CCR2013060-Belle Chasse-Subdivider Agreement Amendment
COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #060-2013
APPROVAL OF UPDATED SUBDIVIDER’S AGREEMENT & PLAT
Belle Chasse Subdivision Phase #2
WHEREAS, The Subdivider’s Agreement for the Belle Chasse Subdivision Phase #2 was
approved by Council per Resolution #023-2013 and the original plat was approved by Council
per Resolution #099-2007; and
WHEREAS, Non-substantial amendments are required to the originally approved Subdivider’s
Agreement and Preliminary Plat; and
WHEREAS, The developers of Belle Chasse Phase 2 require the amendments as new
wetlands were found when preparing the Phase 2 plat and said wetlands require the changing
of the originally approved lot lines and construction plans; and
WHEREAS, Said amendments include changing the lot count from the originally approved 43
lots to 39 lots and various amendments to the Subdivider’s Agreement to change new dates of
Public Works Committee construction plan approvals; and
WHEREAS, Said amendments also include breaking up the actual construction of the Phase 2
lots into two separate sub phases (22 lots per this new agreement attached and 17 lots for a
future agreement to be approved by Council) in order to expedite construction; and
WHEREAS, The Public Works Committee approved said changes at their June 17, 2013
meeting.
NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego
does hereby approve the updated Subdivider’s Agreement and plat the Belle Chasse
Subdivision Phase 2, subject to approval of the City Attorney and all objecting and approving
agencies, and receipt of all fees as provided in Section 18.14 of the Land Division Ordinance.
BE IT FURTHER RESOLVED That this Subdivider’s Agreement replaces the Subdivider’s
Agreement approved by Council under Resolution #023-2013.
BE IT FURTHER RESOLVED The Public Works Committee approved the amendments at their
June 17, 2013 meeting subject to the developer providing traffic calming devices for future PW
Committee review and approval before installation.
BE IT FURTHER RESOLVED That all of said approvals for the Subdivider’s Agreement be
obtained within thirty (30) days of the date of approval of this Resolution or the same will be
null and void.
BE IT FURTHER RESOLVED Subdivider and City agree that this agreement is for the
installation of public and private improvements for Phase 2 (sub phase known as “South” in the
attached Developer’s Agreement) of the Belle Chasse development and new Developer’s
Agreements must be approved by the City before Phase 2 “North” and Phase 3 are
constructed.
BE IT FURTHER RESOLVED The City will re-review the improvements required for
subsequent phases and future upgrades to improvements may be required for future phases
depending on the impacts and the timing of the phases.
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BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are hereby authorized to
sign the necessary documents in the name of the City, and that the Mayor, in consultation with
the City Attorney, may make any necessary technical corrections.
TH
DATED THIS 25 DAY OF JUNE , 2013.
SPONSORED BY:
PUBLIC WORKS COMMITTEE
This is to certify that this is a true and accurate copy of Resolution #060-2013 which was
adopted by the Common Council of the City of Muskego.
Clerk-Treasurer
Reso. #060-2013
BELLE CHASSE LLC - CITY OF MUSKEGO
BELLE CHASSE PHASE #2 SOUTH SUBDIVIDER'S AGREEMENT
This Agreement, made this _____ day of ______, 2013 by and between Belle Chasse
Partners LLC, (the "Subdivider") and the City of Muskego, a municipal corporation of the State
of Wisconsin, located in Waukesha County, (the "City").
W I T N E S S E T H
WHEREAS, the Subdivider has submitted for approval by the City the Preliminary Plat
for the Belle Chasse Subdivision (the “Subdivision”), a part of the lands described as:
LEGAL DESCRIPTION FOR LANDS LYING TO THE WEST OF DURHAM DRIVE:
All of Parcel 1 and Parcel 2 of Certified Survey Map No. 1524 together with unplatted lands, all of which are located
in part of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) and the Southwest Quarter (SW 1/4)
of the Southeast Quarter (SE 1/4) of Section 11, Township 5 North, Range 20 East, in the City of Muskego,
Waukesha County Wisconsin; being more particularly described as follows: Commencing at the Southwest corner
of the Southeast Quarter (SE 1/4); thence North 01°06'07" West along the West line of the Southeast Quarter (SE
1/4) 25.00 feet to the point of beginning of the lands hereinafter to be described; thence North 87°50'16" East along
a line parallel to and 25.00 feet North of the South line of the Southeast Quarter (SE 1/4) 1138.82 feet; thence North
47°24'44" West 200.06 feet to the beginning of a curve of radius 333.00 feet, the center of which lies to the East;
thence Northerly along the arc of said curve 147.64 feet, the chord of which bears North 34°42'40" West 146.43
feet; thence South 87°50'16" West 197.38 feet; thence North 02°09'44" West 106.07 feet; thence North 87°50'16"
East 175.83 feet; thence North 09°21'41" West 941.34 feet to the South line of Certified Survey Map No. 9347;
thence South 87°48'47" West along the said South line 467.90 feet to the West line of said Certified Survey Map
9347; thence North 07°00'43" West along the said West line 1.55 feet to the South one sixteenth (S 1/16) line of the
Southeast Quarter (SE 1/4); thence South 87°49'02" West along the said (S 1/16) line 286.25 feet to the South one
quarter (S 1/4) line; thence South 87°58'00" West along the South one sixteenth (S 1/16) line of the Southwest
Quarter (SW 1/4) 1313.27 feet to the East right-of-way line of Mystic Drive; thence South 01°07'40" East along the
said right-of-way line 1301.95 feet; thence North 88°07'53" East along a line parallel to and 25.00 feet North of the
South line of the Southwest Quarter (SW 1/4) 1312.62 feet to the point of beginning, containing 64.7969 Acres,
LEGAL DESCRIPTION FOR THE LANDS LYING TO THE EAST OF DURHAM DRIVE:
All that part of the Southeast Quarter (SE 1/4) and the Southwest Quarter (SW 1/4) of the Southeast Quarter (SE
1/4) of Section 11, Township 5 North, Range 20 East, in the City of Muskego, Waukesha County Wisconsin; being
more particularly described as follows: Commencing at the Southeast corner of the Southeast Quarter (SE 1/4);
thence North 01°19'37" West along the East line of the Southeast Quarter (SE 1/4) 25.00 feet to the point of
beginning of the lands hereinafter to be described; thence South 87°50'16" West along a line parallel to and 25.00
feet North of the South line of the Southeast Quarter (SE 1/4) 768.68 feet to the East line of Certified Survey Map
No. 1550; thence North 01°18'22" West along the said East line 281.36 feet to the North line of said Certified
Survey Map; thence South 87°50'16" West along the said North line 934.49 feet to the beginning of a curve of
radius 267.00 feet, the center of which lies to the East; thence Northerly along the arc of said curve 64.66 feet, the
chord of which bears North 16°17'56" West 64.50 feet; thence North 09°21'41" West 934.70 feet to the South right-
of-way line of McShane Drive; thence North 87°46'18" East along said right-of-way line 726.15 feet to the West line
of Certified Survey Map No. 5998; thence South 02°13'42" East along said West line 182.00 feet to the South line of
said Certified Survey Map 5998; thence North 87°46'18" East along the said South line 450.00 feet to the East line
of Said Certified Survey Map 5998; thence North 02°13'42" West along the said East line 182.00 feet to the said
South right-of-way line of McShane Drive; thence North 87°46'18" East along the said right-of-way line 674.28 feet
to the East line of the Southeast Quarter (SE 1/4); thence South 01°19'37" East along the said East line 1273.47
feet to the point of beginning, containing 43.5895 Acres, 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 Subdivider make and install
certain public improvements reasonably necessary for the Subdivision and further, may require
dedication of public streets, alleys or other ways within the Subdivision, to be conditioned upon
the construction of said improvements according to municipal specifications without cost to
said municipality; and
WHEREAS, The City's Engineers, the City's Public Works Committee, Public Utility Committee
and Finance Committee have duly approved, contingent on certain other approvals,
Subdivider's
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plans and specifications for subdivision improvements, and
WHEREAS, The City's Plan Commission and Common Council have duly approved the
preliminary plat of the Belle Chasse Subdivision and as per Section 18.31(2)e of the Muskego
Chapter 18 Land Division ordinance, the developer wishes to start improvements for the
subdivision before the approval of the final plat.
WHEREAS, Starting improvements before Final Plat approvals from the Council is permitted
as long as: Approval is found of the construction plans by the Public Works Director, the Public
Works Committee and the Public Utilities Committee; A Developer’s Agreement agreeing to
install the required improvements is approved and recorded between the Subdivider and City;
and, a letter of credit, cash or certified check meeting the approval of the City Attorney in an
amount equal to the estimated cost of the improvements is given.
NOW, THEREFORE, In consideration of the covenants herein contained, the parties hereto
agree as follows:
SECTION I : PHASING
1. Subdivider and City agree that this agreement is for the installation of public and private
improvements described in Section III for Phase 2 (South) of the Belle Chasse
development, which consists 19 lots. A new Developer’s Agreement must be approved by
the City before Phase 2 (North) and Phase 3 is constructed. The City will re-review the
improvements required for subsequent phases. Future upgrades to improvements may be
required for future phases depending on the impacts and the timing of the phase.
SECTION II : PLATTING
1. This Subdivider’s Agreement addresses the development of 19 lots for single family
residential use, all being under the Provisions of Chapters 17 and 18 of the Municipal
Code, and under the auspices of RS-2 Suburban Residence District as modified by the PD
Planned Development zoning.
a) Single-family parcels shall conform to the zoning requirements of an RS-2 Suburban
Residence District as modified by the PD Planned Development zoning. The PD
zoning is allowed per Common Council approval and the PD can permit flexibility in the
underlying zoning requirements. The Belle Chasse PD allowed increased densities
resulting in parcels generally being a minimum of 18,000 square feet in area, 100 feet
in average lot width, having street yard setbacks of 40 feet, side yard offsets of 15 feet
on one side and 20 feet on all other sides.
b) Outlots shall be reserved for open space management and stormwater purposes
consistent with PD Planned Development overlay zoning requirements, and shall be
owned and maintained by Owners Associations established by Subdivider. Outlots 2,
3, 6, and 8 will be required to have a Conservation Easement governing them at Final
Plat time. The Conservation Easement will allow the City the ability and right to
manage the lands subject to preservation restrictions.
2. Subdivider shall entirely at its expense:
a) As per Section 18.31(2)d of the Muskego Chapter 18 Land Division ordinance, have
the Belle Chasse Phase 2 Final Plat submitted and approved. The Subdivider shall
cause the Final Plat of Belle Chasse to be executed and recorded, and shall provide
City with evidence of recording. Note: The Final Plat cannot be approved until after the
acceptance of improvements found in Section VI of this agreement to ensure that no
lots are sold until said acceptance is complete.
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b) Concurrent with the execution of this Agreement tender an Irrevocable Standby Letter
of Credit in the amount required herein for the construction of improvements required
by this Agreement. No construction activity may commence until this Agreement has
been executed and recorded, and the Letter of Credit has been tendered.
c) Provide the City with title evidence showing that upon recording the Final Plat, the City
will have good, indefeasible title to all interests in land dedicated or conveyed to the
City by the Plat.
d) Before any improvements found in Section III of this agreement begin, the Subdivider
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.
e) Place and install monuments required by State Statute or City Ordinance.
SECTION III : IMPROVEMENTS
Subdivider 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 on June 17, 2013 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
Director or his designee and Public Works Committee as indicated in the plans and
specifications on file with the Engineering and Building 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. Pay the city $27,200.65 for the costs to upgrade Durham Road as well as $13,200 for the
costs to upgrade the intersection of Mystic Road and Woods Road as agreed on February
18, 2013. Said funds are due at the closing of the Final Plat before the city will sign off on
the Final Plat.
B. STORM AND SURFACE WATER DRAINAGE AND MASTER GRADING PLAN:
1. Construct, install, furnish and provide facilities as approved by the Public Works Director or
his designee and Public Works Committee on June 17, 2013 for storm and surface water
drainage throughout the entire Subdivision and off site improvements as necessary, and a
Master Grading Plan providing for sump pump discharge to a tile or storm sewer system, all
in accordance with the plans and specifications on file in the Building and Engineering
Department. The City retains the right to require the Subdivider to install at Subdivider’s
cost additional storm drainage and erosion control measures prior to acceptance of
improvements by the City of Muskego.
2. Grade and improve all lots, on and off site, in conformance with the Master Grading Plan
as approved by the Public Works Director or his designee and Public Works Committee on
June 17, 2013 all in accordance with the plans and specifications on file in the City
Building and Engineering Department. Restore with topsoil and seed. Establish dense
vegetation.
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3. Clean all Storm Sewers prior to acceptance of improvements and the issuance of building
permits by the City.
4. Execute and record a Maintenance Agreement in the form attached hereto, which
document shall be incorporated herein and made part hereof, as approved by the Public
Works Director or his designee and Public Works Committee on June 17, 2013 relating to
privately owned storm water appurtenances, and provide proof of recording prior to sale of
lots in the Subdivision. 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.
C. SANITARY SEWER:
1. Construct, install, furnish, and provide without cost to City, a complete sanitary sewage
collection system throughout the entire Subdivision, and including off site improvements
necessary to provide such system, as approved by the Public Works Director or his
designee and the Public Utilities Committee on June 17, 2013 all in accordance with the
plans, specifications and drawings on file in the City Building and Engineering Department.
2. Complete, to the satisfaction of the Public Works Director or his designee, any remaining
punch list items concerning the Sanitary Sewer System prior to the connection of any
structure to the sanitary sewer systems.
3. Televise the sanitary sewer system, repair any defects as determined by the Public Works
Director or his designee, and supply video tape to the City of Muskego, and clean all sewer
lines prior to the issuance of building permits, and acceptance of improvements by the City.
4. City to reimburse the Developer in the amount of $13,650 for the oversizing of the sanitary
sewer main for the development along with an additional $18,760 for main and manhole.
Said amount to offset the Developer’s obligation in Section III, A4 above. Developer to pay
net balance to City prior to recording of the Final Plat.
D. WATER MAIN:
1. Construct, install, furnish, and provide without cost to City, a complete system of water
supply and distribution, throughout the entire Subdivision, and including off site
improvements necessary to provide such system, as approved by the Public Works
Director or his designee and Public Utilities Committee on June 17, 2013 and in
accordance with the plans and specifications on file in the City Building and Engineering
Department.
2. Apply 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.
E. LANDSCAPING:
1. Preserve existing trees outside of the public right-of-way to the maximum extent possible,
when installing the Subdivision 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.
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3. Plant street trees without cost to City in accordance with Section 18.60 of the Muskego
Land Division Ordinance and the adopted Urban Forestry Management Plan and Urban
Forestry Strategic Plan dated March 28, 2000 and adopted by the Common Council on
July 11, 2000 and in accordance with street tree and landscape plans that will be approved
by the
Community Development Director and City Forester at the time of recording the Final Plat.
Planting may be deferred until the time that ninety percent (90%) of the homes have been
completed or twenty-four (24) months after the date of acceptance of improvements,
whichever comes first.
F. EROSION CONTROL MEASURES:
1. Submit to the City, an application for a Land Disturbing Permit in accordance with the
Erosion Control Plan as approved in accordance with the requirements of Section 29.06 of
the City's Erosion Control Ordinance by the Public Works Director or his designee and
Public Works Committee on June 18, 2007 and in accordance with the plans and
specifications on file in the Building and Engineering Department.
2. Construct, install, furnish and provide without cost to City, a complete system of Erosion
Control Devices or measures in specified areas of the Subdivision, 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 on June 18, 2007 and in accordance with the plans
and specifications on file in the City Building and Engineering Department. No construction
or grading can begin until the City issues said permit, and no grading shall occur without a
two (2) day notice to the City.
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 Subdivider until
such time as vegetative cover is established in the Subdivision. Install mulching and
seeding of all disturbed areas to comply with Municipal Code Chapter 29.
SECTION IV : TIME OF COMPLETION OF IMPROVEMENTS
The improvements set forth in Section III, except for final surface course of pavement as
described herein, shall be completed by the Subdivider within one (1) year from the signing of
this Agreement except if an earlier date is provided for in the Agreement. The final surface
course of pavement may be deferred until ninety percent (90%) of the homes have been
substantially completed, or twenty-four (24) months after the date of acceptance of
improvements, whichever comes first.
If the final surface course of pavement, is not completed within twelve (12) months of the date
of this Agreement, the Subdivider shall extend the Letter of Credit in a form acceptable to the
City until such time as the final surface course of pavement is completed.
If the City receives notice of the intention to terminate the Letter of Credit prior to completion of
the final surface course pavement, 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 V : AS-BUILT CONSTRUCTION PLANS
Subdivider authorizes the City to prepare all necessary as-built construction plans for
improvements to be dedicated to the City. Subdivider agrees to reimburse City for all costs
incurred in the preparation and distribution of as-built data, including collection of data,
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revisions to construction documents and upload of data to City’s Geographic Information
System, and City may utilize Subdivider’s Developers Deposit account for all charges related
hereto.
Subdivider authorizes the City to convert digital files submitted by Subdivider pursuant
to Section 18.32(3)(i) of the Municipal Code of the City of Muskego and Common Council
Resolution No. 196-2002 to any format deemed necessary by City. Subdivider agrees to
reimburse City for all costs incurred in said conversions and City may utilize Subdivider’s
Developers Deposit account for all charges related hereto.
SECTION VI : DEDICATION AND ACCEPTANCE OF IMPROVEMENTS
Subject to all of the other provisions of this agreement, Subdivider shall, without charge to the
City, upon completion of the above described improvements, unconditionally give, grant,
convey and fully dedicate the streets, sanitary sewers, water mains, storm water drainage
facilities (excluding those facilities which are to be owned and maintained by the Belle Chasse
Homeowners Association, Inc.) 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, buildings, 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 first lift of bituminous concrete pavement has been installed, when all said
utilities have been completed and approved by the Public Works Directors 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 City standards and
specifications. Claims of financial hardship by the Subdivider 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 Subdivider.
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 Director deems
other items relating to the construction of the subdivision necessary:
1. The sanitary sewer, water, and surface water drainage facilities required to serve such
homes are connected with an operational system as required herein, and the installation of
the bituminous concrete base course pavement has been properly installed, 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
3. Video tape of sanitary sewer system has been completed by the Utilities Department, and
the results found acceptable by the Utility Superintendent, and
4. 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.
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SECTION VII: INSPECTION AND ADMINISTRATION FEES
Subdivider 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 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 VIII: MISCELLANEOUS REQUIREMENTS
The Subdivider shall:
1. Easements: Provide any easements on Subdivider's land deemed necessary by the Public
Works Director or his designee prior to the Final Plat being signed, provided such
easements are along lot lines or to the rear of the lots and are not any more restrictive to
the building of homes beyond the applicable side yard and offset distances required by the
zoning for such lots.
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. Fees: Pay fees associated with the development ordinances of the City of Muskego and
per this agreement at the time of recoding of the Final Plat. Such fees may include the
following (Note: Fees are subject to change depending on final layout of Final Plat and final
construction of improvements):
Park Dedication Fees in the amount of $1,881/single-family lot
Conservation Dedication Fees in the amount of $580 per developed acre
Conservation Dedication Trail Fees in the amount of $60/single-family lot
Durham Road Intersection Improvements in the amount of $27,200.65
Mystic Drive/Woods Road intersection Improvements in the amount of
$13,200
Reimburse the City for the cost of all street signs, street lights, traffic signs
and posts, including the cost of their installation.
City to reimburse developer for Sanitary Sewer Oversizing in the
approximate amount of $13.,650 and $18,760
SECTION IX: 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 X: GUARANTEES
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The Subdivider shall guarantee the public roads and streets, sanitary sewers, water mains,
surface water drainage improvements and all other improvements described in Section III,
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 Subdivider 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 XI : GENERAL INDEMNITY
In addition to, and not to the exclusion or prejudice of, any provisions of this Agreement or
documents incorporated herein by reference, Subdivider 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 Subdivider against City, its officers, agents and employees in an
effort to enforce this Agreement. The Subdivider 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 this Subdivision and give the City
evidence of the same upon request by the City.
a) Hold Harmless. The Subdivider shall indemnify and hold harmless the City, its officers,
agents, independent contractors, 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
Subdivider, its officers, 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 a party indemnified herein. In any and all claims against the City, its officers,
agents, independent contractors, and employees by the Subdivider, 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
Subdivider, its officers, agents, independent contractors, employees under Workers’
Compensation Acts, disability benefit acts, or other employee benefit acts.
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 such matters they act as
agents and representatives of the City.
c) Indemnification for Environmental Contamination. The Subdivider shall indemnify,
defend, and hold City and its officers, agents, independent contractors, 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 Plat and 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
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improvements. Without limiting the generality of the foregoing, the indemnification by
the Subdivider 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 Subdivider 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, Subdivider 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) Subdivider shall, at its expense, obtain and carry comprehensive general liability
insurance with combined single limits of at least One Million Dollars ($1,000,000.00) for
one person and at least Five Million Dollars ($5,000,000.00) per occurrence, and at
least One Million Dollars ($1,000,000.00) property damage (or such higher amounts as
the City shall from time to time deem reasonable). Such policy shall cover both
Subdivider and the City and its agents, employees, and officials, and all insurers shall
agree not to cancel or change the same without at least thirty (30) days written notice to
the City. A certificate of Subdivider’s insurance shall be furnished to the City upon
execution of this Agreement. Each 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 XII: AGREEMENT FOR BENEFIT OF PURCHASERS:
The Subdivider 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 or any interest in any lot or
parcel of land in the Subdivision. Further, that the sale of any lot or parcel shall not release the
Subdivider from completing the work provided for under this Agreement, by applicable
Ordinances and as set forth in the plans and specifications on file in the City Building and
Engineering Department.
SECTION XIII : 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 Subdivider to construct the improvements in accordance with the
plans and specifications called for by this Agreement, upon Subdivider's compliance with
any deposit provisions or other requirements of the applicable ordinances or regulations.
2. Furnish the Subdivider 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 Subdivider in obtaining similar permits, resolutions and documents as
may be necessary from other authorities having jurisdiction in the premises.
4. Make available to the Subdivider or their nominee, successors or assigns, permits for the
construction of single-family residences subject to the provision of Section XIII.
SECTION XIV : BUILDING AND OCCUPANCY PERMITS:
It is expressly understood and agreed that no building permits shall be issued for any homes
until the Public Works Director or his designee has determined that:
Reso. #060-2013
1. A letter of credit remains on file or the remaining improvements.
2. The Final Plat is recorded and the appropriate copies and mylar of the recorded plat
are delivered to the Community Development Department.
3. The Resolution of the acceptance of improvements is approved by the City.
4. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by
the Community Development Director.
It is expressly understood and agreed that no occupancy permits shall be issued for any
homes until the Community Development Director has determined that:
1. Street Tree Plans as required by Section III E (3) of this Agreement have been
approved for this phase of development.
SECTION XV : FINANCIAL GUARANTEES:
1. LETTER OF CREDIT: Concurrent with the execution of this Agreement by the City, the
Subdivider shall file with the City a Letter of Credit, in the City Attorney approved form,
setting forth terms and conditions in the amount of $_________.00 as a guarantee that the
required plans and improvements will be completed by the Subdivider 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 Subdivision are satisfied.
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.
b) Reduction Of Letter Of Credit Balance: The Subdivider shall provide Public Works
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 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.
2. DEVELOPER'S DEPOSIT: The Subdivider shall maintain a $10,000.00 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.
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 Subdivider’s consent to the installation by
the City of all improvements required by this Agreement and constitutes the
Subdivider’s waiver of notice and consent to all special assessment proceedings as
described in Section 66.0703(7)(b), Wis. Statutes.
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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 XVI : PARTIES BOUND:
Subdivider 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. 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 Subdividers. 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
Subdivider from ultimate responsibility for the design, performance, and function of the
Development and related infrastructure.
SECTION XVII : AMENDMENTS AND ASSIGNMENT:
Subdivider shall not assign this Agreement without the written consent of the City. The City
and the Subdivider, by mutual consent, may amend this Agreement, by written agreement
between the City and the Subdivider.
SECTION XVIII : NOTICES AND CORRESPONDENCE
Unless otherwise stated in this Agreement, the delivery of all notices and correspondence shall
only be effective upon being delivered personally, sent by prepaid United States Postal
Service certified mail with return receipt requested, sent by facsimile with transmission
confirmation, or sent by electronic mail with return receipt requested, to all parties as follows:
To City:
Community Development Department
City of Muskego
POB 749
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
(262) 679-4136
(262) 679-5614 facsimile
To Subdivider:
Belle Chasse Partners LLC
N27 W24075 Paul Court, Suite 200
Pewaukee, WI 53072
Attn: Matt Neumann and/or Mike Kaerek
12720 West North Avenue
(262) 542-9200
(262) 349-9324
All notices shall be considered to have been delivered at the time such notices are
personally delivered to each party, facsimile transmission, or electronic mail, 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.
Reso. #060-2013
SECTION XIX : PARTIES TO THE AGREEMENT
IN WITNESS HEREOF, Subdivider 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. Belle Chasse Partners LLC
By: _______________________________
Matt Neumann, Member
STATE OF WISCONSIN )
SS
WAUKESHA COUNTY )
PERSONALLY came before me this _____ day of ______, 20__, Matt Neumann, Member, to
me known to be the person who executed the foregoing instrument and acknowledged the
same.
Notary Public-State of Wisconsin
My Commission Expires
Reso. #060-2013
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:
Kathy Chiaverotti, Mayor
BY:
Sharon Mueller, City Clerk-Treasurer
STATE OF WISCONSIN )
SS
WAUKESHA COUNTY )
PERSONALLY came before me this _____ day of ______, 20__, the above named Kathy
Chiaverotti, 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
th
on the 25 day of June, 2013.
Notary Public-State of Wisconsin
My Commission Expires
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Subdivider's Agreement for
Belle Chasse Phase #2 Subdivision, Muskego, Wisconsin, as entered into on the _____ day of
______, 20__, by and between _____________ and the City Of Muskego, pursuant to the
th
authorization by the Common Council from their meeting on the 25 day of June, 2013.
BY THE COMMON COUNCIL
________________________
Sharon Mueller, City Clerk-Treasurer City Clerk/Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This _____ day of ______, 20__.
My commission expires
This instrument drafted by Jeff Muenkel, AICP
City of Muskego PO Box 0749 Muskego, WI 53150-0749