CCR2019057-Attachment1
This Agreement, made this ____ day of ________, 2019 by
and between Muskego Lakes Estates LLC. (the "Developer")
and the City of Muskego, a municipal corporation of the State
of Wisconsin, located in Waukesha County, hereinafter called
the "City".
W I T N E S S E T H
WHEREAS, the Developer has submitted for approval by the
City the Preliminary Plat for the Subdivision, a part of the lands
described as:
Part of the Northeast 1/4 of the Northeast 1/4 of Section 26,
Township 5 North, Range 20 East, City of Muskego,
Waukesha County, Wisconsin: Commencing at the Northeast
corner of the Northeast 1/4 of Section 26, Township 5 North,
Range 20 East; Thence S 0°30'02" E along the East line of
said Northeast 1/4 of Section 26, 33.00 feet to the South line
of Ryan Drive and the Point Of Beginning; Thence continuing S
0°30'02" E along said East line of the Northeast 1/4 of Section
26, 873.49 feet; Thence S 72°07'44" W, 269.85 feet; Thence N
71°00'05" W, 528.40 feet; Thence S 88°08'00" W, 563.74 feet;
Thence N 0°33'09" W, 346.99 feet to the Southeast corner of Parcel 3 of Certified Survey Map 8229 as
recorded in the Waukesha County Register of Deeds Office as Document No. 2195040; Thence continuing
N 0°33'09" W along the East line of said Parcel 3 of Certified Survey Map 8229, 292.42 feet to the South
line of Parcel 2 of said Certified Survey Map 8229; Thence N 89°02'51" E, 250.00 feet to the Southeast
corner of Parcel 3 of said Certified Survey Map 8229; Thence N 0°33'09" W along the East line of said
Parcel 3 of Certified Survey Map 8229, 141.30 feet to the South line of Ryan Drive; Thence N 89°02'51" E
along said South line of Ryan Drive, 1069.97 feet to the Point Of Beginning. Said Parcel contains
1,066,782 Square Feet or 24.490 Acres, more or less.
WHEREAS, The Developer is required to make and install certain public improvements (“Improvements”)
reasonably necessary for the Development, conditioned upon the construction of said Improvements
according to approved plans, applicable City ordinances and written municipal specifications universally
applied as of the date of this Agreement, without cost to City; and
WHEREAS, The City Engineer and the City's Public Works Committee have duly approved, contingent on
certain other approvals, Developer's plans and specifications for the Improvements, and the City's Plan
Commission has duly approved the Development contingent in part upon the execution and performance of
this Agreement by the Developer.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree
as follows:
SECTION I : DEVELOPMENT
1. LAND USE: The Development as approved by Plan Commission Resolution #048-2018 consists of a
28-lot residential subdivision with the features per the referenced resolution. This development was
later changed to 27-lots per the developer.
2. IMPROVEMENTS: Developer and City agree that this Agreement is for the installation of public and
Parcel ID # (PIN):
MSKC 2261.999
Muskego Lakes Estates
DEVELOPER'S AGREEMENT
Document Number Document Title
Recording Area
Name and Return Address
City of Muskego
Planning Division
W182 S8200 Racine Ave.
Muskego, WI 53150
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private improvements consisting of water, sanitary sewer, storm sewer, stormwater improvements,
landscaping, grading and roadway work and per the documents approved by Plan Commission Resolution
#048-2018.
SECTION II : PLATTING
1. This Developer’s Agreement addresses the development of parcels platted for single family residential use,
all being under the Provisions of Sections 392 and 400 of the Municipal Code, and under the auspices of
the Suburban Residential District – RS-2 zoning.
a) Single-family parcels shall conform to the zoning requirements of the RS-2 Suburban Residence
District. The RS-2 zoning is allowed per Common Council approval and allows lots to be at least
20,000 square feet in area and have a minimum average width of 110 feet.
b) Outlots shall be reserved for open space management and stormwater purposes consistent with the
Preliminary Plat approved per Council Resolution #048-2018 on October 2, 2018.
2. Developer shall entirely at its expense:
a) As per Section 392-22B.(4) of the Muskego Municipal Code, have the Muskego Lakes Estates Final
Plat submitted and approved. The Developer shall cause the Final Plat of the Muskego Lakes Estates
to be executed and recorded, and shall provide City with evidence of recording. Note: The Final Plat
cannot be approved until after the improvements, found in Section VII, Final Acceptance, of this
agreement, are accepted to ensure that no lots are sold until said acceptance is complete.
b) Concurrent with the execution of this Agreement tender an Irrevocable Standby Letter of Credit or Bond
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 or Bond has been tendered.
c) Provide the City with title evidence showing that upon recording the Final Plats, the City will have good,
indefeasible title to all interests in land dedicated or conveyed to the City by the Plats.
d) Before any improvements found in Section III of this agreement begin, the Developer 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:
City shall, within its jurisdiction, furnish the Developer such permits or easements as may be required to enter
upon and install the water main, storm sewer and sanitary sewer improvements described herein.
Developer shall cause the construction of all Improvements called for by this Agreement to be carried out and
performed in a good and workmanlike manner. Developer shall submit to the City valid copies of any agency
permits that may be required in connection with the improvements, including , if necessary, the Wisconsin
Department of Safety and Professional Services permits, and the Wisconsin Department of Natural Resources
permits before construction commences and prior to any preconstruction meeting.
Developer shall entirely at its expense:
A. SANITARY SEWER:
1. Construct, install, furnish, and provide without cost to City, a complete sanitary sewage collection system
throughout the entire Development, as approved by the Public Works Director or his designee and the
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Public Works Committee in accordance with the plans, specifications and drawings on file in the City
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. Clean all sanitary sewers in the Subdivision prior to acceptance of the Improvements and issuance of
building permits by the City.
4. Request televising of the sanitary system by the City of Muskego and reimburse the City for costs to
complete the televising.
B. 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 in Ryan Road
necessary to provide such system, as approved by the Public Works Director or his designee and Public
Works Committee and in accordance with the plans and specifications on file in the City Engineering
Department.
2. Apply for and pay 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.
C. ROADS AND STREETS:
1. Grade and improve all roads and streets in accordance with the plans and specifications approved by the
Public Works Committee including off-site improvements necessary to Ryan Road 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 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. Contractors working at the Development are required to clean up all mud, dirt, stone or debris on the
streets no later than the end of each working day. In addition, the Developer shall have ultimate
responsibility for cleaning up any and all mud, dirt, stone or debris on the streets until Final Acceptance has
been granted by the City Council as described in Section VII, Final Acceptance. The City shall make a
reasonable effort to require the contractor that placed the mud, dirt, stone or debris on the street, to clean
up the same or to hold the subject property owner who hired the contractor responsible. The Developer
shall clean up the streets within twenty-four (24) hours after receiving a notice from the City. If said mud,
dirt, stone or debris are not cleaned up after notification, the City may do so at the Developer’s and/or
subject property owner's expense, at the option of the City.
D. STORM AND SURFACE WATER DRAINAGE AND GRADING PLAN:
1. Construct, install, furnish and provide facilities as approved by the Public Works Director or his designee
and Public Works Committee for storm and surface water drainage throughout the entire Development, all
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in accordance with the plans and specifications on file in the Engineering Department. The City retains the
right to require the Developer to install at Developer’s cost additional storm drainage and erosion control
measures prior to acceptance of improvements by the City of Muskego.
2. Grade and improve the development in conformance with the grading plan as approved by the Public
Works Director or his designee and Public Works Committee in accordance with the plans and
specifications on file in the City Engineering Department. Restore with topsoil and seed and actively
maintain until established.
3. The City retains the right to require Developer to install within the development (and immediately adjacent
area if applicable and necessary), additional surface and storm water drainage measures if it is determined
by the City Engineer that the original surface and storm water drainage plan as designed and/or
constructed does not provide reasonable stormwater drainage pursuant to the City’s ordinances, written
procedures and policies.
4. Clean all Storm Sewers prior to acceptance of improvements and the issuance of building permits by the
City.
5. Execute and record a Maintenance Agreement as approved by the Public Works Director or his designee
relating to privately owned storm water appurtenances and provide proof of recording. 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.
6. Submit an as-built grading plan that meets all City requirements.
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.
3. Plant street trees without cost to City in accordance with Section 392-45 of the Muskego Municipal Code
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 on file in the City Building and Engineering Department that were approved by the
Community Development Director and City Forester prior to the signing of this agreement. The planting of
the street trees shall occur before the installation of the final course of pavement with the City Engineer’s
approval of planting schedule.
4. The City has the right to trim and remove any landscaping features which would interfere with safe
operation and maintenance of the City right-of-ways and drainageways.
F. EROSION CONTROL MEASURES:
1. The Developer shall cause all grading, excavation, open cuts, side slopes and other land surface
disturbances to be so seeded and mulched, sodded or otherwise protected that erosion, siltation,
sedimentation and washing are prevented in accordance with the plans and specifications reviewed and
approved by the City Engineer, the State of Wisconsin Department of Natural Resources, and Army Corps
of Engineers, if applicable.
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-site and along Ryan Road, in accordance with the
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Erosion Control Plan as approved by the Public Works Director or his designee and Public Works
Committee and in accordance with the plans and specifications on file in the City Engineering Department.
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 Developer 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 162.
SECTION IV: ADDITIONAL IMPROVEMENTS
The Developer hereby agrees that if, at any time after plan approval and during construction of the
Improvements, the City Engineer determines that modifications to the plans including additional Improvements
such as additional drainage ways, erosion control measures, and surface and storm water management
measures are necessary in the interest of public safety, are necessary in order to comply with current laws or
are necessary for implementation of the original intent of the Improvement plans, the City is authorized to order
Developer, at Developer’s expense, to implement the same. If Developer fails to construct the additional
Improvement within a reasonable time under the circumstances, the City may cause such work to be carried
out and shall charge against the financial guarantee held by the City pursuant to this Agreement. The
requirement by the City of such additional Improvements as set forth herein must not negatively impact the
Subdivision or cause or result in the loss of a lot within the Subdivision that was intended for the construction of
a single family home.
SECTION V: TIME OF COMPLETION OF IMPROVEMENTS
The improvements set forth in Section III, Improvements, except for final surface course of pavement as
described herein, shall be completed by the Developer within one (1) year from the signing of this Agreement
or prior to occupancy of any homes or issuance of building permits except if an earlier date is provided for in
the Agreement. The final surface course of pavement must 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 Developer shall extend the Letter of Credit or Bond in the amount of 120% of the cost of the
final surface course, 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 or Bond 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 or
Bond 120% of the amount of the cost of the final surface course.
SECTION VI: AS -BUILT CONSTRUCTION PLANS
For private utilities the Developer can use its contractor or authorize City to prepare all necessary as-built
construction plans. For public utilities, the Developer authorizes the City to prepare all necessary as-built
construction plans for the Improvements to be dedicated to the City. Developer agrees to reimburse City for all
costs incurred in the preparation and distribution of as-built data, including collection of data, revisions to
construction documents and upload of data to City’s Geographic Information System, and City may utilize
Developer’s Developers Deposit account for all charges related hereto.
SECTION VII : FINAL ACCEPTANCE
Throughout this Agreement, various stages of the development will require approval by the City. “Final
Acceptance” as used herein, however, shall be the ultimate acceptance of all of the Improvements in the
completed development as a whole, with the exception of the final surface course on the public streets, and
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shall be granted specifically by resolution of the City Council. Final Acceptance shall be granted when
substantial completion occurs, as determined by the City Council pursuant to the definition of substantial
completion shown in Wisconsin Statutes Section 236.13(2)(am)(2). Granting Final Acceptance does not
relieve the Developer of any obligations of this Agreement for uncompleted Improvements, and does not
constitute a waiver, in particular, of the Developer’s obligation to complete the final surface course of the public
streets or any other Improvements or obligations that may be outstanding at the time that Final Acceptance is
granted.
SECTION VIII: DEDICATION AND ACCEPTANCE OF IMPROVEMENTS
Subject to all of the other provisions of this Agreement, Developer shall, without charge to the City, upon
completion of the above described Improvements, unconditionally give, grant, convey and fully dedicate the
roadway, water main, storm sewer and sanitary sewer facilities (excluding those facilities which are to be
owned and maintained by the Muskego Lakes Estates Homeowners Association) 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,
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 storm sewer and sanitary sewer has been installed, when all said
utilities have been completed and approved by the City Engineer 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 approved plans, applicable City ordinances and
written municipal specifications universally applied as of the date of this Agreement. Claims of financial
hardship by the Developer 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 Developer, provided, however that connection to
any facilities located on or under Developer’s property shall require notice to Developer.
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
City Engineer 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 and the as-built grading
plan has been submitted to the Director of Public Works and he/she has verified all grades meet City
standards.
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SECTION IX: INSPECTION AND ADMINISTRATION FEES
Developer shall pay and reimburse the City in advance of the signing of the Agreement, in accordance with
Section 392-13 of the Land Division Ordinance and Muskego Municipal Code Section 39-10, 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 II,
including without limitation by reason of enumeration, 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 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 X: MISCELLANEOUS REQUIREMENTS
The Developer shall:
1. Easements: Provide any easements on Developer'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. Survey Monuments: Properly place and install any lot, block or other monuments required by State
Statute, City Ordinance or the City Engineer.
4. Underground Utilities: Install all electrical, telephone, cable and gas utilities underground. Coordination
of installation and all costs shall be the responsibility of the Developer.
5. Permits: Provide and submit to the City upon the City’s request, valid copies of any and all governmental
agency permits.
6. Removal of Topsoil: The Developer agrees that no topsoil shall be removed from the Subdivision without
approval from the City Engineer of which said approval shall not be unreasonably withheld.
7. Debris: Have ultimate responsibility for cleaning up debris that has blown from buildings under
construction within the Subdivision until such time as all Improvements have been installed and Final
Acceptance has been granted by the City Council as described in Section VII. The City shall make a
reasonable effort to require the contractor responsible for the debris to clean up the debris or to hold the
subject property owner who hired the contractor responsible. The Developer and/or subject property owner
shall clean up the debris within forty-eight (48) hours after receiving a notice from the City Engineer. If said
debris is not cleaned up after notification, the City will do so at the Developer’s and/or subject property
owner's expense.
8. Public Construction Projects: If any aspect of the development involves a public construction project
subject to the State law, all requirements of the State Public Construction Bidding Law must be satisfied,
including but not limited to, providing a performance bond.
SECTION XI: 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
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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 XII: GUARANTEES
The Developer shall guarantee the storm sewers, stormwater facilities, water mains, sanitary sewers and road
Improvements described in Section III, Improvements, 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 and are not the
result of the action or inaction of the City or other 3rd parties not under the direct control of the Developer. The
Developer shall pay for any damages to City property resulting from such faulty materials or workmanship.
This guarantee shall not be a bar to any action the City might have for negligent workmanship or materials.
Wisconsin law on negligence shall govern such situation.
SECTION XIII: GENERAL INDEMNITY
In addition to, and not to the exclusion or prejudice of, any provisions of this Agreement or documents
incorporated herein by reference, Developer 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 Developer against City, its officers, agents and employees in an effort
to enforce this Agreement.
a) Hold Harmless. The Developer shall indemnify and hold harmless the City, its officers, agents,
independent contractors, consultants, 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 Developer, its officers, agents, independent contractors, and employees or anyone for
whose acts any of them may be made liable. In any and all claims against the City, its officers, agents,
independent contractors, and employees by the Developer, its officers, agents, independent
contractors, employees, and anyone directly or indirectly employed by any of them or anyone 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 Developer, its officers, agents, independent contractors, employees under Workers’
Compensation Acts, disability benefit acts, or other employee benefit acts. The foregoing indemnity
shall not apply to the negligence or willful misconduct of the City.
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, consultant, and 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 Developer shall indemnify, defend, and hold City
and its officers, agents, independent contractors, consultants, 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
Development (including but not limited to street right of way) of any toxic or hazardous substances
arising from any activity occurring prior to the acceptance of all improvements. Without limiting the
generality of the foregoing, the indemnification by the Developer shall include costs incurred in
connection with any site investigation or any remedial, removal, or restoration work required by any
local, State, or Federal agencies because of the presence or suspected presence of toxic or hazardous
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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 Developer of the discovery of any
contamination or of any facts or circumstances that reasonably indicate that such contamination may
exist in or on the real property. Upon receipt of notice from the City or other entities, Developer 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) Developer 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 Developer and the City and its agents, employees, and officials. A certificate of
Developer’s insurance shall be furnished to the City upon execution of this Agreement including
separate endorsements naming the City as an Additional Insured, providing 30 days written Notification
of Cancellation, naming the Developer’s insurance as Primary and Non-Contributory and W aiving any
rights of Subrogation as to the City. 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. No work on the project may begin until the insurance and written endorsements named herein
are provided to the City in the form as approved by the City Attorney.
SECTION XIV: CITY RESPONSIBILITY FOR IMPROVEMENTS:
The City shall not be responsible to perform repair or maintenance on any Improvements until the final surface
course of pavement has been completed and accepted by the City.
SECTION XV: RISK OF PROCEEDING WITH IMPROVEMENTS
PRIOR TO APPROVALS OF FINAL PLAT:
If a Developer proceeds with the installation of Improvements or other work on the site prior to approval of the
final plat, it proceeds at its own risk as to whether or not the final plat will receive all necessary approvals. The
Developer, prior to commencement of the installation of Improvements or other work on site, shall notify the
City of the Developer’s intention to proceed with the installation of Improvements or other work on site, prior to
approval of the final plat. Additionally, Developer shall make arrangements to have any Improvements and/or
other work on site inspected by the City Engineer.
SECTION XVI: AGREEMENT FOR BENEFIT OF PURCHASERS:
The Developer agrees that the sale of any lot or parcel shall not release the Developer from completing the
Improvements provided for under this Agreement, by applicable Ordinances and as set forth in the plans and
specifications on file in the Community Development Department.
SECTION XVII: 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 Developer to construct the Improvements in accordance with the plans and specifications called for by
this Agreement, upon Developer's compliance with any deposit provisions or other requirements of the
applicable ordinances or regulations.
2. Furnish the Developer such permits or easements as may be required to enter upon and install the
previous described Improvements in any public street or public property.
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3. Cooperate with the Developer in obtaining similar permits, resolutions and documents as may be
necessary from other authorities having jurisdiction in the premises.
4. Make available to the Developer or their nominee, successors or assigns, permits for the construction of
single-family residences subject to the provision of Section XVIII, Building and Occupancy Permits.
SECTION XVIII: BUILDING AND OCCUPANCY PERMITS:
It is expressly understood and agreed that no buildings or occupancy permit shall be issued until the City
Engineer or his designee has determined that:
1. A letter of credit or bond pursuant to the requirements herein remains on file to guarantee compliance
with any other obligations under the agreement.
2. The Resolution of the dedication and acceptance of Improvements is approved by the City.
3. All parameters of Resolution #PC048-2018 has been met to the satisfaction of the Planning Manager.
4. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Community
Development Director.
5. The Developer is not in default of any aspect of this Agreement.
6. There is no default of any aspect of this Agreement.
7. The Final Plat is recorded and appropriate copies are delivered to the Community Development
Department.
SECTION XIX: RESERVATION OF RIGHTS AS TO ISSUANCE OF BUILDING PERMITS:
The City reserves the right to withhold issuance of any and all building permits if Developer is in violation of this
Agreement, but no permits shall be unreasonably withheld.
SECTION XX: FINANCIAL GUARANTEES:
1. LETTER OF CREDIT: Concurrent with the execution of this Agreement by the City, the Developer shall file
with the City a Letter of Credit, in the City Attorney approved form, setting forth terms and conditions in the
amount of $2,095,452.00 which amount shall be approximately 120% of the estimated cost of
improvements. This shall be held by the City as a guarantee that the required plans and improvements will
be completed by the Developer 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 Development is satisfied and all other obligations pursuant
to this Agreement have been satisfied. Instead of a Letter of Credit, Developer may deposit cash, a
certified check or the equivalent in the same amount pursuant to the same terms and conditions as set
forth in this Agreement. If at any time:
a) The Developer is in default of any aspect of this Agreement, or
b) The Developer does not complete the installation of the Improvements within one (1) year from the
signing of this Agreement unless otherwise extended by this Agreement or by action of the City
Council, or
c) The letter of credit or bond on file with the City is dated to expire sixty (60) days prior to the
expiration of the same if the same has not been extended, renewed or replaced, per the terms of
this Agreement, or
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d) The Developer fails to maintain a cash deposit, bond or letter of credit in an amount approved by
City Engineer, and in a form approved by the City Attorney, to pay the costs of Improvements in the
Subdivision per the terms of this Agreement,
the Developer shall be deemed in violation of this Agreement and the City Council shall have the authority
to draw upon the financial guarantee.
2. Invoices: Invoices documenting public Improvements addressed and not addressed in the Letter of Credit
or the Subdivision Bond, but attributable to the subject development shall be provided to the City.
3. Reduction of Letter of Credit Balance: The Developer shall provide City Engineer 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 City Engineer or his designee will
process all requests in accordance with policies adopted by the Finance Committee, as may be amended
from time to time. The City Engineer shall not, however, reduce the financial guarantee with regard to
amounts necessary to ensure compliance with obligations of this Agreement that are not improvement
construction costs, unless (1) the Developer proves full compliance with such issues to the satisfaction of
the City Engineer; or (2) 14 months have passed from the date of substantial completion as determined in
Wisconsin Statute 236.13(2)(am)(c) and no claims have been made against the City or by the City against
the Developer in that regard.
4. DEVELOPER'S DEPOSIT: The Developer 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. Upon completion of the project, acceptance of improvements and payment of all project
related costs, any unused balance remaining in Developer’s deposit account shall be returned to
Developer.
5. 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 to impose special assessments for any amount to which the City is entitled by virtue of
this Agreement relating to the Improvements or other Developer obligations pursuant to this
Agreement.
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 XXI: PARTIES BOUND:
Developer 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. This section allows for the City to enforce the terms and conditions of this
agreement against all such assignees, but does not grant rights to assignees absent the City’s written consent
as described in Section XXIII, Amendments and Assignment. 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 Developers.
The fact that the City or it's engineers, or it's attorney, or it's staff may approve a specific project shall not
constitute a waiver, or relieve the Developer from ultimate responsibility for the design, performance, and
function of the Development and related infrastructure.
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SECTION XXII: EXCULPATION OF CITY CORPORATE AUTHORITIES:
The parties mutually agree that the Mayor and/or the City Clerk, entered into and are signatory to this
Agreement solely in their official capacity and not individually, and shall have no personal liability or
responsibility hereunder; and personal liability as may otherwise exist, being expressly released and/or waived.
SECTION XXIII: AMENDMENTS AND ASSIGNMENT:
Developer shall not assign this Agreement without the written consent of the City. The City and the Developer,
by mutual consent, may amend this Agreement, by written agreement between the City and the Developer.
SECTION XXIV: SALE OF LOTS:
No lots in the Subdivision may be sold until final acceptance of the improvements has been granted by the
City, unless otherwise expressly approved in writing by the City Council.
SECTION XXV: NOTICES AND CORRESPONDENCE
Unless otherwise stated in this Agreement, the delivery of all notices and correspondence shall only be
effective upon being delivered personally or sent by prepaid United States Postal Service certified mail with
return receipt requested, to all parties as follows:
To City:
Planning Division
City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
(262) 679-4136
To Developer:
Muskego Lakes Estates, LLC.
W185 S8095 Racine Ave
Muskego, WI 53150
(262) 679-5154
All notices shall be considered to have been delivered at the time such notices are personally delivered to each
party, 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.
SECTION XXVI: RECORDING
This Agreement shall be recorded against the Subdivision property and shall run with the land until all
obligations of the Developer have been fulfilled and accepted by the City at which time this Agreement shall
expire.
SECTION XXVII: PARTIES TO THE AGREEMENT
IN WITNESS HEREOF, Developer 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.
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A. Muskego Lakes Estates LLC.
By: _______________________________
Its: ________________________________
STATE OF WISCONSIN )
SS
WAUKESHA COUNTY )
PERSONALLY came before me this ____day of _____________,2019, ______________________________,
to me known to be the person who executed the foregoing instrument and acknowledged the same.
Notary Public-State of _____________
My Commission Expires ___
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.
MORTGAGEE CONSENT
The undersigned Mortgagee of the Subdivision lands consents to this Developer’s Agreement, and agrees that
its lien of mortgage shall be subordinate to the rights of the City of Muskego granted by this Developer’s
Agreement.
TITLE: ___________________________________________
BY: ___________________________________________
Dated this _____ day of ____________________________, 2019.
STATE OF WISCONSIN)
SS
WAUKESHA COUNTY )
PERSONALLY came before me this _____ day of ______, 20__, __________________, to me known to be
the person who executed the foregoing instrument and acknowledged the same.
Notary Public-State of Wisconsin
My Commission Expires
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.
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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 ______________,2019, 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 on the ______ day of _____________, 2019.
Notary Public-State of Wisconsin
My Commission Expires
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Developer's Agreement for Community
Holdings, LLC., Muskego, Wisconsin, as entered into on the ____ day of _____________, 2019 by and
between Community Holdings, LLC., and the City of Muskego, pursuant to the authorization by the Common
Council from their meeting on the _____ day of ____________, 2019.
BY THE COMMON COUNCIL
________________________
Sharon Mueller, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This ______day of ___________, 2019.
My commission expires
This instrument drafted by Jeffrey J. Warchol, City Attorney
City of Muskego, WI
W182 S8200 Racine Avenue
Muskego, WI 53150