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CCR2020043-Attachment KWIK TRIP DEVELOPER'S AGREEMENT Document Title Document Number This Agreement, made this ____ day of _____________, 2020 by and between Kwik Trip, Inc. (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 development plans for a new Kwik Trip, on a part of the lands described as: PARCEL A: PARCEL 1 OF CERTIFIED SURVEY MAP NO. Recording Area 4878, RECORDED JANUARY 24, 1986 IN VOLUME 39 OF Name and Return Address CERTIFIED SURVEY MAPS ON PAGES 269 TO 271, AS City of Muskego DOCUMENT NO. 1330216, BEING A PART OF THE Planning Division NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 1, TOWN 5 NORTH, RANGE 20 EAST, IN THE CITY OF W182 S8200 Racine Ave. MUSKEGO, COUNTY OF WAUKESHA, STATE OF Muskego, WI 53150 WISCONSIN. Parcel ID # (PIN): EXCEPTING THEREFROM part of Parcel 1 of Certified Survey MSKC 2162.999.002 Map 4878, recorded in Volume 39 of Certified Survey Maps on Page 269-271 as Document No. 133021, Waukesha County Records lying in the Northwest one-quarter of Section 1, Town 5 North, Range 20 East, City of Muskego, Waukesha County, Wisconsin more particularly described as follows: Beginning at the East corner of Parcel 1 of Certified Survey Map 4878, recorded in Volume 39 of Certified Survey Maps on Page 269 as Document No. 1330216, Waukesha County Records; thence South 59º 26' 51" West along the southerly line of said Parcel 1 211.30 feet to a point of curve; thence southwesterly along arc of a 1º 57' 45" curve 86.45 feet to a point of curve, said curve having a center lying to the southeast, a radius of 2,919.78 feet and a long chord of 86.45 feet bearing South 66º 09' 44" West; thence northwesterly along arc of a 15º 56' 59" curve 321.92 feet to a point on the northerly line of Parcel 1, said curve having a center lying to the southwest, a radius of 359.26 feet and a long chord of 311.26 feet bearing North 65º 57' 54" West; thence North 88º 21' 51" East along northerly line 545.53 feet to the point of beginning. PARCEL B: PARCEL 2 OF CERTIFIED SURVEY MAP NO. 4878, RECORDED JANUARY 24, 1986 IN VOLUME 39 OF CERTIFIED SURVEY MAPS ON PAGES 269 TO 271, AS DOCUMENT NO. 1330216, BEING A PART OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 1, TOWN 5 NORTH, RANGE 20 EAST, IN THE CITY OF MUSKEGO, COUNTY OF WAUKESHA, STATE OF WISCONSIN. EXCEPTING THEREFROM that part Parcel 2 of Certified Survey Map No. 4878, recorded January 24, 1986 in Volume 39 of Certified Survey Maps on pages 269, 270 and 271, as Document No. 1330216, being a part of the N.E. 1/4 of the N.W. 1/4 of Section 1, Town 5 North, Range 20 East, City of Muskego, County of Waukesha, State of Wisconsin, bounded and described as follows: Beginning at the Southwest corner of said Parcel 2 of said Certified Survey Map; thence North 59º 26' 51" East, along the South line of said Parcel 2, 347.87 feet to a point; thence North 30º 33' 09" West, 155.00 feet to a point; thence South 59º 26' 51" West, 347.87 feet to a point; thence South 30º 33' 09" East, 155.00 feet to the Southwest corner of Parcel 2, and the point of beginning. 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 1 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 and Safety 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 #063-2019, consists of a 9,156 square foot convenience store/gas station with the features per the referenced resolution. SECTION II : PLATTING/ZONING 1. This Developer’s Agreement addresses the development of land for convenience store/gas station uses, all being under the Provisions of Sections 392 and 400 of the Municipal Code, and under the auspices of the B-2 Local Service Center District with a Conditional Use Grant (CUG). a) Convenience store/gas station development shall conform to the zoning requirements of the B-2 Local Service Center District with a Conditional Use Grant (CUG) 2. Developer shall entirely at its expense: a) Prior to beginning any work related to the public improvements discussed herein, tender a cash deposit in the amount required herein for the construction of improvements required by this Agreement. No construction activity related to the water main work may commence until this Agreement has been executed and recorded, and the cash deposit has been tendered. b) Before any improvements found in Section III of this agreement begin, the Developer shall execute this Agreement, the Agreement shall be recorded at the Waukesha County Register of Deeds, and the City shall receive evidence of recording. c) 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 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. WATER MAIN: 1. Construct, install, furnish, and provide without cost to City, a complete system of water supply and distribution, throughout the development, and including off-site improvements necessary to provide such system, as approved by the Public Works and Development Director or his designee and Public Works and 2 Safety 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. B. LANDSCAPING: 1. Preserve existing trees outside of the public right-of-way to the maximum extent possible, when installing the development 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. 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 drainage ways. C. 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 Development, on and off-site, in accordance with the Erosion Control Plan as approved by the Public Works and Development Director or his designee and Public Works and Safety 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 Development. Install mulching and seeding of all disturbed areas to comply with Municipal Code Chapter 162. D. CITY REIMBURSEMENTS FOR UTILITY OVER SIZING 1. Reimburse the Developer in accordance with the following schedule approved by the Finance Committee on May 26, 2020: Improvement Category: Estimated Reimbursement At: Quantity: Water Main 1,014 LF $41.16 per LF Mainline Valves 3 EA $7,559 per EA Mainline Fittings 1 LS $3,755 LS 2. The reimbursement costs noted above are estimates and are subject to final field verification of quantity/measurements. 3 3. Reimbursement may be requested by the Developer following completion of as-built plans and following City’s acceptance of the Improvements categorized above. 4. All requests for reimbursement shall be made in writing and shall be reviewed for approval by the City Public Works and Development Director. The recommendation of the City Public Works and Development Director shall be forwarded to the Finance Committee and Public Works and Safety Committee for consideration. 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 development or cause or result in the loss of a lot/unit/building within the development. SECTION V : TIME OF COMPLETION OF IMPROVEMENTS The improvements set forth in Section III, Improvements, shall be completed by the Developer within one (1) year from the signing of this Agreement or prior to occupancy of any unit(s)/building(s). SECTION VI : AS-BUILT CONSTRUCTION PLANS For private utilities the Developer can use its contractor or authorize the 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 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 and 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 any other Improvements or obligations that may be outstanding at the time that Final Acceptance is granted. 4 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 water main, (excluding those facilities which are to be owned and maintained by the developer) 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, 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 and shall not negatively impact the building or any of its tenants. 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 development necessary: 1. The water facilities required to serve the building are connected with an operational system as required herein. SECTION IX : INSPECTION AND ADMINISTRATION FEES Developer shall pay and reimburse the City, 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 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 X : MISCELLANEOUS REQUIREMENTS The Developer shall: 1. Easements: Provide any easements on Developer's land deemed necessary by the Public Works and Development Director or his designee prior to accepting any public improvements and prior to any occupancy being grated for the use of the building. 5 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. Permits: Provide and submit to the City upon the City’s request, valid copies of any and all governmental agency permits. 5. Removal of Topsoil: The Developer agrees that no topsoil shall be removed from the development without approval from the City Engineer of which said approval shall not be unreasonably withheld. 6. Debris: Have ultimate responsibility for cleaning up debris that has blown from buildings under construction within the development until such time as all Improvements have been installed and building occupancy has been granted. 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. 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 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 water main 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. 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) Indemnification and 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 6 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 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 written 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 waiving 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. SECTION XIV : CITY RESPONSIBILITY FOR IMPROVEMENTS: The City shall not be responsible to perform repair or maintenance on any Improvements until the Improvements have been accepted by the City. After acceptance by the City, the City shall be responsible for the repair and maintenance of the improvements, including the repairs and replacement of any Developer- owned asphalt, concrete, curb, landscaping or building damaged as a result of any such repair or maintenance. SECTION XV : AGREEMENT FOR BENEFIT OF PURCHASERS: The Developer shall agree that in addition to the City's rights herein, the provisions of this Agreement shall be for the benefit of any possible purchaser of this lot. Further, that the sale of this lot shall not release the 7 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 Department of Public Works and Development. SECTION XVI : 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. 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 the building subject to the provision of Section XVII, Building and Occupancy Permits. SECTION XVII : BUILDING AND OCCUPANCY PERMITS: It is expressly understood and agreed that no occupancy permit shall be issued until the City Engineer or his designee has determined that: 1. All parameters of Plan Commission Resolution #063-2019 has been met to the satisfaction of the Planning Manager. 2. Any negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Public Works and Development Director. 3. A letter of credit or cash deposit remains on file to guarantee compliance with any other obligations under the agreement. 4. A Resolution of the dedication and acceptance of Improvements is approved by the City. 5. The Developer is not in default of any aspect of this Agreement. SECTION XVIII : 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 XIX : FINANCIAL GUARANTEES: 1. CASH DEPOSIT: Concurrent with the execution of this Agreement by the City, the Developer shall file with the City a Cash Deposit, in the amount of $287,539.14 which amount shall be approximately 120% of the estimated cost of improvements and other obligations pursuant to this Agreement. 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. If at any time: 8 a) 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 Developer fails to maintain a cash deposit in an amount approved by City Engineer to pay the costs of Improvements in the Development 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 Cash Deposit, but attributable to the subject development shall be provided to the City. 3. Reduction of Cash Deposit 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)(1)(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 $3,000.00 balance in the Developer's Deposit. No reduction of the 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, without notice or hearing, 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. This provision constitutes the Developer’s consent to the installation by the City of all Improvements required by this Agreement and constitutes the Developer’s waiver of notice and consent to all special assessment proceedings as described in Section 66.0703(7)(b), Wis. Statutes. 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 XX : 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 XXII, 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 9 constitute a waiver, or relieve the Developer from ultimate responsibility for the design, performance, and function of the Development and related infrastructure. SECTION XXI : 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 XXII : 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 XXIII : 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: Kwik Trip, Inc. 1626 Oak St La Crosse WI 54602 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 XXIV : RECORDING This Agreement shall be recorded against the Development property and shall run with the land. 10 SECTION XXV : PARTIES TO THE AGREEMENT IN WITNESS HEREOF, Developer has caused this Agreement to be signed by its appropriate officer(s) and their seals to be hereunto affixed in duplicate original counterparts on the date and year first written above. A. Kwik Trip, Inc.: By: _______________________________ Its: ________________________________ STATE OF WISCONSIN ) SS _____________ COUNTY ) PERSONALLY came before me this ____day of _____________, 2020, ______________________________, 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. B. CITY OF MUSKEGO: BY: Richard R. Petfalski, Jr., Mayor BY: Sharon Mueller, City Clerk-Treasurer STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this _____ day of ______________,2020, the above named Richard R. Petfalski, Jr., 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 _____________, 2020. Notary Public-State of Wisconsin My Commission Expires 11 CERTIFICATION This is to certify that the foregoing is a true and correct copy of the Developer's Agreement for Kwik Trip, Muskego, Wisconsin, as entered into on the ____ day of _____________, 2020 by and between Kwik Trip, Inc., and the City of Muskego, pursuant to the authorization by the Common Council from their meeting on the _____ day of ____________, 2020. BY THE COMMON COUNCIL ________________________ Sharon Mueller, City Clerk-Treasurer SUBSCRIBED AND SWORN TO BEFORE ME This ______day of ___________, 2020. My commission expires This instrument drafted by: Jeffrey J. Warchol, City Attorney City of Muskego W182 S8200 Racine Avenue Muskego, WI 53150 12