CCR2022.025-DA - MKS-EP (Mallard)MALLARD RESERVE
DEVELOPER'S AGREEMENT
This Agreement, made this day of 2022
by and between MK/S-EP, LLC. (the "Developer") and the City
of Muskego, a municipal corporation of the State of Wisconsin,
located in Waukesha County, hereinafter called the "City".
WITNESSETH
WHEREAS, the Developer has submitted for approval by the
City the development plans for the Mallard Reserve
subdivision, on a part of the lands described as:
Lot 1 of Certified Survey Map No. 12212, being part of
Government Lot 3 in the Fractional Southwest 114 of Section
13, and part of the Southwest 114 of the Southeast 114 of
Section 13, in Township 5 North, Range 20 East, in the City of
Muskego, Waukesha County, Wisconsin, recorded August 5,
2021 as Document No. 4606785. Containing 45.5045 acres.
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
Agreement, without cost to City; and
Recording Area
Name and Return Address
City of Muskego
Planning Division
W 182 S8200 Racine Ave.
Muskego, WI 53150
Parcel ID # (PIN):
MSKC 2211.996.003
universally applied as of the date of this
WHEREAS, The Public Works & Development Director 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 1 : DEVELOPMENT
LAND USE. The Development, as approved by Plan Commission Resolution #024-2021 and further
modified by Resolution #068-2021, consists of forty-five (45) single-family lots, along a newly publicly
dedicated roadway, with the features per the referenced resolution.
2. PHASING/IMPROVEMENTS. Developer and City agree that this Agreement is for the installation of
public and private improvements in one phase consisting of water, sanitary sewer, storm sewer,
stormwater improvements, landscaping, grading and roadway work and per the documents approved
by Plan Commission Resolution #024-2021 and further modified by Resolution #068-2021.
SECTION II: PLATTING/ZONING
1. This Developer's Agreement addresses the development of land for the forty-five (45) single-family lots,
all being under the Provisions of Sections 392 and 400 of the Municipal Code, and under the
requirements of PD (Mallard Reserve Planned Development) zoning district, based on the underlying
RS-2 — Suburban Residence District and SW — Shoreland Wetland District.
2. Developer shall entirely at its expense:
a) Prior to beginning any work related to the public improvements discussed herein, delivery of a Letter of
Credit in the amount required herein for the construction of improvements required by this Agreement.
No construction activity related to any public improvements may commence until this Agreement has
been executed and recorded, and the Letter of Credit has been tendered.
b) Provide the City with title evidence showing that upon recording the final documents, the City will have
good, indefeasible title to all interests in land to be dedicated or conveyed to the City by the various
documents.
c) 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.
d) Place and install monuments required by State Statute or City Ordinance following completion of
improvement.
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, sanitary sewer, stormwater management facilities and roadway
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, MMSD 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:
Construct, install, furnish, and provide without cost to City, a complete sanitary sewage collection system
throughout the entire Development, and including offsite improvements necessary to provide such system
(including, but not limited to, the sanitary sewer located on the City's adjacent conservation property), as
approved by the Public Works & Development Director or his designee and the Public Works Committee in
accordance with the plans, specifications and drawings on file in the Public Works & Development
Department.
2. Complete, to the satisfaction of the Public Works & Development 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 development, and including off -site improvements necessary to provide such
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system, as approved by the Public Works & Development Director or his designee and Public Works and
Safety Committee and in accordance with the plans and specifications on file in the Public Works &
Development 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:
Grade and improve all roads and streets in accordance with the plans and specifications approved by the
Public Works & Safety Committee, including off -site improvements necessary to provide such roads and
streets, including grading and gravel, curb and gutter, and asphalt street improvements, as approved by
the Public Works & Development Director or his designee and Public Works & Safety Committee as
indicated in the plans and specifications on file with the Public Works & Development 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:
Construct, install, furnish and provide facilities as approved by the Public Works & Development Director or
his designee and Public Works & Safety Committee for storm and surface water drainage throughout the
entire Development and off -site improvements as necessary, all in accordance with the plans and
specifications on file in the Public Works & Development 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 & Development Director or his designee and Public Works & Safety Committee in accordance with
the plans and specifications on file in the Public Works & Development Department. Restore with topsoil
and seed. Establish dense vegetation.
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 Public Works & Development Director 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.
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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 & Development 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. Install new landscaping throughout the development, as to be approved by
the Public Works & Development Department.
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 and in accordance
with street tree and landscape plans on file in the Public Works & Development Department that are to be
approved by the Planning Manager and City Forester. Street trees, which are defined as the trees located
along the internal Subdivision roads in the 5' wide landscape easement, shall be planted by the Developer
prior to the surface course of asphalt and no later than 2 years after final acceptance of the Improvements.
All other landscaping shown on the aforementioned plans shall be installed following the construction of the
binder course of asphalt.
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:
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 Public Works & Development Director, 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 -site and off -site, in accordance with the Erosion
Control Plan as approved by the Public Works & Development Director or his designee and Public Works &
Safety Committee and in accordance with the plans and specifications on file in the Public Works &
Development 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.
SECTION IV: ADDITIONAL IMPROVEMENTS
The Developer hereby agrees that if, at any time after plan approval and during construction of the
Improvements, the Public Works & Development Director or his designee determines that modifications to the
plans including additional Improvements such as additional drainage ways, erosion control measures, and
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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, 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 in a form acceptable to the City until such time as
the final surface course of pavement is completed.
If the City receives notice of the intention to terminate the Letter of Credit prior to completion of the final surface
course pavement, such notice shall be considered a failure to complete improvements in accordance with this
agreement and shall entitle the City to immediately draw against the Letter of Credit.
SECTION 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 the 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.
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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
sanitary sewer, storm sewer, water main and roadway improvements, (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 Public Works & Development Director 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
Public Works & Development Director deems other items relating to the construction of the development
necessary:
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 & Development Director or his designee by a Registered Land
Surveyor that all lot grading conforms to the Master Grading Plan or the Interim Master Grading Plan and
the as -built grading plan has been submitted to the Public Works & Development Director and he/she has
verified all grades meet City standards.
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
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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 &
Development Director or his designee prior to accepting any public improvements and prior to any
occupancy being granted for the use of any of the building(s).
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 Public Works & Development Director.
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 development
without approval from the Public Works & Development Director 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 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 Public Works & Development Director. 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
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 all 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 final acceptance of each Improvement detailed in Section III. The Developer shall pay for any
damages to City property resulting from such faulty materials or workmanship. This guarantee shall not be a
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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
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
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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. 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
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 : RISK OF PROCEEDING WITH IMPROVEMENTS
PRIOR TO APPROVAL 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 Public Works & Development Director or his designee.
SECTION XVI : 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
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 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.
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 XVIII, Building and Occupancy Permits.
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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. All parameters of Plan Commission Resolution #024-2021 and further modified by Resolution #068-
2021 have 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 & Development Director.
3. A Letter of Credit 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.
6. 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 and/or occupancy permits if Developer
is in violation of this Agreement, but no permits and/or occupancy shall be unreasonably withheld.
SECTION XX : FINANCIAL GUARANTEES:
Letter of Credit: Concurrent with the execution of this Agreement by the City, the Developer shall file with
the City a Letter of Credit, setting forth terms and conditions upon which the City may draw upon the same,
in the City Attorney approved form, in the amount of $3,853,894.00 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:
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 Letter of Credit on file with the City is dated to expire sixty (60) days prior to the expiration of
the one (1) year period for completion of the Improvements, if such Letter of Credit is not timely
extended, renewed or replaced, per the terms of this Agreement and the Improvements will not be
dedicated to or accepted by the City before the expiration of the Letter of Credit, or
d) The Developer fails to maintain a Letter of Credit in an amount approved by Public Works &
Development Director 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.
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2. Invoices: All invoices documenting public Improvements shall be provided to the City.
3. Reduction of Letter of Credit: The Developer shall provide the Public Works & Development Director or his
designee with a written request accompanied by: invoices for work completed for which a release is being
requested, breakdown of invoices in the format of the Public Improvement Cost Breakdown form and
signed original lien waivers for all work which is subject of the release request. The Public Works &
Development Director or his designee will process all requests in accordance with policies adopted by the
Finance Committee, as may be amended from time to time. The Public Works & Development Director
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 Public Works & Development Director; 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. In the event the Letter of Credit requires renewal, the City shall reduce the required amount of
the Letter of Credit to 120% of the amount of the outstanding Improvements.
4. DEVELOPER'S DEPOSIT: The Developer shall maintain a $10,000.00 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 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.
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.
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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, and until the Final Plat has been
recorded.
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:
Community Development Department - City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150
(262) 679-4136
To Developer:
MK/S-EP, LLC.
C/O Mike Kaerek
11600 W. Lincoln Avenue
West Allis, WI 53227
(414) 321-5300
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 Development property and shall run with the land.
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SECTION XXVII : 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. MK/S-EP, LLC.:
go
Michael J. Kaerek
Its: Member
STATE OF WISCONSIN )
SS
COUNTY )
PERSONALLY came before me this day of , 20223
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:
no
M.
Richard R. Petfalski, Jr., Mayor
Sharon Mueller, City Clerk -Treasurer
STATE OF WISCONSIN )
SS
WAUKESHA COUNTY )
PERSONALLY came before me this day of , 2022, 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 1202. _
Notary Public -State of Wisconsin
My Commission Expires
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CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Developer's Agreement for Mallard
Reserve, Muskego, Wisconsin, as entered into on the day of , 2022 by and between
MK/S-EP, LLC. and the City of Muskego, pursuant to the authorization by the Common Council from their
meeting on the day of , 202_.
SUBSCRIBED AND SWORN TO BEFORE ME
This day of , 2022.
My commission expires
This instrument drafted by:
Jeffrey J. Warchol, City Attorney
City of Muskego
W182 S8200 Racine Avenue
Muskego, WI 53150
BY THE COMMON COUNCIL
Sharon Mueller, City Clerk -Treasurer
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