1,200.00 $1,200.00
12 36 Inch RCP Class IV L.F. 75 $96.00 $7,200.00
13 36 Inch RCP End Section EA. 1 $1,200.00 $1,200.00
14 48 Inch RCP Class IV L.F. 170 $100.00 $17,000.00
15 48 Inch Storm Manhole EA. 1 $2,800.00 $2,800.00
16 72 Inch Storm Manhole EA. 1 $4,500.00 $4,500.00
17 Pond Outlet Concrete Headwall EA. 1 $14,000.00 $14,000.00
18 Pond Skimmer Outlet Structure EA. 2 $10,000.00 $20,000.00
19 Riprap S.Y. 300 $32.00 $9,600.00
20 Erosion Bales EA. 10 $75.00 $750.00
21 Slit Fence L.F. 12,500 $1.15 $14,375.00
22 Cedar WetJand Posts EA. 62 $70.00 $4,340.00
23 Tracking Pad TON 275 $20.00 $5,500.00
24 Articulating Concrete Mat S.F. 41,500 $5.10 $211,650.00
25 Settling Basin L.S. 1 $55,000.00 $55,000.00
26 8 Inch Concrete Shelter Slab w/Footings S.F. 2,500 $12.54 $31,350.00
27 Timber Shelter Allowance L.S. 1 $45,280.00 $45,280.00
28 Asphaltic Concrete Surface Course TON 990 $41.44 $41,025.60
29 Asphaltic Concrete Binder Course TON 1,067 $41.44 $44,216.48
30 Crushed Aggregate Base Coarse TON 9,200 $9.75 $89,700.00
31 2 Inch Service Road Surface Alt. A, B, or C TON 492 $8.34 $4,103.28
32 Crushed Aggregate Base Service Road TON 1,475 $7.85 $11,578.75
33 Park Entrance Sign Allowance LS 1 $1,200.00 $1,200.00
34 Sheet Piling Wall Horz. 550 $231.00 $127,050.00
35 Electrical System L.S. 1 $16,900.00 $16,900.00
Page 1
Ruekert/Mielke
- AccountingDeptlslnlPay Req-Unit.xls (BID_SUM)
. EXhi'lIAII
TESS CORNERS CREEK RETENTION POND - REBID
CITY OF NEW BERLIN
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Bid Date: OCTOBER 21, 2004 @ 10:00AM C.W. PURPERO
Item # Item DescrlpUon Unit Qty. Unit $ Total
36 Geotextile Fabric in Stone Layers S.Y. 4,800 $0.70 $3,360.00
37 NO.1 Clear Stone TON 1,025 $11.64 $11,931.00
38 No.3 Clear Stone TON 1,025 $11.27 $11,551.75
39 4 Inch Gravel Safety Shelf TON 3,400 $10.31 $35,054.00
40 Rock Riffle L.S 1 $3,412.99 $3,412.99
41 Orange Snow Fence L.F. 1,930 $1.62 $3,126.60
42 Curlex III Erosion Control Matting S.F. 22,000 $0.22 $4,840.00
43 Channel Restoration-Bottom Seed S.F. 4,400 $0.19 $836.00
44 Channel Restoration - Side slopes S.F. 33,000 $0.20 $6,600.00
45 Dry Prairie Restoration AC. 2.2 $19,000.00 $41,800.00
46 Moist Prairie Restoration AC. 5.5 $4,000.00 $22,000.00
47 Wet Prairie Restoration AC. 18.5 $3,900.00 $72,150.00
48 Wetland Restoration (Pond Bottom) AC. 37.6 $3,400.00 $127,840.00
49 Temporary Landscape Easement Restoration AC. 39.1 $1,175.00 $45,942.50
50 Permanent Turf Restoration AC. 1.8 $5,600.00 $10,080.00
51 12 inch diameter 7Ibs.lS.F. Coconut Rolls At Stream L.F. 120
Meanders $23.00 $2,760.00
52 River Stone - Stream Bed at Meanders TON 108 $28.00 $3,024.00
53 Chain Link Fencing L.F. 1,955 $20.00 $39,100.00
54a. Red Maple 2 inch caliper Ea. 15 $295.00 $4,425.00
54b. Sugar Maple 3 inch caliper Ea. 15 $410.00 $6,150.00
54c. White Ash 2 inch caliper Ea. 15 $275.00 $4,125.00
54d. Swamp White Oak 3 Inch caliper Ea. 9 $430.00 $3,870.00
54e. White Spruce Tree 6 foot Ea. 19 $290.00 $5,510.00
54f. White Pine Tree 6 foot Ea. 11 $290.00 $3,190.00
54g. River Birch 8 foot Clump Form Tree Ea. 17 $264.00 $4,488.00
54h. Thornless Cockspur Hawthorn 6 foot tree Ea. 9 $254.00 $2,286.00
541. Allegheny Serviceberry 6 foot Clump Form Tree Ea. 12 $295.00 $3,540.00
54j. Black Chokeberry Shrub 3 foot Ea. 75 $36.00 $2,700.00
54k. Redosier Dogwood Shrub 3 foot Ea. 60 $32.00 $1,920.00
541. Shrub Rose-Knockout 18 inch Shrub Ea. 7 $40.00 $280.00
54m. Weigela-Midnight Wine 15 Inch Shrub Ea. 9 $40 .00 $360.00
54n. Daytily-Eenie Weenie 4.5 inch pot perennial Ea. 14 $9.00 $126.00
540. Karl Foerster Grass, 1 gallon pot perennial Ea. 6 $16.00 $96.00
Page 2
RuekertiMielke
- AccoWlûurDeptlslnlPay Req.UDit.xls (BID_SUM)
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. EXhi'"AII
TESS CORNERS CREEK RETENTION POND - REBID
CITY OF NEW BERLIN
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Bid Date: OCTOBER 21, 2004 @ 10:00AM C.W. PURPERO
Item # Item DescrlpUon Unit Qty. Unit $ Total
TOT AL ITEMS 1- $2,622,081.95
ALTERNATE BIDS
MA-1 On-site Fieldstone For Riprap C.Y. 178 $50.00 $8,900.00
MA-2 On Site Field Stone For Articulating Concrete Mat at SF 9750
Fore bay Overflow Weirs $2.75 $26,812.50
MA-3 Annual Highway Mix 40 for Temporary Seed Mix AC 48 $1,350.00 $64,800.00
ADD DEDUCT
MA-4 Cost for revision of contract times for Milestones 1, 2,
and 3. Substantial Completion of these milestones,
April 30, 2005 $0.00 $0.00
. BIDDER'S MULTIPLICATION WAS INCORRECT. THIS BID SUMMARY REFLECTS THE CORRECT TOTAL
Page 3
Ruekert/Mielke
- AccountingDeptlsln\Pay Req-Unit.xis (BID _SUM)
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EXHIBIT "B"
Tess Comers Creek Retention Pond
City of New Berlin Site Improvements Cost Break Down
Bid Fonn Item Cost
26. 8 inch Concrete Shelter Slab = $ 31, 350.00
27. Timber Shelter Allowance = $ 45,280.00
28. Asphaltic Concrete Surface Course
$41,025.60 X 23% (Parking Lot & Gazebo Area) = $ 9,435.89
29. Asphaltic Concrete Surface Course
$44,216.48 X23% (Parking Lot & Gazebo Area) = $ 10, 169.79
30. Crushed Aggregate Base Course
$89,700 X 23% (Parking Lot and Gazebo Area) = $ 20,631.00
33. Park Entrance Sign = $ 1,200.00
35. Electrical System (Gazebo/Parking Lot Lighting) = $ 16,900.00
54a. - 540. Landscaping (Tree's and Shrubs) = $ 43,066.00
Total Construction Costs
(New Berlin Site Improvements)
$ 178,032.68
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COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #189-2004
APPROVAL OF INTERMUNICIPAL AGREEMENT BETWEEN
THE City OF MUSKEGO AND THE CITY OF NEW BERLIN
FOR THE CONSTRUCTION OF TESS CORNERS
CREEK NORTH DRAINAGE BASIN
BE IT RESOLVED That the Common Council of the City 0 uskego, upon the
recommendation of the Finance Committee, does hereb pprove the attached
Intermunicipal Agreement between the City of Muskeg and the City of New Berlin for
the Construction of Tess Corners Creek North Drain e Basin.
BE IT FURTHER RESOLVED That the Mayor, in onsultation with the City Attorney
and Engineering/Building Inspection Director, m m,ake any necessary technical
changes to the Agreement. \.~)
BE IT FURTHER RESOLVED That the Ma r ~~ Clerk-Treasurer are authorized to
sign the Lease Agreement in the name o~.e;ptty.
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DATED THIS DAY OF ,2004.
FINANCE COMMITTEE
Ald. Nancy Salentine
Ald. Eric Schroeder
Ald. Eileen Madden
This is to certify that this is a true and accurate copy of Resolution #189-2004 which
was adopted by the Common Council of the City of Muskego.
Clerk-Treasurer
11/2004jmb