CCR2015049-Horn Brothers-AttachmentCITY OF MUSKEGO
Staff Report to Parks and Conservation Committee
To: Parks and Conservation Committee
From: David Simpson, P.E., Director of Public Works/City Engineer
Subject: Horn Brothers Parking Agreement
Date: April 27, 2015
The City has a long standing agreement that allows Horn Brothers use of the City’s
Park’s building parking lot on Pioneer Drive. The attached agreement has been
updated to reflect the most recent agreement entered into by the City for the
Freedom Square parking lot.
Recommendation:
Recommend approval of the attached agreement.
Page 1 of 1
Document Number
CITY OF MUSKEGO/HORN BROTHERS
USE & MAINTENANCE AGREEMENT FOR
PARKS GARAGE PARKING LOT
Document Title
This agreement is made and effective as of the _____ day of
_______________, 2015, by and between Horn Brothers, Inc. (the
“Business”) and the City of Muskego (the “City”).
Section One: Introduction
A. Properties. Although neither party warrants title to the other, the
City is believed to be the owner of a property addressed as
W180 S7732 Pioneer Drive, known as tax key number MSKC
2196-976 (the “Parks Garage”); and the Business is believed to
be the owner of the property located across the street addressed
as W180 S7725 Pioneer Drive, known as tax key number MSKC
2195-957 (the “Business Property”).
B. Purpose. It is the intention of the City and the Business to share
use and responsibility for the ongoing maintenance and repair of
a portion of the Parks Garage parking lot. It is further the
intention of the City and the Business that the Parks Garage
parking lot shall be a City facility.
Recording Area
Name and Return Address
Attorney Eric J. Larson
P.O. Box 1348
Waukesha, WI 53187-1348
MSKC 2198-981-001
Parcel Identification Number (PIN)
C. Consideration. The Business has determined that it has insufficient parking on its property, and has
approached the City with a request to utilize a portion of the parking lot within the Parks Garage
property. The City and the Business, upon their mutual promises, and upon the foregoing mutual
benefits, find that there is ample consideration for this agreement and hereby intend to be bound
Section Two: Parking Lot Use, Operations, & Costs
A. Parking Lot Area- The Business will only be allowed to utilize the specific area shown on Exhibit A.
B. Parking Lot Use – The Parks Garage parking lot may be used for short-term parking subject to the
terms and conditions set forth hereinafter.
All parking spots in the parking lot shall be equally shared on a first come, first served basis by the
City, and the Business. It is understood by both parties that the parking lot area is strictly for short-
term daily employee and Business owned vehicle parking. No long-term parking in excess of 24
hours or storage of vehicles, materials or any other things that would reduce area capacity shall be
allowed. The following exceptions can be made upon prior agreement with involved parties, which
shall not be unreasonably withheld: Parking of Business owned vehicles may be allowed.
Absolutely no blocking of traffic flow lanes shall be allowed. No one can disrupt, restrict or deny the
free use of the parking lot area as herein provided.
C. Winter Maintenance – The Business shall be solely responsible for any desired snow removal and
salting costs for winter use of the parking lot. The Business may contract or perform such winter
maintenance directly, though if such work is done in a way that is not satisfactory to the City, the
City has the right to perform such work to its satisfaction and invoice the Business for all costs
incurred, in order to preserve the health, safety and welfare of persons and property using the City’s
Parks Garage parking lot.
D. Defined Costs – The “Defined Costs” as used herein shall mean all Parking Lot Resurfacing,
Parking Lot Surface Overlay, and Parking Lot Striping. The defined costs include all costs and
expenses of any type that the City incurs in connection with this work, including the cost of
professional services incurred by the City (including engineering, legal, planning and other
consulting fees) and all contracting costs, plus actual time for City personnel at City hourly rates plus
40% for benefits, and materials. The parties recognize that it is recommended to perform
resurfacing/striping every 5 years. The parties further understand that it is recommended to perform
parking lot overlay every 10 years. All work will be performed/contracted for by the City or the City’s
contractors and the Business will be invoiced for their cost percentage depicted in Section 3, below.
The determination of whether a long term maintenance project shall be done for safety reasons
and/or end of infrastructure’s useful life will be the responsibility of the City with notification to each
party one year in advance of the work being performed, for budgeting purposes. The determination
of whether other work encompassed within the Defined Costs shall be done, shall be made at City’s
discretion.
E. Damage to Parking Lot – The City and Business shall be responsible for any damage they may
cause to the parking lot area, respectively. The party responsible for such damage shall promptly
make all needed repairs, restoring the area to its condition prior to the damage.
F. Obstructions to Use of the Parking Area - Neither the City or Business, nor any person permitted to
use the parking lot under the terms of this agreement, may utilize the parking lot area in a way that
permanently interferes with its use by any other person permitted to use it. Any obstructions or
impediments to the use of the parking lot contrary to the terms of this agreement may be removed,
without notice, by the City and the cost of such removal shall be borne by the party causing or
responsible for such obstruction. Business use must not interfere with park operations. City
reserves the right to close off any of the parking lot to business parking as necessary for park
operations.
G. Enforcement of Parking Lot Agreement - The City shall have the right to legally enforce this
agreement and the covenants, conditions and restrictions set forth herein, by whatever action or
actions are legally available, including, without limitations, enjoining any violation or threatened
violation hereof.
H. Amendments - This parking lot agreement may not be modified, amended or terminated except by
execution and recording of a written instrument signed by all owners.
I. Successors - All of the terms, covenants, conditions and obligations set forth in this agreement shall
inure to the benefit of and bind the Business and their respective personal representatives, heirs,
successors, transferees and assigns, and shall continue as a servitude running in perpetuity with the
Business Property. This Section allows for City enforcement of the terms and conditions of this
agreement against all such successors. This section does not, however, grant rights to such
successors absent the City’s written consent, as described in Section Six B.
J. Severability - If any provision or specific application of this parking lot agreement is found to be
invalid by a court of competent jurisdiction, the remaining provisions or specific applications of this
parking lot agreement shall remain valid and binding.
K. Recording - This agreement shall be recorded in the office of the Waukesha County Register of
Deeds against the Business Property and shall run with the Business Property land.
Section Three: Percentage of Total Defined Costs by Each Party
A. City Cost: Responsible for 50% of defined costs
B. Business Cost: Responsible for 50% of defined costs
Section Four: Other Costs
A. In the event of vandalism/storm damage of property to defined parking lot, uninsured expenses not
covered by the City’s property insurance policy, will be paid on a percentage basis with the City
paying 50% and the Business paying 50%. This includes the deductible for that item needing to be
replaced.
B. All other associated costs with said parking lot, not outlined in this agreement, must be mutually
agreed upon by both the City and the Business if both parties are expected to share in the cost.
Section Five: Payment Guarantee
A. The Business agrees and warrants to City that all costs described in this agreement (including but
not limited to the Winter Maintenance Costs of Section Two C., the Defined Costs of Section Two
D., and the Other Costs of Section Four), in the applicable percentage described herein, are a
benefit to the Business Property, and are provided as a service to the Business Property. The
Business agrees, further, that such costs, if not paid within the time required by the City, may be
imposed against the Business Property as a special charge, pursuant to Wisconsin Statutes Section
66.0627, and collected as a special tax. Such remedy shall be in addition to, and not in lieu of, such
other remedies as may be available to City.
Section Six: Legal Provisions
A. 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.
B. Assignment. Neither the Business 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.
C. No Warranties or Representations; and Indemnification. The City makes no representations or
warranties whatsoever about the parking lot, the safety thereof, their fitness for a particular purpose
or any other aspect of the parking lot. In addition to, and not to the exclusion or prejudice of, any
provisions of this Agreement or documents incorporated herein by reference, the Business hereby
waives all claims arising out of this Agreement, and shall indemnify and save harmless and agrees
to accept tender of defense and to defend and pay any and all legal, accounting, consulting,
engineering and other expenses relating to the defense of any claim asserted or imposed upon the
City, its officers, agents, employees and independent contractors growing out of this agreement by
any party or parties.
D. Notices. All notices permitted or required by this Agreement shall be given in writing and shall be
considered given upon receipt if hand 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 Business: Horn Brothers, Inc.
W180 S7725 Pioneer Drive
Muskego, WI 53150
To the City: City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
Attn: City Clerk-Treasurer
Fax No.: 262-679-4106
E. 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.
F. Severability of Provisions. If any of the 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.
G. 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.
H. 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.
I. 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.
J. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be
deemed an original.
K. 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.
L. Fax Signatures. The parties agree that fax signatures shall be binding on the parties hereto.
Section Seven: Insurance
1. Property Insurance. The Business shall carry a Valuation Policy (replacement value) with
the defined Facilities identified, with a maximum deductible of $500.00.
2. Liability Insurance. The City and Business shall carry minimum liability insurance of:
Personal & Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage $ 250,000
Medical Expense $ 10,000
Section Eight: Dispute Resolution
In the event of a dispute between the Business and the City arising out of this Agreement or the use of
the parking lot, the Business and the City agree to attempt to resolve such dispute through mediation.
In the event that the Business 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 Business 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.
Section Nine: Term
This agreement shall be effective for an initial term of one (1) year, and thereafter shall automatically
renew for successive monthly periods in perpetuity unless terminated pursuant to the termination
procedures of Section Ten, below.
Section Ten: Termination
This agreement may be terminated by either party with or without cause upon written notice, to be
effective 30 days following the date of the notice, subject to the following:
A. Business Terminates. The Business is prohibited from terminating this
agreement at any time when the Business owes compensation to the City pursuant to this
agreement, or when costs have been or are being incurred which are subject to compensation
to the City from the Business. Any attempt to terminate this agreement at such a time shall be
effective only following the full payment of any such compensation to the City and completion
of the 30 day notice period, whichever occurs last.
C. City Terminates. The City may terminate this agreement immediately upon 30 day
written notice to the Business. No compensation shall be due to the Business.
Upon termination of this agreement, the City shall have the right to prohibit the Business and patrons of
the Business from using the parking lot. No termination of this agreement shall relieve the Business or
its successors from the payment obligations described herein. Section Five of this agreement and all
payment terms referenced therein shall survive any termination, for costs incurred prior to the date of
termination.
IN WITNESS WHEREOF, the parties have executed this use and maintenance parking lot agreement.
[Signatures on the following pages]
Dated this _____ day of _______________, 2015.
City of Muskego
By: ________________________________
Print Name: Kathy Chiaverotti
Title: Mayor
ATTEST:
By: __________________________________
Print Name: Sharon Mueller
Title: Finance/Admin. Director/Clerk
STATE OF WISCONSIN )
) ss.
COUNTY OF WAUKESHA )
Personally came before me on this _________ day of ________________, 2015, the above-named
Kathy Chiaverotti, Mayor; and Sharon Mueller, Finance/Admin. Director/Clerk, executed the foregoing
instrument and acknowledged the same.
_______________________________
NOTARY PUBLIC, STATE OF WI
My Commission Expires: ___________
Dated this _____ day of _______________, 2015.
BUSINESS
By: _________________________________
Print Name: __________________________
Title: ________________________________
STATE OF WISCONSIN )
) ss.
COUNTY OF WAUKESHA )
Personally came before me on this _________ day of ________________, 2015, the above-named
_____________________________ executed the foregoing instrument and acknowledged the same.
_______________________________
NOTARY PUBLIC, STATE OF WI
My Commission Expires: ___________
Dated this _____ day of _______________, 2015.
BUSINESS
By: _________________________________
Print Name: __________________________
Title: ________________________________
STATE OF WISCONSIN )
) ss.
COUNTY OF WAUKESHA )
Personally came before me on this _________ day of ________________, 2015, the above-named
_____________________________ executed the foregoing instrument and acknowledged the same.
_______________________________
NOTARY PUBLIC, STATE OF WI
My Commission Expires: ___________
EXHIBIT A I
PIONEER DR
W180S7732 PIONEER DR