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COMMON COUNCIL Packet - 11/24/2020CITY OF MUSKEGO COMMON COUNCIL AGENDA 11/24/2020 6:00 PM Muskego City Hall, W182 S8200 Racine Avenue CALL TO ORDER ROLL CALL STATEMENT OF PUBLIC NOTICE PUBLIC COMMENT City Residents and Taxpayers Only – Speakers will be limited to making comments related to all agenda items excluding closed session items relating to employment and labor issues. Comments will be limited to three minutes per speaker per agenda item. There will be no discussion by/with the Common Council during Public Comment. COMMUNICATIONS FROM THE MAYOR'S OFFICE Announcements Manchester Playground Equipment Update Cancellation of the December 22, 2020 Finance Committee and Common Council Meetings Approval to Order Salt Conveyor Belt in 2020. This item was approved in the 2021 Capital Budget. Request for Proposal for the Refuse/Recycling Contract CONSENT AGENDA Approval of Operator Licenses Approval of Minutes - November 10, 2020 Resolution #096-2020 - Approval of the Water Bugs Ski Team, Inc. Lease Agreement for Idle Isle Pavilion Resolution #097-2020 - Approval of Conservation Easements for the Green Infrastructure Soil Amendments Project Resolution #098-2020 - Approval of Dedication of Public Improvements for Machi Packet Page 1 Common Council Agenda 2 11/24/2020 6:00:00 PM Properties BV LLC (Harvest Court) Resolution #099-2020 - Approval of Reduction of Cash Deposit for Machi Properties BV LLC (Harvest Court) Resolution #100-2020 - Approval of Professional Service Agreement with HydroCorp to Provide Cross Connection Control Program NEW BUSINESS REVIEW OF COMMITTEE REPORTS Finance Committee - October 27, 2020 Plan Commission - October 6, 2020 VOUCHER APPROVAL Voucher Report Utility Vouchers Tax Vouchers General Fund Vouchers Wire Transfers for Debt Service Wire Transfers for Payroll/Invoice Transmittals CITY OFFICIALS' REPORTS COMMUNICATIONS AND MISCELLANEOUS BUSINESS AS AUTHORIZED BY LAW Updates from Aldermanic Liaisons: Muskego Senior Taxi - Alderperson Wolfe Muskego Festival Committee - Alderperson Hammel Muskego Historical Society - Alderperson Kapusta Little Muskego Lake District - Alderperson Engelhardt Advanced Disposal Services Emerald Park Landfill Standing Committee - Alderperson Madden Packet Page 2 Common Council Agenda 3 11/24/2020 6:00:00 PM FUTURE AGENDA ITEMS ADJOURNMENT NOTICE IT IS POSSIBLE THAT MEMBERS OF AND POSSIBLY A QUORUM OF MEMBERS OF OTHER GOVERNMENTAL BODIES OF THE MUNICIPALITY MAY BE IN ATTENDANCE AT THE ABOVE-STATED MEETING TO GATHER INFORMATION; NO ACTION WILL BE TAKEN BY ANY GOVERNMENTAL BODY AT THE ABOVE-STATED MEETING OTHER THAN THE GOVERNMENTAL BODY SPECIFICALLY REFERRED TO ABOVE IN THIS NOTICE. ALSO, UPON REASONABLE NOTICE, EFFORTS WILL BE MADE TO ACCOMMODATE THE NEEDS OF DISABLED INDIVIDUALS THROUGH APPROPRIATE AIDS AND SERVICES. FOR ADDITIONAL INFORMATION OR TO REQUEST THIS SERVICE, CONTACT MUSKEGO CITY HALL, (262) 679-4100. Packet Page 3 Reports and Presentations to Finance Committee and Common Council To: Finance Committee & Common Council From:Scott Kroeger Department: Public Works and Development Subject: Purchase of Salt Conveyor Belt Date:November 24, 2020 DPW was approved in 2021 to purchase a Salt Conveyor Belt as a Capital Item. This item takes about 10 weeks to build. DPW would like to use this item in March 2021 to fill up our salt sheds. The vendor requires a letter of intent from the City of Muskego to ensure the item will be purchased in 2021 before they will start building it. The City of Muskego will provide the 45% down payment in 2021. Additionally, I have attached the invoice for the Salt Conveyor Belt. The price for the Salt Conveyor Belt comes in below the budgeted amount. Key Issues for Consideration: Attachments 1. Invoice for Salt Conveyor Belt Recommendation for Action by Committee and/or Council: Approve the Finance Department to write a letter of intent to purchase the Salt Conveyor Belt in 2021 which is an approved Capital Item in 2021. Date of Committee Action: Finance Committee November 24, 2020 Planned Date of Council Action (if required): November 24, 2020 Total $ Needed: $142,750 Fiscal Note(s): N/A $ Budgeted: $145,000 Expenditure Account(s) to Be Used: # 410.08.93.51.6536 (3/2019) Page 1 of 2 Approval to Order Salt Conveyor Belt in 2020. This item... Packet Page 4 Page 2 of 2 Approval to Order Salt Conveyor Belt in 2020. This item... Packet Page 5 OPERATOR LICENSE APPROVALS COMMON COUNCIL – 11/24/2020 Alex Beronja Amber Foster David Freund Yvonne Sobieski Christopher Wojciechowski Page 1 of 1 Approval of Operator Licenses Packet Page 6 Unapproved CITY OF MUSKEGO COMMON COUNCIL MINUTES November 10, 2020 6:00 PM Muskego City Hall, W182 S8200 Racine Avenue CALL TO ORDER Mayor Petfalski called the meeting to order at 6:00 p.m. ROLL CALL Present: Alderpersons Wolfe, Terrence, Kapusta, Engelhardt, Kubacki, Hammel, and Madden. Also present: Public Works & Development Director Kroeger, City Attorney Warchol, and Administrative Assistant Crisp. STATEMENT OF PUBLIC NOTICE Ms. Crisp stated that the meeting was noticed in accordance with the open meeting law. PUBLIC COMMENT None COMMUNICATIONS FROM THE MAYOR’S OFFICE Racine Avenue is done and open ahead of schedule. Waukesha Water will be starting soon. The return water from the Waukesha Water Project will be coming through New Berlin, Muskego, and Franklin. It will come in from Racine Ave, head down to College, to Moorland, to Durham, to North Cape, and down into Franklin. Plan Commission approved the use of the property on Racine and College as the staging area for their materials. Election last week went well. We had 17,000 plus voters come through which is a 94% turnout in Muskego. There were over 800 people a day in-person voting. They processed everything without any problems. Clerk’s office did a wonderful job. UNFINISHED BUSINESS Ordinance #1453 - An Ordinance to Amend the 2020 Comprehensive Plan of the City of Muskego (Mark and Lynda Troeger). Second Reading. Alderperson Kubacki moved to approve. Alderperson Madden seconded; motion passed unanimously. Ordinance #1454 - An Ordinance to Amend Various Sections of Chapters 392 and 400 of the Municipal Code of the City of Muskego. Second Reading. Alderperson Kubacki moved to approve. Alderperson Wolfe seconded; motion passed unanimously. Page 1 of 3 Approval of Minutes - November 10, 2020 Packet Page 7 Common Council Minutes 2 November 10, 2020 CONSENT AGENDA Alderperson Terrence moved to approve the items under Consent Agenda. Alderperson Wolfe seconded. Alderperson Kubacki pulled Resolution #095-2020; motion passed unanimously. The following were approved: An Operator’s License for Isabelle Czarnecki and Thomas Rakowski Approval of Minutes – October 27, 2020 Resolution #088-2020 - Approval of Letter of Credit Reduction for Pellmann Farm LLC Resolution #089-2020 - Approval of Independent Contractor Agreement for Inspection Services Resolution #090-2020 - Approval of a Certified Survey Map - Lynn Kurer Resolution #091-2020 - Approval of a Four-Lot Certified Survey Map - Bryon Hrin Resolution #092-2020 - Approval of a Second Four-Lot Certified Survey Map - Bryon Hrin Resolution #093-2020 - Approval of a Two-Lot Certified Survey Map - Bryon Hrin Resolution #094-2020 - Approval of Certified Survey Map - Mark and Lynda Troeger Alderperson Kubacki moved to defer Resolution #095-2020 - Approval of a Certified Survey Map – Weiss (Plan Commission deferred to Dec 1st). Alderperson Engelhardt seconded; motion passed unanimously. REVIEW OF COMMITTEE REPORTS Finance Committee Minutes – October 13, 2020 LICENSE APPROVAL Approval of Outside Area on the Side of Building as Part of the "Class B" Licensed Premise for The Local on Hillendale LLC, W191 S6409 Hillendale Drive, until Close. Alderperson Madden moved to approve. Alderperson Kubacki seconded; motion passed unanimously. Approval of a "Class B" License to Sell Fermented Malt Beverages and Intoxicating Liquor for Moo Inc. 2 (d/b/a Milk Can Hamburger & Custard) located at S73 W16770 Janesville Road. Licensed premise to include a 32' x 18' 8" patio area on the south side of the building - 7:00 am to Midnight. Alderperson Hammel moved to approve. Alderperson Engelhardt seconded; motion passed unanimously. Page 2 of 3 Approval of Minutes - November 10, 2020 Packet Page 8 Common Council Minutes 3 November 10, 2020 Approval of Outside Area on the East Side of Building as Part of the "Class B" Licensed Premise for Pop's Marketplace, LLC, S76 W17501 Janesville Road, from 11:00 am to 9:00 pm Alderperson Hammel moved to approve. Alderperson Terrence seconded; motion passed unanimously. VOUCHER APPROVAL Utility Vouchers Alderperson Wolfe made a motion to approve Utility Vouchers in the amount of $65,781.77. Alderperson Madden seconded; motion carried. Tax Vouchers Alderperson Wolfe made a motion to approve Tax Vouchers in the amount of $6,288.50. Alderperson Kubacki seconded; motion carried. General Fund Vouchers Alderperson Wolfe made a motion to approve General Fund Vouchers in the amount of $909,712.48. Alderperson Engelhardt seconded; motion carried. Wire Transfers for Payroll/Invoice Transmittals Alderperson Wolfe made a motion to approve Wire Transfers for Payroll/Invoice Transmittals in the amount of $363,716.61. Alderperson Hammel seconded; motion carried. CITY OFFICIAL’S REPORTS – None COMMUNICATIONS AND MISCELLANEOUS BUSINESS Little Muskego Lake District – Alderperson Engelhardt stated Meeting was held virtually last week. They are moving towards the purchase of a new cutter to replace old one. There is a potential buyer for the used one. They are in good shape financially. ADJOURNMENT Alderperson Hammel made a motion to adjourn at 6:08 p.m. Alderperson Engelhardt seconded; motion carried. Minutes taken and transcribed by Christine Crisp. Page 3 of 3 Approval of Minutes - November 10, 2020 Packet Page 9 COMMON COUNCIL – CITY OF MUSKEGO RESOLUTION #096-2020 APPROVAL OF THE WATER BUGS SKI TEAM, INC. LEASE AGREEMENT FOR IDLE ISLE PAVILION WHEREAS, on April 6, 2020, the Muskego Water Bugs Ski Team, Inc. entered into a Lease Agreement with the City of Muskego to use a portion of the Idle Isle Pavilion owned by the City for storage of its property; and WHEREAS, said Lease Agreement was to run from May 1, 2020 through April 30, 2022; and WHEREAS, the parties wish to terminate said Agreement and enter into a new Lease Agreement for a longer duration of time; and WHEREAS, a new Lease Agreement has been prepared by the City Attorney for said purpose; and WHEREAS, the Finance Committee has reviewed and recommended approval of the Lease Agreement between the Water Bugs Ski Team, Inc. and the City of Muskego for Idle Isle Pavilion. NOW, THEREFORE, BE IT RESOLVED that the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve the attached Water Bugs Ski Team, Inc, and City of Muskego Lease Agreement for the Idle Isle Pavilion. BE IT FURTHER RESOLVED that the Mayor and Clerk-Treasurer are hereby authorized to sign the Agreement and the City Attorney is authorized to make substantive changes to it as may be necessary in order to preserve the general intent thereof. DATED THIS 24th DAY OF NOVEMBER 2020. SPONSORED BY: FINANCE COMMITTEE This is to certify that this is a true and accurate copy of Resolution #096-2020 which was adopted by the Common Council of the City of Muskego. Deputy Clerk Page 1 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 10 1 WATER BUGS SKI TEAM, INC. AND CITY OF MUSKEGO LEASE AGREEMENT FOR THE IDLE ISLE PAVILION The Muskego Water Bugs Ski Team, Inc. (hereinafter, the “Water Bugs”) and the City of Muskego (hereinafter, the “City”) hereby enter into this Lease Agreement, consisting of eight (8) pages including Exhibit “A”, for the use of a portion of the Idle Isle Pavilion owned by the City and located at W182 S6666 Hardtke Drive, Muskego, Wisconsin 53150. Section One: Description of Premises Water Bugs shall have exclusive use of the following premises of the Idle Isle Pavilion: 1. One storage area comprised of 987 square feet as depicted by the number “1” on Exhibit “A” attached hereto. 2. Water Bugs shall not have the use of any area in the Pavilion not described herein. Section Two: Term of Lease The term of this Lease shall be for ten (10) years commencing on January 1, 2021 and terminating on December 31, 2030. In the event the Water Bugs cease to exist during the term of this Lease, the Agreement shall terminate on the day that the City receives notice of its non-existence. In this event, rent is due through the date that Water Bugs ceases to exist or the date it removes its property from the premises, whichever occurs latest. In the event the Water Bugs are not able to obtain a Special Use Permit from the City, Water Bugs may terminate this Lease Agreement upon thirty (30) days written notice to City with rent due to City through the date it removes its property from the premises. Section Three: Lease Payments Rent shall be paid by Water Bugs to City on an annual basis in the amount of $1.00 per year due on January 2nd of each calendar year. All utilities are included in the annual rental fee. Section Four: Contact Persons Contact person from Water Bugs will be the Water Bugs President. The Water Bugs will also be responsible for listing an alternate contact. These names will be submitted to the Page 2 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 11 2 City. The City's contact person will be the Recreation Manager. The alternate contact person will be the Director of Public Works & Development. Section Five: Rules and Regulations The Water Bugs will agree to abide by the following: A. The Water Bugs shall be solely responsible for maintaining the rental property in good condition during the term of this Agreement. Any improvements, additions or install improvements are subject to prior review and approval by the City. B. Water Bugs agree not to allow any person to live or sleep on the premises without the permission of the duly authorized official of the City. C. Water Bugs agree to employ competent persons to be in attendance on premises used by them, and that at no time will there be less than one adult immediately in charge of said premises during hours of their operation. D. Water Bugs agree that they will not allow rubbish to accumulate in any form on the premises used by them or at a prescribed distance from such facility used by them. Water Bugs must provide adequate waste receptacles in the building and shall also be responsible for removing waste from their operation from the facility. Water Bugs must keep clean the interior bathroom of the building. The City will not provide garbage service for their operation. E. The Water Bugs shall be solely responsible for all damage to the premises caused by agents, employees, or volunteers working under them. The Water Bugs further agree that they will, at their own expense, repair any and all damages to the property of the City. Any repairs shall be approved by the City prior to commencement of work. F. The Water Bugs agree that no sign or advertising matter of any kind shall be displayed on the building or grounds at Idle Isle Park unless approved by the City. G. The Water Bugs shall not, without written consent of the City, sublet the premises or any part thereof, nor assign, hypothecate or mortgage this Agreement. H. Those persons representing the City reserve the right, exercisable at any time during the term hereof, or extension thereof, to enter the premises described herein at any Page 3 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 12 3 time and without notice for the purpose of inspection and making repairs to the building for the proper preservation and maintenance of said premises. I. If the premises are destroyed by fire, flood, casualty, war, or any other purpose, then this Agreement at the option of either party shall cease and come to an end. But in case of any partial damage, the City may restore the premises to the previous condition and this Agreement shall continue in effect beginning upon completion of the restoration of the premises. Rent shall be prorated accordingly. J. No parking of vehicles is allowed at any time on the grass or on the asphalt paths around the building or grounds on Idle Isle Park without the consent of the City. K. No parking of vehicles is allowed anywhere on the premises at Idle Park on July 3rd without the consent of the City. L. No storage of equipment is allowed outside of the pavilion without the consent of the City. Section Six: Legal Provisions Other Governmental Regulations. This Agreement is subject to any and all governmental regulations as they may be amended from time to time over the term of this Agreement. If the Agreement is in conflict with said regulations, the regulations must be followed. Assignment. Neither the Water Bugs nor the City may assign its interest under this Agreement without the other party’s prior written consent, which may be granted or withheld in such party's sole reasonable discretion. Notices. All notices permitted or required by this Agreement shall be given in writing and shall be considered given upon receipt if hand delivered to the party or person intended, or upon facsimile transmission to the fax numbers set forth herein, or email transmission at the email addresses set forth below, or three (3) business days after deposit in the United States mail, postage prepaid, by certified mail, return receipt requested, addressed by name and address to the party or person intended as follows: Page 4 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 13 4 To the Water Bugs: Muskego Water Bugs Ski Team, Inc. P.O. Box 111 Muskego, WI 53150 Attn: President Fax No.: __________________________ Email: muskegowaterbugs@gmail.com To the City: City of Muskego W182 S8200 Racine Avenue Muskego, WI 53150 Attn: City Clerk-Treasurer Fax No.: 262-679-4106 Email: finance&adminstaff@cityofmuskego.org Governing Law. This Agreement shall be interpreted and construed according to the laws of the State of Wisconsin. Any legal action regarding this Agreement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. Severability of Provisions. If any of the terms or conditions contained herein shall be declared to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions and conditions of this Agreement, or the application of such to persons or circumstances other than those to which it is declared invalid or unenforceable, shall not be affected thereby and shall remain in full force and effect and shall be valid and enforceable to the full extent permitted by law. Captions. The captions in this Agreement are inserted only as matters of convenience and for reference and in no way define or limit the scope or intent of the various provisions, terms or conditions hereof. Binding Effect. The terms and conditions of this Agreement shall be binding upon and benefit the parties hereto and their respective successors and permitted assigns. Entire Agreement. This writing constitutes the entire Agreement between the parties hereto, and all prior statements, letters of intent, representations and offers, if any, are hereby terminated. This Agreement may be modified or amended only by written instrument signed by both parties. This Agreement terminates the Lease Agreement between the Water Bugs and the City dated April 6, 2020 for the period of May 1, 2020 through April 20, 2022. Page 5 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 14 5 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original. Representations as to Authority. Each party to this Agreement represents and warrants that: (a) it has the power and authority to consummate the transactions contemplated by this Agreement; (b) all proceedings necessary for it to consummate the transactions contemplated by this Agreement have been duly taken in accordance with law; and (c) the persons executing this Agreement on behalf of it have been duly authorized to execute this Agreement. Termination. The Water Bugs agree that at the termination of this Lease or any renewal thereof, they will promptly surrender the premises to the City and will have removed therefrom all of its appliances and equipment, placed thereon, in the storage facility. Any appliances or equipment remaining on the premises thirty (30) days after expiration or other termination of this Lease shall be deemed abandoned and shall become property of the City. The Water Bugs agree that they will peaceably vacate all premises occupied by them and deliver to the City in good condition all premises used b y them, ordinary wear and tear excepted. Section Seven: Insurance Water Bugs shall procure and maintain during the term of this Lease at its expense, comprehensive general public liability insurance, covering the Premises and the insureds against loss for personal injury and property damage. The coverage under such insurance to be not less than One million dollars ($1,000,000.00) for any person injured, Two million dollars ($2,000,000.00) for any one accident, and Fifty thousand dollars ($50,000.00) for property damage or such other coverage as the parties may agree in writing from time to time. The City shall approve the coverage. Water Bugs shall also carry during the term of this Lease, fire insurance with extended coverage, vandalism and malicious mischief and theft and the mysterious disappearance endorsements covering the contents of the Premises and all alterations, additions and leasehold improvements in the amount of their full replacement value. Such policies shall cover both City and Water Bugs, as their interest may appear. Before taking possession of the Premises, Water Bugs Page 6 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 15 6 shall present to City Certificates of Insurance from the insurance companies showing such coverage, along with the following separate written Endorsements: 1) Naming the City as an Additional Insured 2) Waiver of Subrogation 3) Primary and Non-Contributory Insurance 4) 30-day Notice of Cancellation Section Eight: Indemnification Water Bugs shall indemnify and hold harmless City from and against all claims arising from Water Bugs’ use of the Premises, or from the conduct of Water Bugs’ business or from any activity, work, or things done, permitted or suffered by Water Bugs in or about the Premises and shall further indemnify and hold City harmless from and against any and all claims arising from any breach or default in the performance of any obligation on Water Bugs’ part to be performed under the terms of this Lease, or arising from any intentional tort or negligence of the Water Bugs, or any of Water Bugs’ agents, contractors, or employees, and against all costs, attorney fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon, and in case any action or proceeding be brought against City by reason of any such claim, Water Bugs, upon notice from City, shall defend the same at Water Bugs’ expense by counsel satisfactory to City. Section Nine: Dispute Resolution In the event of a dispute between the Water Bugs and the City arising out of this Agreement or the use of the Facilities, the Water Bugs and the City agree to attempt to first resolve such dispute through mediation. In the event that the Water Bugs and the City cannot agree upon a mediator, they shall each propose a qualified mediator, and such qualified mediators shall choose a qualified third-party who will mediate the dispute. In the event that mediation does not resolve the dispute, either party may utilize all remedies as provided by law. Section Ten: Default If default is made by Water Bugs in payment of the rent, or any part thereof, and such default shall continue for ten (10) calendar days after notice by City to Water Bugs to pay the same, or if either party shall be in default under any other provision of this lease and Page 7 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 16 7 such default shall continue to exist after receipt by the defaulting party of thirty (30) calendar days’ notice thereof, City may terminate this lease and take possession of the leased premises (if Water Bugs be the defaulting party) or Water Bugs may terminate this lease and surrender possession of the leased premises to City (if City be the defaulting party). Such termination of lease shall be without prejudice to the right of recovering damages against the defaulting party for breach of this lease. IN WITNESS WHEREOF, the parties have executed this Agreement. WATER BUGS SKI TEAM, INC. CITY OF MUSKEGO Water Bugs President Date Rick Petfalski, Mayor Date Water Bugs Secretary Date Sharon Mueller, Director of Finance Date T:\Departments\Attorney\Agreements\Waterbugs Agreements\Water Bugs Lease Agreement for Idle Isle Pavilion.docx Page 8 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 17 8 Page 9 of 9 Resolution #096-2020 - Approval of the Water Bugs Ski... Packet Page 18 COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #097-2019 APPROVAL OF LIMITED TERM CONSERVATION EASEMENTS FOR GREEN INFRASTRUCTURE WHEREAS, As part of the City’s Green Infrastructure Reimbursement Funds Agreement, Conservation Easements need to be granted to the Milwaukee Metropolitan Sewerage District for the Green Infrastructure Soil Amendments Project; and WHEREAS, The purpose of the Easements is to require the City to keep, preserve, and maintain the Green Infrastructure installed on its property; and WHEREAS, As part of the Project, Limited Term Conservation Easements will need to be provided on the following City-owned properties for a period of ten years beginning on January 1, 2021: Kurth Park Lions Park Manchester Hill Park Moorland Park New City Hall Sand Hill Park Schmidt Park Park Arthur Horn Park and Field Idle Isle Park Jensen Park Bluhm Farm Park WHEREAS, The Finance Committee has reviewed the Conservation Easements and has recommended approval. NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve the attached Limited Term Conservation Easements granted to the Milwaukee Metropolitan Sewerage District. BE IT FURTHER RESOLVED That the Mayor is authorized to sign the Easements and the City Attorney is authorized to make substantive changes as may be necessary in order to preserve the general intent thereof. DATED THIS 24TH DAY OF NOVEMBER, 2020. SPONSORED BY FINANCE COMMITTEE This is to certify that this is a true and accurate copy of Resolution #097-2020, which was adopted by the Common Council of the City of Muskego. ____________________________ Deputy Clerk 11/20jmb Page 1 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 19 Reports and Presentations to Finance Committee and Common Council To: Finance Committee & Common Council From:Scott Kroeger Department: Public Works and Development Subject: Soils Amendments – MMSD Conservation Easement Date:November 24, 2020 The City of Muskego will be using Green Infrastructure reimbursement funds for the green infrastructure soil amendments project throughout the City of Muskego Parks. Conservation easements need to be provided as part of the reimbursement arrangement. The City attorney and I have reviewed these conservation easements to make sure it follows standard City of Muskego language. Key Issues for Consideration: Attachments 1. Soil Amendments Conservation Easements Recommendation for Action by Committee and/or Council: Approve the conservation easements for soil amendment project as part of the City of Muskego’s Green Infrastructure Reimbursement Funds Agreement. Date of Committee Action: Finance Committee November 24, 2020 Planned Date of Council Action (if required): November 24, 2020 Total $ Needed: N/A Fiscal Note(s): N/A $ Budgeted: $0.00 Expenditure Account(s) to Be Used: # N/A (3/2019) Page 2 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 20 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the maps shown in Exhibit B (the Property). The Property is at S79W18200 Horn Park Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 187,570 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 37,514 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2222988 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 3 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 21 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 4 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 22 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 5 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 23 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 6 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 24 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 7 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 25 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 8 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 26 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 9 of 137 Resolution #097-2020 - Approval of Conservation... Packet Page 27 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 10 of... Resolution #097-2020 - Approval of Conservation... Packet Page 28 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 11 of... Resolution #097-2020 - Approval of Conservation... Packet Page 29 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: S79W18200 Horn Park Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2222988 Legal Description: PT NE1/4NW1/4 SEC 16 T5N R20E COM 634 FT W OF NE COR & S0 20 W 528.29 FT THE BGN, TH W 700 FT, TH S TO RR, TH N72 1/4 E 324.72 FT, TH N 429 FT, TH E 397.06 FT TH N0 20 E 33 FT TO BGN. ALSO COM 634 FT W OF NE COR, TH S37.5 FT, TH S 491 FT, TH S89 W 700 FT, TH NLY TO 115.4 S OF N LI, TH ELY 663.87 FT, TH E37.5 FT, TH N 36.77 FT TO BGN VOL 520 PG 86, VOL 396 PG 58 PT SW1/4SE1/4 SEC 16 T5N R20E COM IN S LI 731.80 FT W OF SE COR, TH N 900.74 FT TH SWLY 414.12 FT, TH S 585.09 FT, TH E 260.78 FT TO BGN 4.056 AC VOL 1016/524 DEEDS ALSO 16 AC W1/2 NW1/4 SEC 16 VOL 1159/400 DEEDS ALSO OUTLOT 2 CSM 9943 PT NE1/4 NW1/4 SEC 16 T5N R20E APPROX 3.43 ACRES 3237571 WD 12/04 Page 12 of... Resolution #097-2020 - Approval of Conservation... Packet Page 30 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 13 of... Resolution #097-2020 - Approval of Conservation... Packet Page 31 12 Page 14 of... Resolution #097-2020 - Approval of Conservation... Packet Page 32 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at W182S6666 Hardtke Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 84,079 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 16,816 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2174959 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 15 of... Resolution #097-2020 - Approval of Conservation... Packet Page 33 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 16 of... Resolution #097-2020 - Approval of Conservation... Packet Page 34 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 17 of... Resolution #097-2020 - Approval of Conservation... Packet Page 35 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 18 of... Resolution #097-2020 - Approval of Conservation... Packet Page 36 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 19 of... Resolution #097-2020 - Approval of Conservation... Packet Page 37 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 20 of... Resolution #097-2020 - Approval of Conservation... Packet Page 38 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 21 of... Resolution #097-2020 - Approval of Conservation... Packet Page 39 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 22 of... Resolution #097-2020 - Approval of Conservation... Packet Page 40 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 23 of... Resolution #097-2020 - Approval of Conservation... Packet Page 41 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: W182S6666 Hardtke Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2174959 Legal Description: PT W1/2 SEC 4 T5N R20E & PT SW1/4; COM CNTR SEC; E ON E/W 1/4 LI 39.06 FT TO CNTR RD; N30°49'W 85.0 FT; N35°18'W 567.94 FT CNTR RD; S42°36'W 278.48 FT TO W SHOR LI OF CHANNEL THE BGN; S17°05'E 253.20 FT; S82°20'W 328.05 FT; N81°55'W 372.0 FT; N55°20'W 126.05 FT; N29°23'E 311.88 FT; N50°29'E 71.06 FT; N68°59'E 181.66 FT; S84°22'E 129.1 FT; S54°17'E 172.33 FT; S34°44'E 134.0 FT TO BGN :: ALSO BRIDGE AS DESC; COM POINT SAME AS ABOVE; N42°36'E 16.08 FT TO W LI OF BRIDGE FLOOR THE BGN; S31°35'E 5.25 FT; N58°25'E 28.5 FT; N31°35'W 21 FT; S58°25'W 28.5 FT; S31°35'E 15.75 FT TO BGN :: VOL 1185/367 DEEDS Page 24 of... Resolution #097-2020 - Approval of Conservation... Packet Page 42 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 25 of... Resolution #097-2020 - Approval of Conservation... Packet Page 43 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at W185S6599 Agate Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 110,667 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 22,133 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2174197002 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and Page 26 of... Resolution #097-2020 - Approval of Conservation... Packet Page 44 2 conveyance of conservation easements to protect the natural, scenic, and open space values of real property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 27 of... Resolution #097-2020 - Approval of Conservation... Packet Page 45 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 28 of... Resolution #097-2020 - Approval of Conservation... Packet Page 46 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 29 of... Resolution #097-2020 - Approval of Conservation... Packet Page 47 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 30 of... Resolution #097-2020 - Approval of Conservation... Packet Page 48 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 31 of... Resolution #097-2020 - Approval of Conservation... Packet Page 49 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 32 of... Resolution #097-2020 - Approval of Conservation... Packet Page 50 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 33 of... Resolution #097-2020 - Approval of Conservation... Packet Page 51 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 34 of... Resolution #097-2020 - Approval of Conservation... Packet Page 52 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: W185S6599 Agate Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2174197002 Legal Description: LOTS 5, 6, & 7 BLK 15 JEWEL CREST SUBD PT NW1/4 SW1/4 SEC 4 T5N R20E :: ALSO A TRIANGLE PIECE OF LAND AS PLAYGROUND BETWEEN SILVER ST & DIAMOND ST & AGATE STREETS IN JEWEL CREST SUBD :: VOL 1078/405 Page 35 of... Resolution #097-2020 - Approval of Conservation... Packet Page 53 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 36 of... Resolution #097-2020 - Approval of Conservation... Packet Page 54 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at S70W14415 Belmont Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 310,813 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 62,163 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2201998002 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 37 of... Resolution #097-2020 - Approval of Conservation... Packet Page 55 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 38 of... Resolution #097-2020 - Approval of Conservation... Packet Page 56 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 39 of... Resolution #097-2020 - Approval of Conservation... Packet Page 57 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 40 of... Resolution #097-2020 - Approval of Conservation... Packet Page 58 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 41 of... Resolution #097-2020 - Approval of Conservation... Packet Page 59 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 42 of... Resolution #097-2020 - Approval of Conservation... Packet Page 60 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 43 of... Resolution #097-2020 - Approval of Conservation... Packet Page 61 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 44 of... Resolution #097-2020 - Approval of Conservation... Packet Page 62 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 45 of... Resolution #097-2020 - Approval of Conservation... Packet Page 63 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: S70W14415 Belmont Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2201998002 Legal Description: PT NE1/4 SEC 11 T5N R20E; COM N LI 833.50 FT E OF NW COR; E 897.60 FT; S6°10'W 333.26 FT; W 832.71 FT; N5°01'W 332.60 FT TO BGN :: EX WLY 30 FT RD :: VOL 1066/183 DEEDS Page 46 of... Resolution #097-2020 - Approval of Conservation... Packet Page 64 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 47 of... Resolution #097-2020 - Approval of Conservation... Packet Page 65 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at S77W18950 Lions Park Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 57,987 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 11,597 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2192990 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 48 of... Resolution #097-2020 - Approval of Conservation... Packet Page 66 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 49 of... Resolution #097-2020 - Approval of Conservation... Packet Page 67 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 50 of... Resolution #097-2020 - Approval of Conservation... Packet Page 68 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 51 of... Resolution #097-2020 - Approval of Conservation... Packet Page 69 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 52 of... Resolution #097-2020 - Approval of Conservation... Packet Page 70 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 53 of... Resolution #097-2020 - Approval of Conservation... Packet Page 71 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 54 of... Resolution #097-2020 - Approval of Conservation... Packet Page 72 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 55 of... Resolution #097-2020 - Approval of Conservation... Packet Page 73 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 56 of... Resolution #097-2020 - Approval of Conservation... Packet Page 74 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: S77W18950 Lions Park Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2192990 Legal Description: PT SE1/4 SE1/4 SEC 8 T5N R20E; LIONS PARK; COM E 1/16 COR; W 156 FT; S03°10'W 443 FT; N48°W 180 FT; N63°W 725 FT; E 766 FT TO BGN Page 57 of... Resolution #097-2020 - Approval of Conservation... Packet Page 75 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 58 of... Resolution #097-2020 - Approval of Conservation... Packet Page 76 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at W167S7650 Parkland Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 117,726 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 23,545 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2198990 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 59 of... Resolution #097-2020 - Approval of Conservation... Packet Page 77 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 60 of... Resolution #097-2020 - Approval of Conservation... Packet Page 78 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 61 of... Resolution #097-2020 - Approval of Conservation... Packet Page 79 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 62 of... Resolution #097-2020 - Approval of Conservation... Packet Page 80 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 63 of... Resolution #097-2020 - Approval of Conservation... Packet Page 81 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 64 of... Resolution #097-2020 - Approval of Conservation... Packet Page 82 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 65 of... Resolution #097-2020 - Approval of Conservation... Packet Page 83 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 66 of... Resolution #097-2020 - Approval of Conservation... Packet Page 84 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 67 of... Resolution #097-2020 - Approval of Conservation... Packet Page 85 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: W167S7650 Parkland Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2198990 Legal Description: PT SW1/4 SEC 10 T5N R20E MANCHESTER HILL PARK COM INTERSEC N & S LI BETW SEC 9 & 10 & 1/16 LI; E 20.40 CH; N 20.30 CH; E 5.27 CH; S 40.42 CH; E 4.95 CH; S 20.17 CH; W 10.05 CH; N 18.75 CH; W 8.42 CH; N11 3/4°E 4.80 CH; S63 3/4°W 11.90 CH; N TO BGN :: EX VOL 268/270 & EX VOL 291/46 & EX VOL 457/132 & EX VOL 515/531 & EX VOL 559/301 & EX VOL 596/361 & EX VOL 622/38 & EX VOL 677/134 & EX VOL 915/518 & EX VOL 918/611 & EX VOL 918/613 & EX VOL 1014/377 & EX VOL 1014/379 & EX VOL 1025/274 & EX VOL 1076/462 & EX VOL 1215/643 & EX VOL 1215/646 & EX VOL 1215/651 Page 68 of... Resolution #097-2020 - Approval of Conservation... Packet Page 86 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 69 of... Resolution #097-2020 - Approval of Conservation... Packet Page 87 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at W154S7105 Moorland Road, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 187,416 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 37,483 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2202999003 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 70 of... Resolution #097-2020 - Approval of Conservation... Packet Page 88 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 71 of... Resolution #097-2020 - Approval of Conservation... Packet Page 89 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 72 of... Resolution #097-2020 - Approval of Conservation... Packet Page 90 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 73 of... Resolution #097-2020 - Approval of Conservation... Packet Page 91 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 74 of... Resolution #097-2020 - Approval of Conservation... Packet Page 92 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 75 of... Resolution #097-2020 - Approval of Conservation... Packet Page 93 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 76 of... Resolution #097-2020 - Approval of Conservation... Packet Page 94 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 77 of... Resolution #097-2020 - Approval of Conservation... Packet Page 95 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 78 of... Resolution #097-2020 - Approval of Conservation... Packet Page 96 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: W154S7105 Moorland Road, Muskego, Wisconsin 53150 Tax Key: MSKC2202999003 Legal Description: LOT 1 CERT SURV 9592 VOL 88/80 REC AS DOC# 3011954 REDIV OUTLOT 1 & OUTLOT 2 CSM 9215 & OUTLOT 1 CSM 9333 NW1/4 OF NW1/4 SEC 11 & NE1/4 OF NE1/4 SEC 10 T5N R20E Page 79 of... Resolution #097-2020 - Approval of Conservation... Packet Page 97 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 80 of... Resolution #097-2020 - Approval of Conservation... Packet Page 98 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the maps shown in Exhibit B (the Property). The Property is at W182S8200 Racine Avenue, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 354,527 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 70,905 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2221993 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 81 of... Resolution #097-2020 - Approval of Conservation... Packet Page 99 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. H. Other Conservation Easement. This Easement is separate from and does not modify in any way the easement granted by the Landowner to the Easement Holder that became effective January 1, 2019, for two bioretention basins and permeable pavers. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement Page 82 of... Resolution #097-2020 - Approval of Conservation... Packet Page 100 3 or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 83 of... Resolution #097-2020 - Approval of Conservation... Packet Page 101 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 84 of... Resolution #097-2020 - Approval of Conservation... Packet Page 102 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 85 of... Resolution #097-2020 - Approval of Conservation... Packet Page 103 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 86 of... Resolution #097-2020 - Approval of Conservation... Packet Page 104 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 87 of... Resolution #097-2020 - Approval of Conservation... Packet Page 105 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 88 of... Resolution #097-2020 - Approval of Conservation... Packet Page 106 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Maps Showing the Areas of Amended Soil Subject to this Easement Page 89 of... Resolution #097-2020 - Approval of Conservation... Packet Page 107 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: W182S8200 Racine Avenue, Muskego, Wisconsin 53150 Tax Key: MSKC2221993 Legal Description: NW1/4 NE1/4 SEC 16 T5N R20E :: EX ELEC RR & SE1/4 NW1/4 & VOL 1085/18 & EX DOC #0502860 & EX DOC #0574164 & EX DOC #0601318 & EX DOC #0609023 & EX DOC #0609024 & EX DOC #0628874 & EX DOC #0667368 & EX DOC #0729946 & EX MUSKEGO INDUSTRIAL PARK & EX DOC #0826967 & EX HWY :: SUBJECT TO LIMITED TERM CONSERVATION EASEMENT AS RECORDED IN DOC #4383673 ON FEBRUARY 18, 2019 FOR A PERIOD OF TEN YEARS Page 90 of... Resolution #097-2020 - Approval of Conservation... Packet Page 108 11 EXHIBIT B MAPS SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 91 of... Resolution #097-2020 - Approval of Conservation... Packet Page 109 12 Page 92 of... Resolution #097-2020 - Approval of Conservation... Packet Page 110 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at S87W13053 Priegel Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property that are subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 312,189 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 62,438 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2253079 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 93 of... Resolution #097-2020 - Approval of Conservation... Packet Page 111 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 94 of... Resolution #097-2020 - Approval of Conservation... Packet Page 112 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 95 of... Resolution #097-2020 - Approval of Conservation... Packet Page 113 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 96 of... Resolution #097-2020 - Approval of Conservation... Packet Page 114 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 97 of... Resolution #097-2020 - Approval of Conservation... Packet Page 115 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 98 of... Resolution #097-2020 - Approval of Conservation... Packet Page 116 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 99 of... Resolution #097-2020 - Approval of Conservation... Packet Page 117 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 100 of... Resolution #097-2020 - Approval of Conservation... Packet Page 118 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 101 of... Resolution #097-2020 - Approval of Conservation... Packet Page 119 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: S87W13053 Priegel Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2253079 Legal Description: OUTLOT 2 ASTER HILLS ESTATES BEING A REDIVISION OF CERT SURV 6039, PT VACATED DURHAM DR & PT NE1/4 NW1/4 SW1/4 SE1/4 OF NE1/4 SEC 24 T5N R20E :: DOC# 4185517 Page 102 of... Resolution #097-2020 - Approval of Conservation... Packet Page 120 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 103 of... Resolution #097-2020 - Approval of Conservation... Packet Page 121 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at S67W13660 Fleetwood Road, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 85,510 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 17,102 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2163246 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 104 of... Resolution #097-2020 - Approval of Conservation... Packet Page 122 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 105 of... Resolution #097-2020 - Approval of Conservation... Packet Page 123 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 106 of... Resolution #097-2020 - Approval of Conservation... Packet Page 124 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 107 of... Resolution #097-2020 - Approval of Conservation... Packet Page 125 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 108 of... Resolution #097-2020 - Approval of Conservation... Packet Page 126 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 109 of... Resolution #097-2020 - Approval of Conservation... Packet Page 127 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 110 of... Resolution #097-2020 - Approval of Conservation... Packet Page 128 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 111 of... Resolution #097-2020 - Approval of Conservation... Packet Page 129 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 112 of... Resolution #097-2020 - Approval of Conservation... Packet Page 130 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: S67W13660 Fleetwood Road, Muskego, Wisconsin 53150 Tax Key: MSKC2163246 Legal Description: OUTLOT 2 BLK 5 HALE PARK MEADOWS AKA SCHMIDT PARK PT SW1/4 SEC 1 T5N R20E :: R107/168 Page 113 of... Resolution #097-2020 - Approval of Conservation... Packet Page 131 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement area outlined in red) Page 114 of... Resolution #097-2020 - Approval of Conservation... Packet Page 132 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the map shown in Exhibit B (the Property). The Property is at W139S7624 Bluhm Drive and S77W13607 McShane Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 654,929 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 130,986 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2207997008 MSKC2207997 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real Page 115 of... Resolution #097-2020 - Approval of Conservation... Packet Page 133 2 property; assure its availability for agriculture, forestry, recreation or open space uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 116 of... Resolution #097-2020 - Approval of Conservation... Packet Page 134 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 117 of... Resolution #097-2020 - Approval of Conservation... Packet Page 135 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 118 of... Resolution #097-2020 - Approval of Conservation... Packet Page 136 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 119 of... Resolution #097-2020 - Approval of Conservation... Packet Page 137 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 120 of... Resolution #097-2020 - Approval of Conservation... Packet Page 138 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 121 of... Resolution #097-2020 - Approval of Conservation... Packet Page 139 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 122 of... Resolution #097-2020 - Approval of Conservation... Packet Page 140 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Map Showing the Areas of Amended Soil Subject to this Easement Page 123 of... Resolution #097-2020 - Approval of Conservation... Packet Page 141 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: W139S7624 Bluhm Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2207997008 Legal Description: LOT 2 CERT SURV 5709 VOL 46/213 REC AS DOC# 1514789 PT NW1/4 SW1/4 SEC 12 T5N R20E Address: S77W13607 McShane Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2207997 Legal Description: W1/2 SW1/4 SEC 12 T5N R20E :: EX ELEC RR VOL 1051/37 DEEDS & EX VOL 1215/365 & EX R133/840 & EX CERT SURV 3959 VOL 30/323 & EX CERT SURV 5280 VOL 42/555 & EX CERT SURV 5709 VOL 46/213 Page 124 of... Resolution #097-2020 - Approval of Conservation... Packet Page 142 11 EXHIBIT B MAP SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement areas are outlined in red) Page 125 of... Resolution #097-2020 - Approval of Conservation... Packet Page 143 1 Recording Area LIMITED TERM CONSERVATION EASEMENT This LIMITED TERM CONSERVATION EASEMENT FOR GREEN INFRASTRUCTURE is granted on the first day of January 2021 by the City of Muskego (Landowner) to the Milwaukee Metropolitan Sewerage District (Easement Holder). RECITALS A. Property. The Landowner is the sole owner of property located in Waukesha County, Wisconsin, which is described in Exhibit A and depicted on the maps shown in Exhibit B (the Property). The Property is at S65W17844 Martin Drive, Muskego, Wisconsin 53150. This Limited Term Conservation Easement applies only to the area of the Property that has conservation value. This area contains infrastructure designed to capture and hold stormwater in place to reduce the quantity and improve the quality of runoff. Exhibit B shows the location of the property and the areas within the Property subject to this Limited Term Conservation Easement. B. Conservation Values. In its present state, the Property has conservation value because it has 314,633 square feet of amended soil. (the Green Infrastructure). This Green Infrastructure provides a total design detention capacity of 62,927 gallons. Name and Return Address: Milwaukee Metropolitan Sewerage District Attention: Michael Hirsch 260 West Seeboth Street Milwaukee, Wisconsin 53204 Tax Key Number: MSKC2173991003 MSKC2173993 C. Baseline Documentation. The condition of the Property and specifically the Green Infrastructure is documented in an inventory of relevant features, characteristics, and Conservation Values (Baseline Report), which is on file at the office of the Easement Holder and incorporated into this Conservation Easement by reference. This Baseline Report consists of reports, maps, photographs, and other documentation that both parties agree provides an accurate representation of the condition of the Property at the time of the conveyance of this Easement and which is intended to serve as an objective, but not exclusive, baseline for monitoring compliance with the terms of this Easement. D. Public Policies. The preservation of the Conservation Values of the Property will serve the public policy set forth in Section 700.40 of the Wisconsin Statutes, which provides for the creation and conveyance of conservation easements to protect the natural, scenic, and open space values of real property; assure its availability for agriculture, forestry, recreation or open space Page 126 of... Resolution #097-2020 - Approval of Conservation... Packet Page 144 2 uses; protect natural resources; maintain or enhance air and water quality; and preserve archaeological sites. E. Qualified Organization. The Easement Holder is qualified to hold conservation easements under Section 700.40(1)(b) because it is a governmental body empowered to hold an interest in real property under the laws of the State of Wisconsin. F. Conservation Intent. The Landowner and Easement Holder share the common purpose of preserving the Conservation Values for a period of eleven years. The Landowner intends to place restrictions on the use of the Property to protect those Conservation Values. In addition, the Landowner intends to convey to the Easement Holder and the Easement Holder agrees to accept the right to monitor and enforce these restrictions. G. Funding Provided by Easement Holder. The Easement Holder has provided funding to the Landowner for the installation of the Green Infrastructure. The Landowner acknowledges the receipt and sufficiency of this funding. GRANT OF CONSERVATION EASEMENT In consideration of the facts recited above, the mutual covenants contained in this Easement, the funding provided by the Easement Holder, and the provisions of Section 700.40 of the Wisconsin Statutes, the Landowner voluntarily conveys to the Easement Holder a Conservation Easement (the Easement) for a period of eleven years on the Property. This Easement consists of the following terms, rights, and restrictions: 1. Purpose. The purpose of this Easement is to require the Landowner to keep, preserve, and maintain the Green Infrastructure installed on the Property. 2. Effective Dates. This Easement becomes effective January 1, 2021 and terminates on December 31, 2031. 3. Recording of Easement. The Easement Holder will record this Easement at the Easement Holder’s expense. 4. Operation and Maintenance. The Landowner will operate and maintain the Green Infrastructure so that it remains functional for the entire term of this Easement. The Landowner is solely responsible for operation, maintenance, and evaluating performance. 5. Additional Reserved Rights of the Landowner. The Landowner retains all rights associated with ownership of the Property, including the right to use the Property, and invite others to use the Property, in any manner that is not expressly restricted or prohibited by the Easement or inconsistent with the purpose of the Easement. However, the Landowner may not exercise these rights in a manner that would adversely impact the Conservation Values of the Property. Page 127 of... Resolution #097-2020 - Approval of Conservation... Packet Page 145 3 The Landowner expressly reserves the right to sell, give, bequeath, mortgage, lease, or otherwise encumber or convey the Property, subject to the following conditions. 5.1 The encumbrance or conveyance is subject to the terms of this Easement. 5.2 The Landowner incorporates the terms of this Easement by reference in any subsequent deed or other legal instrument by which the Landowner transfers any interest in all or part of the Property. 5.3 The Landowner notifies the Easement Holder of any conveyance in writing within fifteen days after the conveyance and provides the Easement Holder with the name and address of the recipient of the conveyance and a copy of the legal instrument transferring rights. 5.4 Failure of the Landowner to perform any act required in Subparagraphs 5.2 and 5.3 does not impair the validity of this Easement or limit its enforceability in any way. 6. Easement Holders Rights and Remedies. To accomplish the purpose of this Easement, the Landowner expressly conveys to the Easement Holder the following rights and remedies. 6.1 Preserve Conservation Values. The Easement Holder has the right to preserve and protect the Conservation Values of the Property. 6.2 Prevent Inconsistent Uses. The Easement Holder has the right to prevent any activity or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of areas or features of the Property that are damaged by any inconsistent activity or use, pursuant to the remedies set forth below. 6.3 Enter the Property. The Easement Holder has the right to enter the Property to: inspect it and monitor compliance with the terms of this Easement; obtain evidence for use in seeking judicial or other enforcement of the Easement; and otherwise exercise its rights under the Easement. The Easement Holder will: provide prior notice to the Landowner before entering the Property, comply with the Landowner’s safety rules, and avoid unreasonable disruption of the Landowner’s use of the Property. 7. Remedies for Violations. The Easement Holder and the Landowner have the right to enforce the terms of this Easement and prevent or remedy violations through appropriate legal proceedings. 7.1 Notice of Problems. If the Easement Holder identifies problems with the Green Infrastructure, then the Easement Holder will initially attempt to resolve the problems collaboratively. The Easement Holder will notify the Landowner of the problems and request remedial action within a reasonable time. Page 128 of... Resolution #097-2020 - Approval of Conservation... Packet Page 146 4 7.2 Notice of Violation and Corrective Action. If the Easement Holder determines that a violation of the terms of this Easement has occurred or is threatened, the Easement Holder will give written notice of the violation or threatened violation and allow at least thirty (30) days to correct the violation. If the Landowner fails to respond, then the Easement Holder may initiate judicial action. The requirement for an initial notice of violation does not apply if, in the discretion of the Easement Holder, immediate judicial action is necessary to prevent or mitigate significant damage to the Property or if good faith efforts to notify the Landowner are unsuccessful. 7.3 Remedies. When enforcing this Easement, the Remedies available to the Easement Holder include: temporary or permanent injunctive relief for any violation or threatened violation of the Easement, the right to require restoration of the Green Infrastructure to its condition at the time of the conveyance of this Easement, specific performance or declaratory relief, and recovery of damages resulting from a violation of the Easement or injury to any of the Conservation Values of the Property. 7.4 Enforcement Delays. A delay or prior failure of the Easement Holder to discover a violation or initiate enforcement proceedings does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement. 7.5 Waiver of Certain Defenses. The Landowner hereby waives any defense of laches, such as failure by the Easement Holder to enforce any term of the Easement, or estoppel, such as a contradictory statement or action on the part of the Easement Holder. 7.6 Acts Beyond Landowner’s Control. The Easement Holder may not bring any action against the Landowner for any injury or change in the Property resulting from causes beyond Landowner’s control, including, but not limited to, natural disasters such as fire, flood, storm, natural earth movement and natural deterioration, or prudent actions taken by the Landowner under emergency conditions to prevent or mitigate damage from these causes, provided that the Landowner notifies the Easement Holder of any occurrence that has adversely impacted or interfered with the purpose of this Easement. 8. General Provisions. 8.1 Amendment. The Landowner and Easement Holder may amend this Easement in a written instrument executed by both parties and recorded in the Office of the Register of Deeds for the county in which the Property is located, provided that no amendment shall be allowed if, in the judgment of the Easement Holder, it: a. diminishes the Conservation Values of the Property, b. is inconsistent with the purpose of the Easement, Page 129 of... Resolution #097-2020 - Approval of Conservation... Packet Page 147 5 c. affects the duration of the Easement, or d. affects the validity of the Easement under Section 700.40 of the Wisconsin Statutes. 8.2 Assignment. The Easement Holder may convey, assign, or transfer its interests in this Easement to a unit of federal, state, or local government or to an organization that is (a) qualified within the meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or any successor provisions then applicable, and (b) qualified to hold conservation easements under Section 700.40 of the Wisconsin Statutes. As a condition of any assignment or transfer, any future holder of this Easement is required to carry out its purpose for the remainder of its term. The Easement Holder will notify the Landowner of any assignment at least thirty (30) days before the date of such assignment. However, failure to give such notice does not affect the validity of assignment or limit its enforceability in any way. 8.3 Captions. The captions in this Easement have been inserted solely for convenience of reference and are not part of the Easement and have no effect on construction or interpretation. 8.4 Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the interpretation and performance of this Easement. Ambiguities in this Easement shall be construed in a manner that best effectuates the purpose of the Easement and protection of the Conservation Values of the Property. Any legal action regarding the terms and conditions of this Easement shall be brought and maintained in the Circuit Court of Waukesha County, Wisconsin. 8.5 Counterparts. The Landowner and Easement Holder may execute this Easement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 8.6 Entire Agreement. This instrument sets forth the entire agreement of the Landowner and Easement Holder with respect to this Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged into this Easement. 8.7 Extinguishment. This Easement may be terminated or extinguished before the expiration of its term, whether in whole or in part, only through judicial proceedings in a court of competent jurisdiction. Furthermore, the Easement may be extinguished only under the following circumstances: (a) exercise of the power of eminent domain or purchase in lieu of condemnation takes all or part of the Property or (b) the Landowner and Easement Holder agree that a subsequent, unexpected change in the condition of or surrounding the Property makes accomplishing the purpose of the Easement impossible. Page 130 of... Resolution #097-2020 - Approval of Conservation... Packet Page 148 6 8.8 Ownership Responsibilities, Costs and Liabilities. The Landowner retains all responsibilities and will bear all costs and liabilities related to the ownership of the Property, including, but not limited to, the following: a. Operation, upkeep, and maintenance. The Landowner is responsible for the operation, upkeep, and maintenance of the Property. b. Control. In the absence of a judicial decree, nothing in this Easement establishes any right or ability in the Easement Holder to: (i) exercise physical or managerial control over the day-to-day operations of the Property; (ii) become involved in the management decisions of the Landowner regarding the generation, handling, or disposal of hazardous substances; or (iii) otherwise become an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on the owner or operator of real property. c. Permits. The Landowner remains solely responsible for obtaining applicable government permits and approvals for any construction or other activity or use permitted by this Easement and all construction, other activity, or use shall be undertaken in accordance with applicable federal, state and local laws, regulations, and requirements. d. Indemnification. The Landowner releases and will hold harmless, indemnify, and defend the Easement Holder and its members, directors, officers, employees, agents, contractors, and the heirs, personal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (ii) the violation or alleged violation of, or other failure to comply with, any state, federal or local law, regulation, including without limitation, Page 131 of... Resolution #097-2020 - Approval of Conservation... Packet Page 149 7 CERCLA, by any person other than the Indemnified Parties, in any way affecting, involving, or related to the Property; (iii) the presence or release in, on, from, or about the Property, at any time of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. e. Taxes. Before delinquency, the Landowner shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively “Taxes”), including any taxes imposed upon or incurred in response to this Easement, and shall furnish the Easement Holder with satisfactory evidence of payment upon request. 8.9 Recording. The Easement Holder shall record this Easement in the Office of the Register of Deeds for the county in which the Property is located and may re-record it or any other document necessary to protect its rights under this Easement. 8.10 Severability. If any provision or specific application of this Easement is found to be invalid by a court of competent jurisdiction, then the remaining provisions or specific applications of this Easement shall remain valid and binding. 8.11 Successors. This Easement is binding upon and inures to the benefit of the Landowner and Easement Holder and their respective personal representatives, heirs, successors and assigns, and shall continue as a servitude running with the Property for the term of the Easement. 8.12 Terms. The terms "Landowner" and "Easement Holder," wherever used in this Easement, and any pronouns used in their place, mean either masculine or feminine, singular or plural, and include Landowner’s and Easement Holder’s respective personal representatives, heirs, successors, and assigns. 8.13 Warranties and Representations. The Landowner warrants and represents that: a. The Landowner and the Property comply with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use; b. No civil or criminal proceedings or investigations are pending or threatened that would in any way affect, involve, or relate to the Property. No facts or circumstances exist that the Landowner might reasonably expect to form the basis for any proceedings, investigations, notices, claims, demands or orders; and Page 132 of... Resolution #097-2020 - Approval of Conservation... Packet Page 150 8 c. The person signing this Easement has authority to grant this Conservation Easement to the Easement Holder. GRANT OF INTEREST TO EASEMENT HOLDER As Mayor of the City of Muskego, I execute the foregoing Limited Term Conservation Easement and acknowledge the same on this ________ day of _____________________, 2020. By: _______________________________________ Richard Petfalski, Jr. Mayor STATE OF WISCONSIN WAUKESHA COUNTY On this _____ day of _________________, 2020, the person known as Richard Petfalski, Jr. came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Page 133 of... Resolution #097-2020 - Approval of Conservation... Packet Page 151 9 ACCEPTANCE OF EASEMENT HOLDER’S INTEREST The Milwaukee Metropolitan Sewerage District accepts the foregoing Limited Term Conservation Easement on this ________ day of _____________________, 2020. By:________________________________________________ Kevin L. Shafer, P.E. Executive Director STATE OF WISCONSIN MILWAUKEE COUNTY On this _____ day of _________________, 2020, the person known as Kevin L. Shafer came before me and executed the foregoing instrument and acknowledged the same. ___________________________________ Signature of Notary Public Notary Public, State of ____________________ My Commission expires __________________________. Approved as to Form: _________________________________ Attorney for the District Thomas A. Nowicki, Staff Attorney, Milwaukee Metropolitan Sewerage District, drafted this conservation easement. ATTACHMENTS EXHIBIT A Description of the Property EXHIBIT B Maps Showing the Areas of Amended Soil Subject to this Easement Page 134 of... Resolution #097-2020 - Approval of Conservation... Packet Page 152 10 EXHIBIT A DESCRIPTION OF THE PROPERTY Address: S65W17844 Martin Drive, Muskego, Wisconsin 53150 Tax Key: MSKC2173991003 Legal Description: LOT 1 CERT SURV 9654 VOL 89/25 REC AS DOC# 3087532 DIV PARCEL 1 CERT SURV 9132 VOL 82/321 PT SW1/4 NE1/4 SEC 4 T5N R20E :: DOC# 3087534 Address: S63W17601 College Avenue, Wisconsin 53150 Tax Key: MSKC2173993 Legal Description: NW1/4 NE1/4 SEC 4 T5N R20E; COM N1/8 COR; S 2414.28 FT; E 481.80 FT; N 2414.28 FT; W 481.80 FT TO BGN :: EX VOL 251/73 & EX VOL 435/12 & EX VOL 687/164 :: DOC# 2187038 Page 135 of... Resolution #097-2020 - Approval of Conservation... Packet Page 153 11 EXHIBIT B MAPS SHOWING THE AREAS OF AMENDED SOILS SUBJECT TO THIS EASEMENT (Easement areas are outlined in red) Page 136 of... Resolution #097-2020 - Approval of Conservation... Packet Page 154 12 Page 137 of... Resolution #097-2020 - Approval of Conservation... Packet Page 155 COMMON COUNCIL – CITY OF MUSKEGO RESOLUTION #098-2020 DEDICATION OF PUBLIC IMPROVEMENTS FOR MACHI PROPERTIES BV, LLC WHEREAS, Machi Properties BV, LLC, hereafter called “DEVELOPER” has constructed public improvements in and around Harvest Court; including all storm sewers, paving, and shouldering including any and all equipment and appurtenances which may in any way be a part thereof or pertain to, in and for the Harvest Court roadway extension; and WHEREAS, the DEVELOPER has completed the construction and installation of the following improvements: Storm Sewer 42 LF at $285.71/LF of 19”x30” HERCP Storm Sewer with Granular Backfill & FES $ 12,000.00 Total – Storm Sewer $ 12,000.00 Paving 2,780 SY at $20.00/SY of 8-Inch Crushed Limestone Base Course $ 55,600.00 670 SY at $14.02/SY of Crushed Aggregate Shoulder $ 9,400.00 2,780 SY at $19.78/SY of 4-Inch Binder Asphalt Course $ 55,000.00 2,780 SY at $8.37/SY of 2-Inch Surface Asphalt Course $ 23,275.00 Total – Paving $143,275.00 and appurtenances (collectively called “IMPROVEMENTS”) in accordance with the provision of Chapter 392 of the Municipal Code of the City of Muskego, hereafter called the “CITY”, and the City Engineer has certified the systems’ acceptability; and WHEREAS, it is the Developer’s intent to, without charge to the CITY, unconditionally give, grant, convey and fully dedicate the IMPROVEMENTS to the CITY, free and clear of all encumbrances, and together with mains, conduits, pipes, plants, machinery, equipment and appurtenances which relate directly to the utilization of such IMPROVEMENTS; and WHEREAS, the DEVELOPER shall guarantee the public improvements to be dedicated against any defects due to faulty materials or workmanship which appear within a period of one (1) year from the date of dedication and shall pay for any damages resulting therefrom to the CITY property and shall indemnify the CITY against any claims, suits, or liabilities brought against the CITY at any time arising out of the alleged defects or other failure of this guarantee; and WHEREAS, the DEVELOPER must complete the installation of the final lift of asphalt on all roadways and any remaining punchlist items per subdivider’s agreement and said work will be considered dedicated and accepted upon written notification by the City Engineer; and Page 1 of 2 Resolution #098-2020 - Approval of Dedication of Public... Packet Page 156 NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby accept dedication and acceptance of the public improvements in and for Harvest Court roadway extension. DATED THIS 24TH DAY OF NOVEMBER, 2020 SPONORED BY: FINANCE COMMITTEE This is to certify that this is a true and accurate copy of Resolution #098-2020, which was adopted by the Common Council of the City of Muskego. _____________________________ Sharon Mueller, City Clerk-Treasurer Page 2 of 2 Resolution #098-2020 - Approval of Dedication of Public... Packet Page 157 COMMON COUNCIL – CITY OF MUSKEGO RESOLUTION #099-2020 APPROVAL OF REDUCTION OF CASH DEPOSIT FOR MACHI PROPERTIES BV, LLC (HARVEST COURT) WHEREAS, Machi Properties BV, LLC, the developer of Harvest Court, has submitted a request for a reduction to their cash deposit; and WHEREAS, the Public Works and Development Director has recommended that the cash deposit be reduced by $30,624.00, leaving a remaining balance of zero. NOW, THEREFORE, BE IT RESOLVED that the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve that the cash deposit for Machi Properties BV, LLC be reduced by $30,624.00. DATED THIS 24TH DAY OF NOVEMBER 2020. SPONSORED BY: FINANCE COMMITTEE This is to certify that this is a true and accurate copy of Resolution #099-2020, which was adopted by the Common Council of the City of Muskego. Deputy Clerk 11/20jmb Page 1 of 1 Resolution #099-2020 - Approval of Reduction of Cash... Packet Page 158 COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #100-2020 APPROVAL OF AGREEMENT WITH HYDROCORP FOR A CROSS CONNECTION CONTROL PROGRAM WHEREAS, The City supplies potable water throughout its corporate boundary to property owners and is interested in entering into an Agreement with HydroCorp for cross connection control program inspection, reporting and management services to be in compliance with Wisconsin State Statutes regarding cross connections; and WHEREAS, HydroCorp is a professional service that specializes in Cross Connection Control Programs and has been servicing the City in that capacity since 2019; and WHEREAS, The Finance Committee has reviewed the attached Agreement to provide services for another two years and recommended approval to the Common Council. NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve the attached Agreement with HydroCorp for a Cross Connection Control Program. BE IT FURTHER RESOLVED That the Mayor is hereby authorized to sign the Agreement and the City Attorney is authorized to make substantive changes to it as may be necessary in order to preserve the general intent thereof. DATED THIS 24th DAY OF NOVEMBER 2020. SPONSORED BY: FINANCE COMMITTEE This is to certify that this is a true and accurate copy of Resolution #100-2020 which was adopted by the Common Council of the City of Muskego. Clerk-Treasurer 11/20cmc Page 1 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 159 Cross-Connection Control Program Service Agreement Page 1 PROFESSIONAL SERVICE AGREEMENT This agreement, made and entered into this January 1st 2020 by and between the City of Muskego organized and existing under the laws of the State of Wisconsin, referred to as “Utility”, and HydroCorp™ a Michigan Corporation, referred to as “HydroCorp”. WHEREAS, the Utility supplies potable water throughout its corporate boundary to property owners; and desires to enter into a professional services contract for cross connection control program inspection, reporting and management services. WHEREAS, HydroCorp is experienced in and capable of supplying profession al inspection of potable water distribution systems and cross connection control program management to the Utility and the Utility desires to engage HydroCorp to act as its independent contractor in its cross connection control program. WHEREAS, the Utility has the authority under the laws of the State of Wisconsin and its local governing body to enter into this professional services contract. NOW THEREFORE, in consideration of the mutual agreements herein contained, and subject to the terms and conditions herein stated, the parties agree as follows: ARTICLE I. Purpose During the term of this Agreement, the Utility agrees to engage HydroCorp as an independent contractor to inspect and document its findings on its potable water distribution system in public, commercial and industrial facilities within the community. Each party to this Agreement agrees that it will cooperate in good faith with the other, its agents, and subcontractors to facilitate the performance of the mutual obligations set forth in this Agreement. Both Parties to this Agreement recognize and acknowledge that the information presented to them is complete and accurate, yet due to the inaccessible nature of water piping or due to access constraints within water users’ facilities, complete and accurate data is not always available. ARTICLE II. Scope of Services The scope of services to be provided by HydroCorp under this Agreement will include the inspections/surveys, program administration, answering telephone call inquires, scheduling of inspections, program compliance review, public education materials, preparation of quarterly management reports, and annual cross connection reports with respect to the facilities to the extent specifically set forth in this Article II (hereinafter the “Scope of Services”). Should other reports/services be included within the Scope of Services, the same shall be appended to this Agreement as Exhibit 1. 2.1 PROGRAM REVIEW/PROGRAM START UP MEETING. HydroCorp will conduct a Program Startup Meeting for the Cross-Connection Control/Backflow Prevention Program. Items for discussion/review will include the following: • Review state & local regulations • Review and/or provide assistance in establishing local Cross-Connection Control Ordinance • Review/establish wording and timeliness for program notifications including: - Inspection Notice - Compliance Notice - Non-Compliance Notices 1-2, Penalty Notices • Special Program Notices • Electronic use of notices/program information • Obtain updated facility listing, address information and existing program data from Utility • Prioritize Inspections (City buildings, schools, high hazard facilities, special circumstances.) • Review/establish procedure for vacant facilities Page 2 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 160 Cross-Connection Control Program Service Agreement Page 2 • Establish facility inspection schedule • Review/establish procedures and protocol for addressing specific hazards • Review/establish high hazard, complex facilities and large industrial facility inspection/containment procedures including supplemental information/notification that may be requested from these types of facilities in order to achieve program compliance. • Review/establish program reporting procedures including electronic reporting tools • Review/establish educational and public awareness brochures 2.2 INSPECTIONS. HydroCorp will perform initial inspections, compliance inspections, and re-inspections at individual industrial, commercial, institutional facilities and miscellaneous water users within the utility served by the public water supply for cross-connections. Inspections will be conducted in accordance with Wisconsin Department of Natural Resources (DNR) Cross Connection Control Rules. • Initial Inspection – the first time a HydroCorp representative inspects a facility for cross connections. Degree of Hazard will be assigned and/or verified during this facility visit. The Degree of Hazard will dictate future re-inspection frequency/schedule of facility, (facility will be either compliant or non-compliant after this inspection). • Compliance Inspection – subsequent visit by a HydroCorp representative to a facility that was non- compliant during the Initial Inspection to verify that corrective action was completed and meets the program requirements. • Re-Inspection – Revisit by a HydroCorp representative to a facility that was previously inspected. The re-inspection frequency/schedule is based on the degree of hazard assigned to the facility during the initial inspection (two, six or ten year re-inspection cycle). 2.3 INSPECTION SCHEDULE. HydroCorp shall determine and coordinate the inspection schedule. Inspection personnel will check in/out on a daily basis with the Utility’s designated contact person. The initial check in will include a list of inspections scheduled. An exit interview will include a list of inspections completed. 2.4 PROGRAM DATA. HydroCorp will generate and document the required program data for the Facility Types listed in the Scope of Services using the HydroCorp Software Data Management Program. Program Data shall remain property of the Utility; however, the HydroCorp Software Data Management program shall remain the property of HydroCorp and can be purchased for an additional fee. Data services will include: • Prioritize and schedule inspections • Notify users of inspections, backflow device installation and testing requirements if applicable • Monitor inspection compliance using the HydroCorp online software management program. (Note: WI Department of Safety & Professional Services (DSPS) manages backflow prevention assembly testing notification and compliance.) • Maintain program to comply with all DNR regulations 2.5 MANAGEMENT REPORTS. HydroCorp will submit comprehensive management reports in electronic, downloadable format on a quarterly & annual basis to the Utility. Reports to include the following information: • Name, location and date of inspections • Number of facilities inspected/surveyed • Number of facilities compliant/non-compliant 2.6 REVIEW OF CROSS-CONNECTION CONTROL ORDINANCE. HydroCorp will review or assist in the development of a cross-connection control ordinance. Items for review include: • Code adoption references, standard operational procedures, program notice documentation, reporting procedures and preference standards. • Penalties for noncompliance. Page 3 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 161 Cross-Connection Control Program Service Agreement Page 3 2.7 VACUUM BREAKERS. Utility will provide up to six (6) ASSE approved hose bill vacuum breakers or anti- frost hose bibb vacuum breakers per facility as required, in order to place a facility into immediate compliance at the time of inspection if no other cross-connections are identified. 2.8 PUBLIC RELATIONS PROGRAM. HydroCorp will assist the Utility with a community-wide public relations program including general awareness brochures and website cross connection control program content. 2.9 SUPPORT. HydroCorp will provide ongoing support via phone, fax, text, website or email for the contract period. 2.10 FACILITY TYPES. The facility types included in the program are as follows: • Industrial • Institutional • Commercial • Miscellaneous Water users • Multifamily Complex Facilities. Large industrial and high hazard complexes or facilities may require inspection/survey services outside the scope of this Agreement. (HydroCorp typically allows a maximum of up to three (3) hours of inspection time per facility.) An independent cross connection control survey (at the business owner’s expense) may be required at these larger/complex facilities and the results submitted to the Utility to help verify program compliance. 2.11 INSPECTION TERMS. HydroCorp will perform (150) Initial inspections over a two (2) year contract period. The total inspections include all initial inspections, compliance and re-inspections. Vacant facilities that have been provided to HydroCorp, scheduled no show or refusal of onsite inspection will count as an inspection/site visit for purposes of the contract. 2.12 COMPLIANCE WITH DEPARTMENT OF NATURAL RESOURCES ADMINISTRATIVE CODE. HydroCorp will assist in compliance with DNR and Wisconsin Administrative Code cross connection control program requirements for all commercial, industrial, institutional, multifamily and public authority facilities. 2.13 POLICY MANUAL. HydroCorp will review and/or develop a comprehensive cross connection control policy manual/plan and submit to WI-DNR for approval on behalf of the Utility. 2.14 INVENTORY. HydroCorp shall inventory all accessible (ground level) backflow prevention assemblies and devices. Documentation will include: location, size, make, model and serial number if applicable. 2.15 DATA MANAGEMENT. HydroCorp shall provide data management and program notices for all inspection services throughout the contract period. 2.16 ANNUAL YEAR END REVIEW. HydroCorp will conduct an on-site annual year-end review meeting to discuss overall program status and specific program recommendations. 2.17 CROSS CONNECTION CONTROL BROCHURES. HydroCorp will provide approximately 150 cross-connection control educational brochures for the duration of the Agreement. 2.18 INSURANCE. HydroCorp will provide all required copies of general liability, workers compensation and errors and omissions insurance naming the Utility as an additional insured if required. Page 4 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 162 Cross-Connection Control Program Service Agreement Page 4 ARTICLE III. Responsibilities of the Utility 3.1 UTILITY’S REPRESENTATIVE. On or before the date services are to commence under this Agreement, the Utility shall designate an authorized representative (“Authorized Representative”) to administer this Agreement. 3.2 COMPLIANCE WITH LAWS. The Utility, with the technical and professional assistance of HydroCorp, shall comply with all applicable local, state, and federal laws, codes, ordinances, and regulations as they pertain to the water inspection and testing, and shall pay for any capital improvements needed to bring the water treatment and delivery system into compliance with the aforementioned laws. 3.3 NOTICE OF LITIGATION. In the event that the Utility or HydroCorp has or receives notice of or undertakes the prosecution of any actions, claims, suits, administrative proceedings, investigations or other proceedings in connection with this Agreement, the party receiving such notice or undertaking of such prosecution shall give the other party timely notice of such proceedings and will inform the other party in advance o f all hearings regarding such proceedings 3.4 FACILITY LISTING. The Utility must provide HydroCorp a complete list of facilities to be inspected, including facility name, type of service connection, address, contact person, and phone number, (if available). Electronic file format such as Microsoft Excel, etc. is required. An additional one-time fee to manually enter facility listing will be charged at the rate of $80.00 per hour. Incorrect facility addresses will be returned to the Utility contact and corrected address will be requested. 3.5 LETTERHEAD/LOGO. The Utility will provide HydroCorp with an electronic file copy of the utility logo or utility letterhead and all envelopes for the mailing of all official program correspondence only. (300 dpi in either .eps, or other high quality image format for printing.) ARTICLE IV. Term, Compensation and Changes in Scope of Services 4.1 TERM AND TERMINATION TERM. Services by HydroCorp under this Agreement shall commence on January 1st 2021 and end two (2) years from such date, unless this Agreement is renewed or terminated as provided herein. The terms of this Agreement shall be valid only upon the execution of this Agreement within ninety (90) days of its receipt. Failure to execute this Agreement within the ninety (90) day period shall deem the proposed terms void. 4.2 RENEWAL. Upon the expiration of this Agreement the utility will have the option to renew under the same terms of this Agreement for two (2) consecutive one (1) year periods. Base Compensation increases will be equal to CPI at the time of extension or 3%, whichever is less. 4.3 TERMINATION. The Utility or HydroCorp may terminate this Agreement at any time and on any date in the initial and renewal terms of this Agreement, with or without any cause, by giving written notice of such intent to terminate to the other party at least thirty (30) days prior to the effective date of termination. Notice of the intent to terminate shall be given in writing by personal service, by an authorized agent, or by certified mail, return receipt requested. The Utility shall pay the balance of any outstanding accounts for work performed by HydroCorp. 4.4 BASE COMPENSATION. From the Beginning thirty (30) days after execution of this Agreement, the Utility shall pay HydroCorp as compensation (“Base Compensation”) for labor, equipment, material, supplies, and utilities provided and the services performed pursuant to this Agreement, the sum of $829.00 per month, $9,948.00 annually for a two (2) year contract period totaling $19,896.00. 4.5 PAYMENT OF INVOICES. Upon presentation of invoices by HydroCorp, all payments including base and other compensation shall be due and payable on the first day of each month (due date) after the month for which services have been rendered. All such payments shall be made no later than thirty (30) days after the due dat e. Failure to pay shall be deemed a default under this Agreement. For any payment to HydroCorp which is not Page 5 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 163 Cross-Connection Control Program Service Agreement Page 5 made within thirty (30) calendar days after the due date, HydroCorp, shall receive interest at one and one-half (1½) percent per month on the unpaid balance. 4.6 CHANGES IN SCOPE OF SERVICES. In the event that the Utility requests and HydroCorp consents to perform additional work or services involving the consulting, management, operation, maintenance, and repair of the Utility’s water delivery system where such services or work exceeds or changes the Scope of Services contemplated under this Agreement, HydroCorp shall be provided additional compensation. Within thirty (30) calendar days from the date of notice of such additional work or services, the parties shall mutually agree upon an equitable sum for additional compensation. This amount shall be added to the m onthly sum effective at the time of change in scope. Changes in the Scope of Service include, but are not limited to, requests for additional service by the Utility or additional costs incurred in meeting new or changed government regulations or reporting requirements. 4.7 CLIENT CONFIDENTIALITY. Disclosure of all communications between HydroCorp and the Utility regarding business practices and other methods and forms of doing business is subject to the provisions of Wisconsin Public Records Law, Chapter 19, Wis. Stats. HydroCorp agrees to make available for inspection and copying all records (as defined in sec. 19.32 (2), Wis. Stats.) in its possession created, produced, collected or otherwise related to this Agreement to the same extent as if the record s were maintained by the Utility. HydroCorp expressly acknowledges and agrees that its obligations concerning Public Records Law and compliance under this Agreement should not be limited by copyright, license, privacy and/or confidentiality except as authorize d under the Public Records Law. 4.8 ACCESSIBILITY. Backflow prevention device information will be completed in full only when the identifying information (i.e. data plate, brass tag, etc.) is accessible and visible from ground level or from a fixed platform/mezzanine. 4.9 CONFINED SPACES. – HydroCorp personnel will not enter confined spaces. ARTICLE V. Risk Management and General Provisions 5.1 INFORMATION. Both Parties to this Agreement recognize and acknowledge that the information presented to them is complete to the best of their knowledge, yet due to the inaccessible nature of water piping or lack of access provided by property owner/water user, complete accurate data is not always available. Cross-connection control inspection and results are documented as of a specific date. The property owner and/or water user may make modifications to the potable water system after the inspection date that may impact compliance with the program. 5.2 LIMITATION OF LIABILITY. HydroCorp’s liability to the Utility for any loss, damage, claim, or expense of any kind or nature caused directly or indirectly by the performance or non -performance of obligations pursuant to this Agreement shall be limited to general money damages in an amount not to exceed or within the limits of the insurance coverage provided hereunder. HydroCorp shall in no event be liable for indirect or consequential damages, including but not limited to, loss of profits, loss of revenue, or loss of facilities, based upon contract, negligence, or any other cause of action. 5.3 HYDROCORP INSURANCE. HydroCorp currently maintains the following insurance coverage’s and limits: Occurrence Aggregate Comprehensive General Liability $1 Million $2 Million Excess Umbrella Liability $5 Million $5 Million Automobile Liability (Combined Single Limit) $1 Million Worker’s Compensation/ Employer’s Liability $1 Million Errors and Omissions $2 Million $2 Million Within thirty (30) calendar days of the start of the project, HydroCorp shall furnish the Utility with satisfactory proof of such insurance, and each policy will require a 30-day notice of cancellation to be given Page 6 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 164 Cross-Connection Control Program Service Agreement Page 6 to the Utility while this Agreement is in effect. The Utility shall be named as an additional insured according to its interest under the general liability policy during the term of this Agreement. 5.4 UTILITY INSURANCE. The Utility will maintain liability insurance on an all risk basis and including extended coverage for matters set forth in this Agreement. 5.5 RELATIONSHIP. The relationship of HydroCorp to the Utility is that of independent contractor and not one of employment. None of the employees or agents of HydroCorp shall be considered employees of the Utility. For the purposes of all state, local, and federal laws and regulations, the Utility shall exercise primary management, and operational and financial decision-making authority. 5.6 ENTIRE AGREEMENT AMENDMENTS. This Agreement contains the entire Agreement between the Utility and HydroCorp, and supersedes all prior or contemporaneous communications, representations, understandings, or agreements. This Agreement may be modified only by a written amendment signed by both parties. 5.7 HEADINGS, ATTACHMENTS, AND EXHIBITS. The heading contained in this Agreement is for reference only and shall not in any way affect the meaning or interpretation of this Agreement. The Attachments and Exhibits to this Agreement shall be construed as integral parts of this Agreement. 5.8 WAIVER. The failure on the part of either party to enforce its rights as to any provision of this Agreement shall not be construed as a waiver of its rights to enforce such provisions in the future. 5.9 ASSIGNMENT. This Agreement shall not be assigned by either party without the prior written consent of the other unless such assignment shall be to the affiliate or successor of either party. 5.10 FORCE MAJEURE. A party’s performance under this Agreement shall be excused if, and to the extent that, the party is unable to perform because of actions due to caus es beyond its reasonable control such as, but not limited to, Acts of God, the acts of civil or military authority, loss of potable water sources, water system contamination, floods, quarantine restrictions, riot, strikes, commercial impossibility, fires , explosions, bombing, and all such interruptions of business, casualties, events, or circumstances reasonably beyond the control of the party obligated to perform, whether such other causes are related or unrelated, similar or dissimilar, to any of the foregoing. In the event of any such force majeure, the party unable to perform shall promptly notify the other party of the existence of such force majeure and shall be required to resume performance of its obligations under this Agreement upon the terminatio n of the aforementioned force majeure. 5.11 AUTHORITY TO CONTRACT. Each party warrants and represents that it has authority to enter into this Agreement and to perform the obligations, including any payment obligations, under this Agreement. 5.12 GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, regardless of the fact that any of the parties hereto may be or may become a resident of a different state or jurisdiction. Any suit or action arising shall be filed in a court of competent jurisdiction within the State of Wisconsin, venue by the presiding County . The parties hereby consent to the personal jurisdiction of said court within the State of Wisconsin . 5.13 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 5.14 NOTICES. All notices, requests, demands, payments and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or sent by nationally recognized overnight carrier, or mailed by certified mail, po stage prepaid, return receipt requested, as follows: Page 7 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 165 Cross-Connection Control Program Service Agreement Page 7 If to HydroCorp: HydroCorp c/o Craig Wolf 5700 Crooks Road, Ste. 100 Troy, MI 48337 (612) 850-8939 If to Utility: City of Muskego PO Box 749 Muskego, WI, 53150 5.15 SEVERABILITY. Should any part of this Agreement for any reason, be declared invalid or void, such declaration will not affect the remaining portion, which will remain in full force and effect as if the Agreement has been executed with the invalid portion eliminated. SIGNATURES IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as of the date first above written. City of Muskego ____________________________ By: Title: HydroCorp ___________________________________ By: Craig Wolf Page 8 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 166 Cross-Connection Control Program Service Agreement Page 8 Appendix Specific Qualifications & Experience HydroCorp™ is a professional service organization that specializes in Cross Connection Control Programs. Cross Connection Control Program Management & Training is the main core and focus of our business. We are committed to providing water utilities and local communities with a cost effective and professionally managed cross connection control program in order to assist in protecting the public water supply. • HydroCorp conducts over 30,000 Cross Connection Control Inspections annually. • HydroCorp tracks and manages over 35,000+ backflow prevention assemblies for our Municipal client base. • Our highly trained staff works in an efficient manner in order to achieve maximum productivity and keep program costs affordable. We have a detailed system and process that each of our field inspectors follow in order to meet productivity and quality assurance goals. • Our municipal inspection team is committed to providing outstanding customer service to the water users in each of the communities we serve. We teach and train customer service skills in addition to the technical skills since our team members act as representatives of the community that we service. • Our municipal inspection team has attended training classes and received certification from the following recognized Cross Connection Control Programs: UF TREEO, UW-Madison, and USC – Foundation for Cross Connection Control and Hydraulic Research, American Backflow Prevention Association (ABPA), American Society for Sanitary Engineering (ASSE). HydroCorp recognizes the importance of Professional Development and Learning. We invest heavily in internal and external training with our team members to ensure that each Field Service and Administrative team member has the skills and abilities to meet the needs of our clients. • We have a trained administrative staff to handle client needs, water user questions and answer telephone calls in a professional, timely and courtesy manner. Our administrative staff can answer most technical calls related to the cross connection control program and have attended basic cross connection control training classes. • HydroCorp currently serves over 200 communities in Michigan, Wisconsin, Maryland, Delaware, Virginia & Florida. We still have our first customer! • HydroCorp and its’ staff are active members in many water industry associations including: National Rural Water Association, State Rural Water Associations, National AWWA, State AWWA Groups, HydroCorp is committed to assisting these organizations by providing training classes , seminars and assistance in the area of Cross Connection Control. • Several Fortune 500 companies have relied on HydroCorp to provide Cross Connection Control Surveys, Program Management & Reporting to assist in meeting state/local regulations as well as internal company guidelines. Page 9 of 9 Resolution #100-2020 - Approval of Professional Service... Packet Page 167 Approved CITY OF MUSKEGO FINANCE COMMITTEE MINUTES October 27, 2020 5:45 PM City Hall, W182 S8200 Racine Avenue CALL TO ORDER Mayor Petfalski called the meeting to order at 5:45 p.m. PLEDGE OF ALLEGIANCE Those present recited the Pledge of Allegiance. ROLL CALL Present: Committee Members Alderpersons Wolfe, Kubacki, and Madden. Also present: Alderpersons Terrence, Kapusta, Hammel, and Engelhardt, Finance and Administration Director Mueller, Finance and Administration Assistant Director Mustapich, Public Works & Development Director Kroeger, Lead Planner Trzebiatowski, City Attorney Warchol, and Administrative Assistant Crisp. PUBLIC MEETING NOTICE Ms. Crisp stated that the meeting was noticed in accordance with the open meeting law. APPROVAL OF MINUTES – October 13, 2020 Alderperson Wolfe moved to approve. Alderperson Madden seconded; motion carried. LICENSE APPROVAL Recommend Approval of Operator Licenses Alderperson Kubacki moved to recommend approval of an Operator License for Kim Coubal, Samantha Goelzer, Megan Markowski, Alexis Peterson, Jacob Schuyler, and Shawn Whalen. Alderperson Madden seconded; motion carried. NEW BUSINESS Recommend Release of Surety Bond for Muskego School Apartments LLC Alderperson Madden moved to recommend approval. Alderperson Kubacki seconded; motion carried. Page 1 of 2 Finance Committee - October 27, 2020 Packet Page 168 Finance Committee Minutes 2 October 13, 2020 Recommend Acceptance and Dedication of Public Utilities for Muskego School Apartments LLC Alderperson Kubacki moved to recommend approval. Alderperson Madden seconded; motion carried. Recommend Award of Bid - Well #11 Alderperson Kubacki moved to recommend that the bid be awarded to Midwest Well Services, dba Municipal Well & Pump. Alderperson Wolfe seconded; motion carried. VOUCHER APPROVAL Utility Vouchers Alderperson Wolfe made a motion to approve Utility Vouchers in the amount of $403,151.78. Alderperson Madden seconded; motion carried. General Fund Vouchers Alderperson Wolfe made a motion to approve General Fund Vouchers in the amount of $515,699.61. Alderperson Kubacki seconded; motion carried. Wire Transfers for Payroll/Invoice Transmittals Alderperson Wolfe made a motion to approve Wire Transfers for Payroll/Invoice Transmittals in the amount of $363,716.61. Alderperson Madden seconded; motion carried. FINANCE DIRECTOR’S REPORT Finance and Administrative Director Mueller stated that the department has been very busy since In-Person Absentee Voting started on Tuesday, October 20. There have been approximately 800 votes per day. We are on track to hit 70% of registered voters. COMMUNICATONS AND OTHER BUSINESS AS AUTHORIZED BY LAW None ADJOURNMENT Alderperson Wolfe made a motion to adjourn at 5:51 p.m. Alderperson Madden seconded; motion carried. Minutes taken and transcribed by Christine Crisp. Page 2 of 2 Finance Committee - October 27, 2020 Packet Page 169 APPROVED CITY OF MUSKEGO PLAN COMMISSION MINUTES 10/06/2020 6:00 PM Muskego City Hall, W182 S8200 Racine Avenue CALL TO ORDER Mayor Petfalski called the meeting to order at 6:00 PM. PLEDGE OF ALLEGIANCE Those present recited the Pledge of Allegiance. ROLL CALL Present: Mayor Petfalski, Alderman Kubacki Commissioners Bartlett, Buckmaster, Jacques, Graf, Planner Trzebiatowski. Absent: Commissioner Oliver STATEMENT OF PUBLIC NOTICE The meeting was noticed in accordance with the open meeting laws. APPROVAL OF THE MINUTES Approval of the Minutes of the September 1, 2020 meeting. Alderman Kubacki made a motion to approve the September 1, 2020 minutes. Commissioner Jacques seconded. Motion to approve passed unanimously. PUBLIC HEARING Public Hearing for the Wisconsin Youth Sports Association (WYSA – dba Milwaukee Angels/Midwest Halos) requesting a Conditional Use Grant for the purpose of allowing an indoor baseball/softball training facility under the allowance of “indoor health and fitness facilities” in the BP-3 zoning district located at W160 S6369 Commerce Drive / Tax Key No. 2169.993.013. Planner Trzebiatowski provided a brief overview of the proposed athletic facility and the Conditional Use Grant for Wisconsin Youth Sports Association (WYSA – dba Milwaukee Angels/Midwest Halos). The baseball facility would be in the northern half of the building and all proposed activities would be inside the building. Dr. Peter Parthum, S63 W14899 Garden Terrace, Muskego. Concerns are related to traffic onto College Avenue. Based on the sketch and existing traffic patterns there is a lot of traffic on College Avenue. Currently there are a dozen cars parked on College already for the coffee shop. Would like to see access limited to within the industrial park. Page 1 of 5 Plan Commission - October 6, 2020 Packet Page 170 Plan Commission Minutes 2 10/6/2020 6:00:00 PM NEW BUSINESS FOR CONSIDERATION RESOLUTION PC 059-2020 Approval of a Conditional Use Grant and Building, Site and Operation Plan for Nicole Lutz of the Wisconsin Youth Sports Association (WYSA) located at W160 S6369 Commerce Drive / Tax Key No. 2169.993.013. Alderman Kubacki asked about the access to the property. Planner Trzebiatowski mentioned that there is no access proposed to College and the only access is from the industrial park. Alderman Kubacki asked if the truck bays are currently used. Planner Trzebiatowski said they were probably used at some time, but is not sure how long they have been vacant. Planner Trzebiatowski also read an email from Alderman Terrence in support of the proposal. The project and club have a great reputation and will be a great addition to the City. Foot traffic will be spread out enough to not create traffic or parking issues and will be good for the surrounding businesses. Planner Trzebiatowski mentioned parking is really the only issue as the table in the ordinance would require a very large number of parking stalls required based on square footage. However, knowing that this is a baseball infield for practice and batting cages the square footage measurement is not practical. The applicant provided a table with projected parking stalls needed including staff, players, coaches, etc. Staff is recommending a one- year re-review to look at the parking and if parking ever becomes an issue there is a remedy of striping parking stalls in the back of the building. Commissioner Graf feels the one-year review is reasonable. Commissioner Jacques made a motion to approve Resolution PC 059-2020. Alderman Kubacki seconded. Motion to approve passed unanimously. RESOLUTION PC 060-2020 Approval of a Building, Site and Operation Plan Amendment and Recommendation to Common Council for a Zoning Amendment within the PD Zoning District for Presbyterian Homes Wisconsin/Senior Housing Partners located at W147 S6800 Durham Place / Tax key No. 2168.961. Planner Trzebiatowski mentioned that the senior living facility located at the property formerly used by Tess Corners Elementary School is requesting three feet of additional height to allow for a more open floor plan and minor exterior changes. There was a public hearing with two comments that both were related to traffic, which would not be affected by the request for three feet of additional height. This is a recommendation to Council for the Planned Development District amendment in addition to Plan Commission approval of a BSO amendment for the height/architecture changes. Alderman Kubacki is in favor of project as they are making an attractive building even more attractive by adding windows and also the height issue is not bothersome and will have a minimal impact. Planner Trzebiatowski clarified the requested height changing from 27 feet to 30 feet on the Janesville Road side and 37 feet to 40 feet on the Durham side of the building. Commissioner Buckmaster agrees with Alderman Kubacki that the height is not a big issue. Page 2 of 5 Plan Commission - October 6, 2020 Packet Page 171 Plan Commission Minutes 3 10/6/2020 6:00:00 PM Mayor Petfalski agrees that the height difference will make the units more marketable and we want developers to be successful when developing in the City and this will be an enhancement to the area. Commissioner Jacques made a motion to approve Resolution PC 060-2020. Commissioner Buckmaster seconded. Motion to approve passed unanimously. RESOLUTION PC 061-2020 Approval of an Accessory Structure for Eric & Sarah Haftarski located at S98 W20680 Parker Drive / Tax Key No. 2277.996.012. Planner Trzebiatowski explained that this structure is metal that does not match the house and a color scheme that does not match the house. They are looking for the traditional rural farmhouse with a white house and red barn. There are some architectural features on the building. Alderman Kubacki made a motion to approve Resolution PC 061-2020. Commissioner Jacques seconded. Motion to approve passed unanimously. RESOLUTION PC 062-2020 Approval of a Two-Lot Certified Survey Map and a Building, Site and Operation Plan for Dunkin located at W189 S7749-97 Racine Avenue / Tax Key No. 2192.970. Planner Trzebiatowski provided an overview of the project being a land division separating a lot from the shopping center. The lot will share access for the remainder of the site. The development will be a shared Dunkin’ and Baskin Robbins store facing toward the east, or Racine Avenue with a drive thru. The building will have a flat roof with parapet walls with a blend of materials including fiber cement panels and siding, a brick veneer and metal trim. The front elevation does not include any masonry while the other sides range from 44 to 59 percent. The front elevation without masonry is an aesthetic feature that Dunkin’ is using as a branding tool and with a variety of materials and colors, so they are hesitant to add another material. There are two areas that staff is seeking revisions. The first being the brick under the drive thru windows wrapping around the front of the building tying the sides together. The other area staff is seeking revisions is in the rear where there is a walk-in cooler that has a screening wall to break up the façade. Staff is recommending a full accent wall or cladding to cover the metal of the walk-in cooler. The back sides of the parapet walls must match the colors, design and materials on all four sides. Commissioner Bartlett questioned the screening of all mechanical units as one appears to not be screened. Planner Trzebiatowski mentioned that the applicant has been made aware of screening requirements. Commissioner Bartlett highly supports the screening of the refrigeration unit in the back. No issues with the materials or colors. Alderman Kubacki asked if the brick banding was expanded to the front what would it add to the percentage. Planner Trzebiatowski did not have the exact percentage but explained that it is not a huge percentage and that architecture is important as well as the percentage. Mayor Petfalski mentioned the masonry under the drive thru windows and it is good to have like materials as materials age differently. Commissioner Bartlett asked if the layouts presented reflect the additional masonry. Planner Trzebiatowski explained that this is the original proposal and does not include the additional masonry as recommended by staff. Page 3 of 5 Plan Commission - October 6, 2020 Packet Page 172 Plan Commission Minutes 4 10/6/2020 6:00:00 PM The applicant Nikoletta Scarlatis, representing Dunkin’ said that if they wrapped the brick around the front it would be 9.7 percent masonry. Alderman Kubacki asked if there was any objection by the applicant to wrapping the masonry. The applicant said it is not the brand standard, but would be fine as a condition of approval. Wrapping the rear of the building will be a bigger concern. Alderman Kubacki asked if they understood the concern regarding screening the refrigeration unit. The applicant understood, and thinks this will be a monetary concern for client. Alderman Engelhardt is in favor of commercial development. He does not think they should be restricted on their colors. He is concerned that all sides need to be very presentable and asked if the store is eat-in or drive thru. Planner Trzebiatowski explained that there is limited seating inside and a small outdoor patio. Alderman Engelhardt is just concerned with the viability of past food services coming and going in that area. Alderman Kubacki asked if there are other alternatives to the masonry screening of cooler. Planner Trzebiatowski explained staff has discussed alternatives of cladding the cooler with some material, landscaping, or building something else. The applicant said cladding is difficult. Landscaping may be difficult with the spacing. Commissioner Bartlett asked about the signage and accent wall on the south side of the building and using the same idea on the rear so landscaped screening is needed on either end. Planner Trzebiatowski explained that the distance between the cooler and curb will likely prevent landscaping from being planted in this location. Commissioner Bartlett would be fine with the unit being painted to match the building if the screening wall could cover the entire back of the refrigeration unit. Planner Trzebiatowski asked if the refrigeration unit was enclosed, if the accent wall feature would remain. The applicant said the accent feature would remain and presented a drawing showing the refrigeration unit completed enclosed, but then said that they would likely need to shift the building east to accommodate this shift. Commissioner Bartlett asked about the outdoor seating on the north side by the drive thru stacking and if there was any thought of moving the outdoor seating to the northeast corner, which may draw more interest. The applicant mentioned shrinking the drive area to the 24- foot minimum to possibly expand the outdoor seating and the Plan Commission was in favor if the owner of the development was OK with the easement encroachment. Commissioner Jacques made a motion to approve Resolution PC 062-2020. Commissioner Buckmaster seconded. Motion to approve passed unanimously. RESOLUTION PC 063-2020 Approval of a Building, Site and Operation Plan Amendment for Cornerstone Development for the property located along Loomis Road west of Champions Drive / Tax Key Nos. 2258.074, 2258.996.001, 2259.970, 2261.978.003, and 2264.999. Planner Trzebiatowski explained the proposal of expanding the double-duplexes to add a third garage stall option to four buildings on the site. The garages face one another and expanding the garages would not change this. Alderman Kubacki made a motion to approve Resolution PC 063-2020. Commissioner Jacques seconded. Motion to approve passed unanimously. Page 4 of 5 Plan Commission - October 6, 2020 Packet Page 173 Plan Commission Minutes 5 10/6/2020 6:00:00 PM MISCELLANEOUS BUSINESS Discussion of the allowing the continued temporary outdoor seating through the COVID-19 season. Planner Trzebiatowski provided an overview of the process for allowing temporary outdoor seating being a no fee zoning permit and originally discussed through the end of the year. A few people utilized the temporary outdoor seating process. Now we were approached for tents or domes for outdoor seating. Planner Trzebiatowski and Mayor Petfalski discussed this and thought we should continue the same policy as the temporary outdoor seating and as long as this does not hinder the neighborhood or surrounding property, access or safety. The only issue that is being investigated would be heating the tents or domes. Planner Trzebiatowski is expecting information from the building inspectors. Mayor Petfalski wanted first to see if everyone was OK with continuing the same policy and trying to be flexible for businesses right now. Nobody raised any issues. Secondly, Mayor Petfalski asked if Commissioner Bartlett had any experience with heating tents or temporary structures, which he did not. ADJOURNMENT Commissioner Jacques made a motion to adjourn. Commissioner Buckmaster seconded. Motion to approve passed unanimously. Meeting adjourned at 6:47 PM Respectfully Submitted, Aaron Fahl, AICP Associate Planner Page 5 of 5 Plan Commission - October 6, 2020 Packet Page 174 Council Date NOVEMBER 24, 2020 Total Vouchers All Funds $322,529.38 Total Voucher Approval Utility Vouchers (Approve Separately) Water Vouchers $19,306.44 Water Wire Transfers Total Water $19,306.44 Sewer Vouchers 9,754.01 Sewer Wire Transfers Total Sewer $9,754.01 Net Total Utility Vouchers $ 29,060.45 #1 - Utility Voucher Approval Tax Vouchers - Refunds & Tax Settlements (Approve Separately) Tax Vouchers $20,134.63 Tax Void Checks ()** Total Tax Vouchers $ 20,134.63 #2 - Tax Voucher Approval Total General Fund Vouchers (Approve Separately) General Fund Vouchers $273,334.30 General Fund Prior Council Correction ()** Total General Fund Vouchers $ 273,334.30 #3 - General Voucher Approval Big Muskego Lake Vouchers $ Development Fund Vouchers $ Wire transfers (Approve Separately): Debt Service 10/22 Council $3,327.91 Debt Service $404,425.00 Payroll/Invoice Transmittals $364,930.59 #4 - Wire Transfers Approval Void Checks Since Last Report Check #Amount Check #Amount Total *** Total 0.00 *Total *** Page 1 of 12 Voucher Report Packet Page 175 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 1 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Report Criteria: Detail report. Invoices with totals above $0 included. Paid and unpaid invoices included. [Report].Description = {<>} "1099 adjustment" Invoice Detail.Type = {>} "adjustments" Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number ABC SUPPLY INC - MBA#743 98436610 1 Invoice BITUMAR TYPE #3 10/23/2020 11/24/2020 1,999.20 1120 100.04.51.02.5740 Total ABC SUPPLY INC - MBA#743:1,999.20 ABRAHAM'S ON-SITE SHREDDING SERVICE 0003072 2 Invoice SHREDDING - CITY HALL 10/27/2020 11/24/2020 54.00 1120 100.01.06.00.5701 0003072 1 Invoice SHREDDING - PD 10/27/2020 11/24/2020 45.00 1120 100.02.20.01.5723 Total ABRAHAM'S ON-SITE SHREDDING SERVICE:99.00 ADVANCED CHEMICAL SYSTEMS 168527 1 Invoice BOILER SERVICE - CITY HALL 47% 11/01/2020 11/24/2020 129.25 1120 100.01.09.00.5415 168527 2 Invoice BOILER SERVICE - POLICE 53% 11/01/2020 11/24/2020 145.75 1120 100.02.20.01.5415 Total ADVANCED CHEMICAL SYSTEMS:275.00 ADVANTAGE POLICE SUPPLY INC 20-1127 1 Invoice WESTPHAL VEST 11/10/2020 11/24/2020 800.00 1120 100.02.20.01.5227 20-1127 2 Invoice VEST EXCESS 11/10/2020 11/24/2020 25.00 1120 100.02.20.01.5151 Total ADVANTAGE POLICE SUPPLY INC:825.00 ALLIANCE ELECTRICAL CONTRACTORS INC AL112420-ENG 1 Invoice P20-201318 OVERPAYMENT 11/11/2020 11/24/2020 120.18 1120 100.02.25.00.4250 Total ALLIANCE ELECTRICAL CONTRACTORS INC:120.18 ALSCO 042510/112420 1 Invoice MONTHLY CHARGES - OCTOBER 10/31/2020 11/24/2020 1,228.77 1120 100.04.51.07.5704 042511/112420 1 Invoice MONTHLY CHARGES - OCTOBER 10/31/2020 11/24/2020 406.69 1120 100.04.51.07.5704 042512/112420 2 Invoice OCTOBER CHARGES 10/31/2020 11/24/2020 236.19 1120 605.56.09.21.5835 042512/112420 1 Invoice OCTOBER CHARGES 10/31/2020 11/24/2020 236.20 1120 601.61.61.12.5702 Total ALSCO:2,107.85 AMAZON CAPITAL SERVICES 1NV6-RYLJ-D6 1 Invoice RANGE SUPPLIES 11/04/2020 11/24/2020 94.56 1120 100.02.20.01.6023 Total AMAZON CAPITAL SERVICES:94.56 ANDY KRAATZ OVERHEAD DOORS, LLC 2214 1 Invoice WEST OVERHEAD DOOR REPAIR 11/02/2020 11/24/2020 300.00 1120 100.04.51.11.5415 Total ANDY KRAATZ OVERHEAD DOORS, LLC:300.00 AT & T 2626794106/11 1 Invoice MONTHY PRI CHARGE 11/01/2020 11/24/2020 1,049.30 1120 100.01.06.00.5601 Total AT & T:1,049.30 Page 2 of 12 Voucher Report Packet Page 176 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 2 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number ATLAS BUSINESS SOLUTIONS, INC. INV312169 1 Invoice SCHEDULE ANYWHERE SOFTWA 11/11/2020 11/24/2020 998.40 1120 100.02.20.01.5504 Total ATLAS BUSINESS SOLUTIONS, INC.:998.40 BAKER & TAYLOR COMPANY 2035597087 1 Invoice PRINT 11/03/2020 11/24/2020 1,261.83 1120 100.05.71.01.5711 2035597515 1 Invoice PRINT 11/04/2020 11/24/2020 1,255.92 1120 100.05.71.01.5711 2035604208 1 Invoice PRINT 11/05/2020 11/24/2020 338.61 1120 100.05.71.01.5711 2035609401 1 Invoice PRINT 11/09/2020 11/24/2020 449.60 1120 100.05.71.01.5711 2035610329 1 Invoice PRINT 11/09/2020 11/24/2020 3,537.12 1120 100.05.71.01.5711 2035616028 1 Invoice PRINT 11/11/2020 11/24/2020 690.47 1120 100.05.71.01.5711 5016542243 1 Invoice PRINT 11/05/2020 11/24/2020 33.93 1120 100.05.71.01.5711 Total BAKER & TAYLOR COMPANY:7,567.48 BAKER & TAYLOR ENTERTAINMENT H1701120 1 Invoice AV 10/29/2020 11/24/2020 35.98 1120 100.05.71.02.5711 H1701130 1 Invoice AV 10/29/2020 11/24/2020 48.17 1120 100.05.71.02.5711 H1704070 1 Invoice AV 10/29/2020 11/24/2020 10.18 1120 100.05.71.02.5711 H51701670 1 Invoice AV 10/29/2020 11/24/2020 17.99 1120 100.05.71.02.5711 H51711370 1 Invoice AV 10/30/2020 11/24/2020 11.03 1120 100.05.71.02.5711 H51711372 1 Invoice AV 10/30/2020 11/24/2020 13.67 1120 100.05.71.02.5711 H51717910 1 Invoice AV 10/30/2020 11/24/2020 21.56 1120 100.05.71.02.5711 H51772300 1 Invoice AV 11/03/2020 11/24/2020 14.36 1120 100.05.71.02.5711 H51780120 1 Invoice AV 11/03/2020 11/24/2020 21.59 1120 100.05.71.02.5711 H51780560 1 Invoice AV 11/03/2020 11/24/2020 28.79 1120 100.05.71.02.5711 H51781690 1 Invoice AV 11/03/2020 11/24/2020 17.99 1120 100.05.71.02.5711 Total BAKER & TAYLOR ENTERTAINMENT:241.31 BARTLEY SALES COMPANY, INC. 110620 1 Invoice AUTOMATIC PAPER TOWEL DISPE 11/06/2020 11/24/2020 1,735.00 1120 100.01.09.00.5703 Total BARTLEY SALES COMPANY, INC.:1,735.00 BAYCOM INC PB1852 1 Invoice CAP. 2020-3 PARK CAMERAS- BAY 11/05/2020 11/24/2020 36,663.79 1120 410.08.90.14.6523 Total BAYCOM INC:36,663.79 BIG MUSKEGO LAKE DISTRICT BI112420-BML 1 Invoice 2019 TAX SETTLEMENT 11/18/2020 11/24/2020 3,294.17 1120 501.00.00.00.2450 Total BIG MUSKEGO LAKE DISTRICT:3,294.17 BOBCAT PLUS, INC. IB09888 1 Invoice SKID STEER 10/09/2020 11/24/2020 451.73 1120 605.56.09.33.5735 IB10131 1 Invoice TOOL CAT 10/28/2020 11/24/2020 23.98 1120 100.04.51.11.5405 IB10179 1 Invoice SKID STEER 11/02/2020 11/24/2020 202.88 1120 100.04.51.11.5405 Total BOBCAT PLUS, INC.:678.59 BROCK WHITE COMPANY LLC 14331422-00 1 Invoice JOINT FILLER 10/29/2020 11/24/2020 43.96 1120 100.04.51.04.5744 Total BROCK WHITE COMPANY LLC:43.96 Page 3 of 12 Voucher Report Packet Page 177 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 3 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number BRODART CO. 566964 1 Invoice BOOK JACKET COVERS 10/27/2020 11/24/2020 754.60 1120 100.05.71.00.5702 Total BRODART CO.:754.60 CARDMEMBER SERVICE (ELAN) 0083/112420 1 Invoice SPRAYER PARTS 10/28/2020 11/24/2020 36.48 1120 215.06.00.00.5704 0286/112420 1 Invoice LEXIS NEXIS 10/28/2020 11/24/2020 298.00 1120 100.01.05.00.5506 1472/112420 1 Invoice CRO - TRUNK OR TREAT SUPPLIE 10/28/2020 11/24/2020 75.86 1120 100.02.20.01.5721 2965/112420 1 Invoice AAAA BATTERIES 10/28/2020 11/24/2020 6.99 1120 100.06.18.01.5701 2965/112420 3 Invoice AARON FAHL - DRONE LEGALITIE 10/28/2020 11/24/2020 30.00 1120 100.06.18.01.5303 2965/112420 4 Invoice WIPES & SANITIZER 10/28/2020 11/24/2020 113.36 1120 100.06.18.01.5701 2965/112420 2 Invoice AARON FAHL - CONFERENCE 10/28/2020 11/24/2020 100.00 1120 100.06.18.01.5303 3189/112420 3 Invoice LOCKS FOR SPEED SIGNS 10/28/2020 11/24/2020 26.09 1120 100.02.20.01.5415 3189/112420 1 Invoice LOBBY PATCH DESIGN 10/28/2020 11/24/2020 1,297.00 1120 100.02.20.01.5415 3189/112420 2 Invoice WESTPHAL RECERT TASER 10/28/2020 11/24/2020 375.00 1120 100.02.20.01.5301 3189/112420 4 Invoice SHIRODA PHYSICAL AGILITY TES 10/28/2020 11/24/2020 50.00 1120 100.02.20.01.5845 3921/112420 3 Invoice PRESCHOOL CLASS PROJECT KI 10/28/2020 11/24/2020 91.85 1120 100.05.72.16.5702 3921/112420 1 Invoice RED CROSS BABYSITTING CERTI 10/28/2020 11/24/2020 412.46 1120 100.05.72.14.5730 3921/112420 2 Invoice HAND SANITIZER FOR DISPENSE 10/28/2020 11/24/2020 161.00 1120 100.05.72.10.5701 4263/112420 1 Invoice COURT CLERK NOTARY RENEWA 10/28/2020 11/24/2020 20.00 1120 100.01.08.00.5702 4271/112420 2 Invoice MAYOR EXPENSE 10/28/2020 11/24/2020 17.74 1120 100.01.06.00.5704 4271/112420 1 Invoice COVID SUPPLIES - PPE 10/28/2020 11/24/2020 100.00 1120 100.01.06.00.5704 5731/112420 1 Invoice HOODIE - DPW 10/28/2020 11/24/2020 37.80 1120 100.04.19.00.5225 5731/112420 2 Invoice JACKETS 10/28/2020 11/24/2020 167.99 1120 100.04.19.00.5225 6904/112420 1 Invoice MONREAL TASER RECERT 10/28/2020 11/24/2020 375.00 1120 100.02.20.01.5301 7106/112420 1 Invoice BINDER 10/28/2020 11/24/2020 2.00 1120 100.02.20.01.5701 Total CARDMEMBER SERVICE (ELAN):3,794.62 CARLIN SALES CORPORATION 775072-00 1 Invoice HERBICIDE 11/17/2020 11/24/2020 842.55 1120 215.06.00.00.6008 Total CARLIN SALES CORPORATION:842.55 CDW GOVERNMENT, INC 3596565 1 Invoice LABEL PRINTER 10/31/2020 11/24/2020 515.39 1120 100.05.71.00.5702 Total CDW GOVERNMENT, INC:515.39 CEN-PE CO CE111620-DP 1 Invoice TRUCKS 11/16/2020 11/24/2020 115.20 1120 100.04.51.07.5735 Total CEN-PE CO:115.20 CITY PRESS, INC 195259 1 Invoice 1049 11/10/2020 11/24/2020 46.25 1120 100.02.20.01.5723 Total CITY PRESS, INC:46.25 CLERK OF CIRCUIT COURT 19840 1 Invoice BOND JAMES CHRISTIE 11/09/2020 11/24/2020 500.00 1120 100.01.08.00.4272 Total CLERK OF CIRCUIT COURT:500.00 COMMERCE CENTER EAST 1 LLC CO112420-DR 1 Invoice DEVELOPER REFUND - #957 11/09/2020 11/24/2020 330.00 1120 507.00.00.00.2669 Page 4 of 12 Voucher Report Packet Page 178 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 4 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number Total COMMERCE CENTER EAST 1 LLC:330.00 COMPLETE OFFICE OF WIS 798492 1 Invoice TAPE DISPENSERS 11/05/2020 11/24/2020 5.84 1120 100.01.06.00.5701 799801 1 Invoice COURT OFFICE SUPPLIES 11/06/2020 11/24/2020 9.70 1120 100.01.08.00.5701 799803 1 Invoice TAPE, FOLDERS - SUPPLY ROOM 11/06/2020 11/24/2020 26.90 1120 100.01.06.00.5701 Total COMPLETE OFFICE OF WIS:42.44 CORE & MAIN LP N233001 1 Invoice PVC PIPE 10/26/2020 11/24/2020 115.00 1120 100.04.51.04.5745 N303093 1 Invoice HYDRANT PARTS 11/06/2020 11/24/2020 267.72 1120 605.54.06.41.5702 Total CORE & MAIN LP:382.72 DF TOMASINI, INC. DFT #2136=67 1 Invoice QUIETWOOD BREAK 11/09/2020 11/24/2020 4,121.00 1120 605.54.06.51.5410 Total DF TOMASINI, INC.:4,121.00 DIVERSIFIED BENEFIT SERV INC. 315339 1 Invoice HRA FEES - NOVEMBER 11/03/2020 11/24/2020 398.60 1120 100.01.06.00.5203 Total DIVERSIFIED BENEFIT SERV INC.:398.60 DOVER FLAG & MAP LLC 100920 1 Invoice CITY HALL FLAGS 11/11/2020 11/24/2020 913.00 1120 100.01.09.00.5415 Total DOVER FLAG & MAP LLC:913.00 EAGLE MEDIA, INC. 00131408 1 Invoice SIPPEL UNIFORMS 10/27/2020 11/24/2020 83.60 1120 100.02.20.01.5151 Total EAGLE MEDIA, INC.:83.60 ECITY TRANSACTIONS LLC 4020-63 2 Invoice PARK AND REC ADD ON 11/01/2020 11/24/2020 150.00 1120 100.05.72.10.5506 4020-63 3 Invoice SEWER UTILITY CHARGES 11/01/2020 11/24/2020 30.00 1120 601.61.63.42.5701 4020-63 4 Invoice WATER UTILITY CHARGES 11/01/2020 11/24/2020 30.00 1120 605.56.09.21.5712 4020-63 1 Invoice NOVEMBER MONTHLY 11/01/2020 11/24/2020 300.00 1120 100.01.06.00.6014 Total ECITY TRANSACTIONS LLC:510.00 ELLIOTT'S ACE HARDWARE 601005/112420 3 Invoice CREDIT - FLAGS -ELECTIONS 10/31/2020 11/24/2020 5.37- 1120 100.01.03.00.5704 601005/112420 7 Invoice SEWER 10/31/2020 11/24/2020 46.20 1120 601.61.61.15.5415 601005/112420 4 Invoice CREDIT - CAUTION TAPE 10/31/2020 11/24/2020 17.98- 1120 100.01.06.00.5701 601005/112420 8 Invoice UTILITIES - WATER 10/31/2020 11/24/2020 14.38 1120 605.54.06.54.5702 601005/112420 1 Invoice CREDIT - FESTIVAL SUPPLIES 10/31/2020 11/24/2020 31.63- 1120 100.01.06.00.5701 601005/112420 5 Invoice CREDIT - WELLS AND TOWER SU 10/31/2020 11/24/2020 8.99- 1120 605.52.06.25.5702 601005/112420 9 Invoice CREDIT - FINANCE CHARGE 10/31/2020 11/24/2020 1.41- 1120 100.01.09.00.5415 601005/112420 2 Invoice CREDIT - CITY HALL MAINT 10/31/2020 11/24/2020 29.88- 1120 100.01.09.00.5415 601005/112420 6 Invoice CH MAINT 10/31/2020 11/24/2020 44.68 1120 100.01.09.00.5415 Total ELLIOTT'S ACE HARDWARE:10.00 Page 5 of 12 Voucher Report Packet Page 179 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 5 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number FORCE AMERICA INC. IN001-1475117 1 Invoice #12 09/17/2020 11/24/2020 106.95 1120 100.04.51.07.5405 Total FORCE AMERICA INC.:106.95 FOREMOST PROMOTIONS 520280 1 Invoice CRO SUPPLIES - TATTOOS 10/29/2020 11/24/2020 373.77 1120 100.02.20.01.5721 Total FOREMOST PROMOTIONS:373.77 HARDWIRE, LLC INV20-001189 1 Invoice SQD 18 SUPPLIES 08/27/2020 11/24/2020 501.72 1120 410.08.91.20.6501 Total HARDWIRE, LLC:501.72 HARTLING TRUCKING LLC 223 1 Invoice HAULING STONE 11/01/2020 11/24/2020 1,103.70 1120 100.04.51.02.5741 Total HARTLING TRUCKING LLC:1,103.70 HAWKINS, INC. 4819342 1 Invoice AZONE 10/26/2020 11/24/2020 545.80 1120 605.53.06.31.5750 4819342 2 Invoice AZONE 10/26/2020 11/24/2020 545.80 1120 601.61.61.12.5750 Total HAWKINS, INC.:1,091.60 HEARTLAND BUSINESS SYSTEMS 407158-H 1 Invoice BLOCK OF FLEX TIME 11/04/2020 11/24/2020 2,500.00 1120 100.01.14.00.5840 407756-H 1 Invoice ADDITIIONAL STORAGE FOR NET 11/05/2020 11/24/2020 3,463.03 1120 410.08.90.14.6511 409062-H 1 Invoice ADDITONAL STORAGE FOR NETO 11/12/2020 11/24/2020 2,689.00 1120 410.08.90.14.6511 Total HEARTLAND BUSINESS SYSTEMS:8,652.03 HOLZ MOTORS, INC 98628 1 Invoice 2018 MALIBU SQ 14 REPLACEME 11/19/2020 11/24/2020 16,133.00 1120 100.01.06.00.6108 Total HOLZ MOTORS, INC:16,133.00 HUMPHREY SERVICE PARTS 1225912 1 Invoice #13 BATTERY 11/03/2020 11/24/2020 345.42 1120 100.04.51.07.5405 1226897 1 Invoice LEAF MACHINE 11/13/2020 11/24/2020 99.69 1120 100.04.51.07.5405 Total HUMPHREY SERVICE PARTS:445.11 HYDROCORP 0059457-IN 1 Invoice OCTOBER PAYMENT 10/31/2020 11/24/2020 2,196.00 1120 605.56.09.23.5815 Total HYDROCORP:2,196.00 INGERSOLL LIGHTING 119409 1 Invoice LIBRARY MAINT 11/11/2020 11/24/2020 194.00 1120 100.05.71.00.5415 Total INGERSOLL LIGHTING:194.00 INPRO CORPORATION 2016419 1 Invoice DIEDRICH NAME PLATE 11/11/2020 11/24/2020 35.15 1120 100.02.20.01.5701 Page 6 of 12 Voucher Report Packet Page 180 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 6 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number Total INPRO CORPORATION:35.15 INTOXIMETERS, INC. 667607 1 Invoice PBT STRAWS 11/09/2020 11/24/2020 176.00 1120 100.02.20.01.5722 Total INTOXIMETERS, INC.:176.00 ITU ABSORB TECH, INC CR092420-DP 1 Invoice CREDIT - DOUBLE PMT 09/24/2020 11/24/2020 39.80- 1120 100.04.51.01.5228 MSOACB0015 1 Invoice FIRST AID SUPPLIES 10/21/2020 11/24/2020 64.70 1120 100.04.51.01.5228 MSOACB0015 1 Invoice FIRST AID SUPPLIES 10/21/2020 11/24/2020 67.65 1120 100.04.51.01.5228 Total ITU ABSORB TECH, INC:92.55 JOHNNY'S PETROLEUM PROD INC 40214/40215 1 Invoice 3001 GAL NO LEAD 11/18/2020 11/24/2020 5,860.95 1120 100.04.51.07.5736 40214/40215 2 Invoice 5002 GAL DIESEL 11/18/2020 11/24/2020 10,129.05 1120 100.04.51.07.5736 Total JOHNNY'S PETROLEUM PROD INC:15,990.00 KOWALKOWSKI PLUMBING LLC 6346 2 Invoice COVID IMPROVEMENTS 11/06/2020 11/24/2020 1,956.46 1120 605.56.09.35.6067 6346 1 Invoice COVID IMPROVEMENTS 11/06/2020 11/24/2020 1,956.46 1120 601.61.61.15.5415 Total KOWALKOWSKI PLUMBING LLC:3,912.92 KUJAWA ENTERPRISES INC. 136298 1 Invoice NOV PLANT MAINT 11/03/2020 11/24/2020 61.00 1120 100.05.71.00.5415 Total KUJAWA ENTERPRISES INC.:61.00 LITTLE MUSKEGO LAKE DIST LI112420-LML 1 Invoice 2019 TAX SETTLEMENT 11/18/2020 11/24/2020 16,840.46 1120 501.00.00.00.2307 Total LITTLE MUSKEGO LAKE DIST:16,840.46 MACHI PROPERTIES BV LLC MA112420-BO 1 Invoice MACH/HARVEST CT CASH BOND 11/18/2020 11/24/2020 30,624.00 1120 505.00.00.00.2625 Total MACHI PROPERTIES BV LLC:30,624.00 MARCO TECHNOLOGIES LLC INV8130487 1 Invoice CONSULANT- PHONES 11/04/2020 11/24/2020 262.50 1120 100.01.14.00.5840 INV8156723 1 Invoice PHONE HELP DURING ELECTION 11/12/2020 11/24/2020 37.50 1120 100.01.14.00.5840 INV8156724 1 Invoice PHONE/VOICEMAIL HELP 11/12/2020 11/24/2020 337.50 1120 100.01.14.00.5840 Total MARCO TECHNOLOGIES LLC:637.50 MARYNIK, SHARON MA112420-FIN 1 Invoice LAKE FEE REFUND 11/06/2020 11/24/2020 35.00 1120 001.00.00.00.1005 Total MARYNIK, SHARON:35.00 MATHER, THOMAS & MARLENE MA112420-FIN 1 Invoice REFUND OF DUPLICATE PAYMEN 11/17/2020 11/24/2020 190.13 1120 001.00.00.00.1005 Page 7 of 12 Voucher Report Packet Page 181 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 7 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number Total MATHER, THOMAS & MARLENE:190.13 MERIT ASPHALT, INC. 96270 1 Invoice ASPHALT PATCH - CANFIELD - WA 11/04/2020 11/24/2020 3,980.00 1120 605.54.06.52.5410 96271 1 Invoice ASPHALT PATCH - AGATE DR - WA 11/04/2020 11/24/2020 1,650.00 1120 605.54.06.52.5410 Total MERIT ASPHALT, INC.:5,630.00 MHS MUSIC FRIENDS MHS112420-FI 1 Invoice CITY HALL POINSETTIAS 11/11/2020 11/24/2020 300.00 1120 100.01.06.00.5701 Total MHS MUSIC FRIENDS:300.00 MICROMARKETING LLC 828606 1 Invoice AV 10/30/2020 11/24/2020 84.79 1120 100.05.71.02.5711 828827 1 Invoice AV 11/03/2020 11/24/2020 39.99 1120 100.05.71.02.5711 Total MICROMARKETING LLC:124.78 MIDWEST TAPE 99552746 1 Invoice AV 10/27/2020 11/24/2020 34.99 1120 100.05.71.02.5711 99590942 1 Invoice AV 11/03/2020 11/24/2020 89.98 1120 100.05.71.02.5711 Total MIDWEST TAPE:124.97 MILWAUKEE JOURNAL SENTINEL 0003559095 2 Invoice ELECTION NOTICES 10/31/2020 11/24/2020 106.14 1120 100.01.03.00.5704 0003559095 3 Invoice MISC PUBLICATIONS 10/31/2020 11/24/2020 272.32 1120 100.01.06.00.6001 0003559095 1 Invoice PSC ASSESSMENT 10/31/2020 11/24/2020 82.96 1120 605.58.04.08.6701 0003559474 2 Invoice PUMP HOUSE #11 10/31/2020 11/24/2020 92.90 1120 605.00.00.00.1980 0003559474 1 Invoice MISC PUBLICATIONS 10/31/2020 11/24/2020 527.16 1120 100.01.06.00.6001 Total MILWAUKEE JOURNAL SENTINEL:1,081.48 MISS BECKY LLC 682 1 Invoice CLASS INSTRUCTION FALL DANC 11/09/2020 11/24/2020 225.00 1120 100.05.72.13.5110 Total MISS BECKY LLC:225.00 MOORLAND GOLF CENTER MO112420-RE 1 Invoice CLASS INSTRUCTION GOLF LESS 11/09/2020 11/24/2020 2,310.00 1120 100.05.72.13.5110 Total MOORLAND GOLF CENTER:2,310.00 MUSKEGO CONCRETE CONST. INC MU102420-UT 1 Invoice PARKING LOT CONCRETE WORK 11/05/2020 11/24/2020 2,598.00 1120 605.56.09.23.5815 MU102420-UT 2 Invoice PARKING LOT CONCRETE WORK 11/05/2020 11/24/2020 2,598.00 1120 601.61.61.15.5415 Total MUSKEGO CONCRETE CONST. INC:5,196.00 MUSKEGO NORWAY SCHOOL DISTRICT MU112420-RE 1 Invoice REFUND FOR CANCELLED CROS 10/10/2020 11/24/2020 150.00 1120 100.05.72.02.4317 Total MUSKEGO NORWAY SCHOOL DISTRICT:150.00 NELSON SYSTEMS INCORPORATED P101586 1 Invoice CALL RECORDING SYSTEM 10/16/2020 11/24/2020 616.70 1120 100.02.20.01.5504 Page 8 of 12 Voucher Report Packet Page 182 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 8 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number P101601 1 Invoice CALL RECORDING 10/21/2020 11/24/2020 1,588.64 1120 100.02.20.01.5504 Total NELSON SYSTEMS INCORPORATED:2,205.34 NEW BERLIN POLICE DEPT. NE112420-PD 1 Invoice NBPD REIMBURSEMENT FOR SEA 08/03/2020 11/24/2020 964.44 1120 100.02.20.01.4127 Total NEW BERLIN POLICE DEPT.:964.44 NORTHERN LAKE SERVICE INC 390789 1 Invoice SAMPLES 11/13/2020 11/24/2020 60.00 1120 605.56.09.23.5865 Total NORTHERN LAKE SERVICE INC:60.00 NORTHERN TOOL & EQUIPMENT NE112420-PD 1 Invoice M18 FUEL MTIW 11/12/2020 11/24/2020 399.00 1120 100.04.51.11.5702 Total NORTHERN TOOL & EQUIPMENT:399.00 OCCUPATIONAL HEALTH CENTERS 103261306 1 Invoice AUDIO TESTING 10/28/2020 11/24/2020 539.00 1120 100.01.06.00.6021 103264973 1 Invoice AUDIO TESTING 11/04/2020 11/24/2020 192.50 1120 100.01.06.00.6021 Total OCCUPATIONAL HEALTH CENTERS:731.50 PICKLE, JOHN JUNIOR 00020379 1 Invoice COURT ORDERED REFUND 09/21/2020 11/24/2020 157.50 1120 100.01.08.00.4269 Total PICKLE, JOHN JUNIOR:157.50 PINKY ELECTRIC INC. 3731 1 Invoice HAND DRYERS 10/30/2020 11/24/2020 6,990.00 1120 202.08.94.74.6584 Total PINKY ELECTRIC INC.:6,990.00 PROHEALTH CARE 18382436 1 Invoice BLOOD TESTS 11/01/2020 11/24/2020 210.00 1120 100.02.20.01.5722 305546 1 Invoice KREGER/SHIRODA PHYSICALS 11/02/2020 11/24/2020 249.00 1120 100.02.20.01.5845 Total PROHEALTH CARE:459.00 QUILL CORP 11622814 1 Invoice EXPO MARKERS 10/23/2020 11/24/2020 6.79 1120 100.04.51.01.5701 11624750 1 Invoice TIME CARDS 10/23/2020 11/24/2020 25.78 1120 100.04.51.03.5704 Total QUILL CORP:32.57 ROZMAN TRUE VALUE/PW 22000/112420 1 Invoice MISC PARTS AND SUPPLIES 11/25/2020 11/24/2020 168.62 1120 100.04.51.07.5405 Total ROZMAN TRUE VALUE/PW:168.62 ROZMAN TRUE VALUE/UT 25000/112420 1 Invoice SEWER SUPPLIES 10/25/2020 11/24/2020 61.63 1120 601.61.61.16.5411 25000/112420 2 Invoice SHOP SUPPLIES 10/25/2020 11/24/2020 80.36 1120 605.54.06.41.5702 Total ROZMAN TRUE VALUE/UT:141.99 Page 9 of 12 Voucher Report Packet Page 183 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 9 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number RUEKERT & MIELKE INC 134196 2 Invoice SCADA SERVICE 9/26-10/23/20 11/10/2020 11/24/2020 415.95 1120 605.56.09.23.5620 134196 1 Invoice SCADA SERVICE 9/26-10/23/20 11/10/2020 11/24/2020 415.95 1120 601.61.63.42.5430 134197 1 Invoice FACILITIES PLAN REVIEW 11/10/2020 11/24/2020 2,154.00 1120 601.61.63.43.5815 Total RUEKERT & MIELKE INC:2,985.90 SAFEWAY PEST MANAGEMENT INC. 649037 1 Invoice NOVEMBER PEST CONTROL - CIT 11/17/2020 11/24/2020 40.00 1120 100.01.09.00.5415 Total SAFEWAY PEST MANAGEMENT INC.:40.00 SCHMIDT, GREGG SC112420-FIN 1 Invoice UTILITY BILL DOUBLE PMT 11/16/2020 11/24/2020 167.66 1120 001.00.00.00.1005 Total SCHMIDT, GREGG:167.66 SECURIAN FINANCIAL GROUP, INC. 002832L/11242 1 Invoice LIFE INS PREMIUMS - DECEMBER 11/30/2020 11/24/2020 2,750.03 1120 100.00.00.00.2207 Total SECURIAN FINANCIAL GROUP, INC.:2,750.03 SOMAR TEK LLC/ ENTERPRISES 102070 1 Invoice PETZ FLASHLIGHT BATTERY 11/05/2020 11/24/2020 17.99 1120 100.02.20.01.5151 102076 1 Invoice LOCKOUT TOOL SQD 18 11/09/2020 11/24/2020 56.99 1120 100.02.20.01.5405 102081 1 Invoice LOCKOUT TOOLS REPLACMENTS 11/13/2020 11/24/2020 26.97 1120 100.02.20.01.5405 102084 1 Invoice TEMPLE FLASHLIGHT BATTERY 11/17/2020 11/24/2020 17.99 1120 100.02.20.01.5151 Total SOMAR TEK LLC/ ENTERPRISES:119.94 SUPER WESTERN, INC. SU112420/EN 1 Invoice BAY LANE DRIVE RECONSTRUCTI 10/26/2020 11/24/2020 102,681.20 1120 410.08.91.19.6504 Total SUPER WESTERN, INC.:102,681.20 TAPCO INC. I683029 1 Invoice IDLE ISLE PAY STATION MONTHLY 11/04/2020 11/24/2020 100.00 1120 100.04.51.11.5820 Total TAPCO INC.:100.00 THE ALSTAR CO LLC 19579 1 Invoice TRUCK BATTERY 11/04/2020 11/24/2020 104.73 1120 605.56.09.33.5735 Total THE ALSTAR CO LLC:104.73 TIAA COMMERCIAL FINANCE, INC. 7685273 1 Invoice 11/1/20-11/30/20 STAFF PRINTER 11/10/2020 11/24/2020 336.55 1120 100.05.71.00.5401 Total TIAA COMMERCIAL FINANCE, INC.:336.55 TIME WARNER CABLE 723336001110 1 Invoice MONTHLY CHARGE- MOORELAND 11/07/2020 11/24/2020 74.98 1120 100.04.51.11.5415 Total TIME WARNER CABLE:74.98 U.S. CELLULAR 0403321529 2 Invoice MONTHLY CHARGE-POLICE 10/28/2020 11/24/2020 186.35 1120 100.02.20.01.5604 0403321529 6 Invoice MONTHLY CHARGE-LIBRARY 10/28/2020 11/24/2020 20.00 1120 100.05.71.00.5602 Page 10 of 12 Voucher Report Packet Page 184 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 10 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number 0403321529 4 Invoice MONTHLY CHARGE-SEWER SCAD 10/28/2020 11/24/2020 142.75 1120 601.61.63.42.5606 0403321529 8 Invoice MONTHLY CHARGE-DPW 10/28/2020 11/24/2020 365.00 1120 100.04.51.01.5605 0403321529 1 Invoice MONTHLY CHARGE- COM. DEV 10/28/2020 11/24/2020 20.00 1120 100.06.18.01.5601 0403321529 5 Invoice MONTHLY CHARGE-IS 10/28/2020 11/24/2020 40.00 1120 100.01.14.00.5601 0403321529 9 Invoice MONTHLY CHARGE-REC 10/28/2020 11/24/2020 10.00 1120 100.05.72.10.5601 0403321529 3 Invoice MONTHLY CHARGE-WATER SCAD 10/28/2020 11/24/2020 142.75 1120 605.56.09.21.5607 0403321529 7 Invoice MONTHLY CHARGE-FINANCE 10/28/2020 11/24/2020 30.00 1120 100.01.03.00.5601 Total U.S. CELLULAR:956.85 USA BLUE BOOK 419647 1 Invoice SEWER FLAGS 11/16/2020 11/24/2020 94.42 1120 601.61.63.42.5701 419647 2 Invoice WATER SUPPLIES 11/16/2020 11/24/2020 288.50 1120 605.53.06.32.5702 Total USA BLUE BOOK:382.92 VON BRIESEN & ROPER S.C. 335710 1 Invoice ATTORNEY FEES 10/27/2020 11/24/2020 228.00 1120 100.01.05.00.5805 Total VON BRIESEN & ROPER S.C.:228.00 WARRIOR WASH, LLC WA112420-PD 1 Invoice CAR WASHES 10/31/2020 11/24/2020 92.00 1120 100.02.20.01.5405 Total WARRIOR WASH, LLC:92.00 WAUKESHA CO SHERIFF'S DEPT 19795 1 Invoice WARRANT - WKSO - MARY K. MIS 11/02/2020 11/24/2020 259.60 1120 100.01.08.00.4272 Total WAUKESHA CO SHERIFF'S DEPT:259.60 WAUKESHA COUNTY TREASURER 2020-0000013 1 Invoice INMATE BILLING 11/06/2020 11/24/2020 34.90 1120 100.01.08.00.6017 2020-0000028 1 Invoice ADULT MASKS AND KID MASKS 10/29/2020 11/24/2020 679.50 1120 100.05.71.00.5703 Total WAUKESHA COUNTY TREASURER:714.40 WE ENERGIES 3665-286-012/1 1 Invoice STREET LIGHTING 11/02/2020 11/24/2020 5,909.66 1120 100.04.51.06.5910 3836-104-158/1 1 Invoice L/S GROUP 10/20 10/30/2020 11/24/2020 1,260.23 1120 601.61.61.20.5910 5806-757-741/1 1 Invoice PARKS 10/30/2020 11/24/2020 850.53 1120 100.04.51.11.5910 Total WE ENERGIES:8,020.42 WI STATE LAB OF HYGIENE 652357 1 Invoice WATER TESTING 10/31/2020 11/24/2020 1,858.00 1120 215.06.00.00.6008 Total WI STATE LAB OF HYGIENE:1,858.00 WIND LAKE AUTO PARTS 1975/112420 3 Invoice MOWER MAINT 10/31/2020 11/24/2020 141.71 1120 100.04.51.11.5405 1975/112420 1 Invoice DPW VEHICLE MAINT 10/31/2020 11/24/2020 1,375.07 1120 100.04.51.07.5405 1975/112420 2 Invoice PD VEHICLE MAINT 10/31/2020 11/24/2020 188.51 1120 100.02.20.01.5405 Total WIND LAKE AUTO PARTS:1,705.29 WIS RURAL WATER ASSOC 4032 1 Invoice SAFETY AUDIT 11/10/2020 11/24/2020 212.37 1120 601.61.61.12.5228 Page 11 of 12 Voucher Report Packet Page 185 CITY OF MUSKEGO Payment Approval Report - Board Report Alpha Page: 11 Report dates: 11/11/2020-11/24/2020 Nov 20, 2020 11:20AM Invoice Number SeqNo Type Description Invoice Date Payment Due Date Total Cost GL Period GL Account Number Total WIS RURAL WATER ASSOC:212.37 WISCONSIN DEPT OF JUSTICE - CIB G2451/112420 1 Invoice BACKGROUND CHECKS FOR PRE 10/31/2020 11/24/2020 42.00 1120 100.05.72.16.6002 L6806T/112420 1 Invoice RECORD NAME SEARCHES 11/01/2020 11/24/2020 399.00 1120 100.01.06.00.6002 Total WISCONSIN DEPT OF JUSTICE - CIB:441.00 Grand Totals: 322,529.38 Report Criteria: Detail report. Invoices with totals above $0 included. Paid and unpaid invoices included. [Report].Description = {<>} "1099 adjustment" Invoice Detail.Type = {>} "adjustments" Page 12 of 12 Voucher Report Packet Page 186